In re J.M.
Filed 9/10/12 In re J.M. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT
In re J.M., a Person Coming
Under the Juvenile Court Law.
B239029
(Los Angeles
County
Super. Ct.
No. CK83592)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
O.E. et al.,
Defendants and Appellants.
APPEAL from
an order of the Superior Court
of
County, Margaret Henry, Judge. Affirmed.
Catherine
C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant
O.E.
Karen B.
Stalter, under appointment by the Court of Appeal, for Defendant and Appellant
G.M.
Linda Rehm,
under appointment by the Court of Appeal, for Appellant and Child.
John F.
Krattli, County Counsel, James M. Owens, Assistant County
County Counsel, for Plaintiff and Respondent.
The juvenile court
terminated mother O.E.’s and father G.M.’s parental rights over their infant
child, J.M. On appeal, both parents and
minor contend that the trial court erred when it terminated parental rights by
declining to apply the beneficial parental relationship exception to
adoption. (Welf. & Inst. Code, §
366.26, subd. (c)(1)(B)(i).)
name="_ftnref1" title="">[1] Finding no error, we affirm the juvenile
court order.
J.M. first came to the
attention of the Los Angeles County
Department of Children and Family Services on August
9, 2010, when the Department received a referral for emotional abuse and severe
neglect. Then-one-month-old J.M. was
living with mother, O.E., and father, G.M.
The referral alleged that mother was a victim of domestic violence, having
been choked and kicked by father while he held J.M. in his arms.
A Department social worker
interviewed mother, who reported that on August 7,
2010,
father had returned home angry and intoxicated, and pushed, choked and hit her
while he was holding J.M. Law
enforcement responded to the family home that day, but father had left with
J.M. and was not arrested. Mother said
that father had a drinking problem and that he drank “excessively” on the
weekends. According to mother, there had
been previous incidents of domestic violence.
Mother decided to leave the family home and live with maternal
uncle. Maternal uncle confirmed mother’s
statements that father drank and was verbally abusive to mother.
Father denied choking or scratching
mother. He also denied that he had an
alcohol problem or that he was drunk on August 7, 2010. Father said that he was angry that day
because mother had broken her cell phone and wanted to hit him with a flower
vase.
On August
12, 2010, the Department filed a petition pursuant to section 300, subdivisions
(a) and (b), alleging that parents had a history of domestic violence and
engaged in violent altercations in J.M.’s presence, and that father had a
history of alcohol abuse and currently abused alcohol, placing J.M. at risk of
harm. The court issued a temporary
restraining order against father, which would expire on September 2, 2010. The court detained J.M. as to father,
releasing him to mother. The court also
ordered monitored visitation twice per week, family maintenance services for
mother, and family reunification services for father.
On August
19, 2010, maternal uncle told the Department that mother had left his home to
reunite with father. Later that day, a
Department social worker made an unannounced visit to maternal uncle’s
apartment, and found maternal uncle intoxicated and argumentative. Mother told the Department that she wanted to
“‘cancel’” the court’s intervention and minimized the domestic violence. She no longer wanted to participate in the court
case and wanted to reunite with father.
J.M. was taken into protective custody and placed in foster care.
On August 24, 2010, the Department
filed an ex parte application for an
order pursuant to section 385, seeking to remove J.M. from mother’s custody,
due to mother’s failure to abide by the restraining order and protect J.M. At the section 385 hearing, the court
detained J.M. from mother and ordered monitored visitation for both parents at
least twice a week, with parents visiting separately.
On August 20 and 25, 2010, the
Department interviewed father and mother, respectively, for the jurisdictional
hearing. Mother retracted her previous
statements, claiming father had never hit her.
She stated instead that she intended to hit father with a vase, but
father had reached out while he was holding J.M. and took the vase from
her. Mother had always been jealous that
father spoke to other women who lived in the family home, and she and father
had been verbally argumentative. Mother
told police that father had scratched her, even though mother had burned
herself while toasting bread. She
“‘never thought it would lead to all this.’”
She lied when she accused father of being drunk on August 7, 2010, and
she had never seen him do drugs.
Father denied ever hitting
mother. According to father, mother was
the one who was “slightly aggressive,” and she was so upset she broke her own
phone. Mother had made false allegations
because she was upset with father.
Father denied being drunk on August 7, 2010. He drinks a few beers about once a
month.
Neither the paternal grandmother nor the maternal aunt
observed any abuse in the family home.
The maternal uncle could not be reached.
Both parents said they loved J.M.
and each other and wanted to regain custody of J.M. They believed mother’s jealousy was the
family’s main problem. The Department
opined that the incident on August 7, 2010, escalated from yelling to mother
grabbing a vase and threatening father.
The Department believed that both parents needed to learn conflict resolution
skills.
At a September 2, 2010 pretrial resolution conference,
the court ordered that J.M. be placed with paternal grandmother once the
Department could verify clean criminal background checks on the adults in the
home, and after the grandmother acquired appropriate bedding for J.M. On September 16, 2010, the Department placed
J.M. with paternal grandmother.
At the combined
jurisdictional/disposition hearing, parents waived their rights and submitted
on the petition. The petition was
sustained as amended to exclude allegations of a physical confrontation between
parents and to exclude the allegation that father abused alcohol. The sustained allegation, under section 300,
subdivision (b), was that parents “have a history of
altercations in the child’s presence[] . . . endanger[ing] the
child’s physical and emotional health and safety and plac[ing] the child at
risk.”
The court ordered reunification
services for both parents. Father
was ordered to participate in domestic violence counseling, conjoint counseling
with mother if parents intended to remain together, and six weekly, random
alcohol tests. If any test was missed or
dirty, father would be required to participate in a program of alcohol
rehabilitation. The court permitted
father to have monitored visits at paternal grandmother’s house and gave the
Department discretion to liberalize his visits.
Mother was also ordered to participate in domestic violence counseling,
and her visits were to be monitored, with the Department having discretion to
liberalize.
On December 17, 2010, the Department
submitted a three-month progress report. Parents were living together. Mother attended five domestic violence
classes, as well as anger management and parenting education classes, which
were not ordered by the court. Father
enrolled in domestic violence counseling on December 4, 2010, but had not
attended any classes yet. Both parents
had just enrolled in individual and conjoint counseling on December 4, but had
not yet attended any sessions. Father
tested negative for alcohol six times in September and October, and was
therefore not required to participate in alcohol rehabilitation. According to paternal grandmother, mother and
father visited J.M. “on a regular basis,” and there had been no problems. The Department concluded that since the
parents had just started to comply with the case plan, it would be “detrimental”
to return minor to the parents.
The court liberalized mother’s visits to unmonitored,
for two to four hours at a time, on the condition that the visits were not to
occur in the family home and that father was not to be present during the
visits.
On March 18, 2011, the Department
submitted a report for the six-month review hearing. (§ 366.21, subd. (e).) Mother and father reported that they intended
to stay together as a couple and that they had not had any recent problems in
their relationship. Father attended
eight sessions of domestic violence counseling, where his instructor said he
was “attentive, cooperative, and willing to share.” Mother had started individual therapy, and
her therapist reported that mother is “‘actively engaged in the therapeutic
process . . . her priority appears to be her role of a mother and
improved communication with her partner.’”
She also completed 12-week parent education and anger management
courses. Parents had not started
conjoint counseling, as mother’s therapist recommended waiting until mother
completed individual counseling first.
Father visited then-eight-month-old J.M. several times a week. Mother also visited several times a week, and
had watched J.M. for several hours at a time while paternal grandmother
worked. Parents sometimes visited J.M.
together on weekends. According to
paternal grandmother, the parents’ visits had been uneventful and both parents
behaved appropriately. She was willing
to adopt J.M. if parents failed to reunify with him. The Department reported that J.M. was doing
well in paternal grandmother’s care and was developmentally on target.
At the six-month review hearing, the court gave the
Department discretion to allow the parents to visit together and to expand
parents’ visits to include overnight visitation.
On May 13, 2011, the Department
submitted another progress report.
Mother was having unmonitored four-hour visits with J.M. on weekends,
and several monitored visits throughout the week. Father’s visits remained monitored. Parents had not visited J.M. together, but
paternal grandmother indicated she would be comfortable if the parents began to
visit J.M. together in her home. Mother
and father had participated in five conjoint counseling sessions, but there was
no progress report from their therapist.
There was also no information on father’s progress in domestic violence
counseling. Mother completed 26 domestic
violence sessions, and 12 individual therapy sessions. Her therapist reported that mother “‘is
actively engaged in the therapeutic process and presents as respectful and
cooperative.’”
At the May 13, 2011 hearing, the court liberalized
mother’s visits to unmonitored for eight hours at a time, and permitted parents
to visit together while monitored by grandmother, but did not permit conjoint
unmonitored visits.
On September 16, 2011, the
Department submitted a status review report for the 12-month review
hearing. (§ 366.21, subd. (f).) On July 1, 2011, each parent reported to the
social worker that they had broken up and mother had moved out. According to mother, father would come home
drunk in the early morning, and was controlling and jealous. Mother felt that father was not spending
enough time with J.M., and that when father was visiting J.M. at paternal
grandmother’s house, he spent his time socializing with his family members
instead of focusing on J.M. She also
told her counselor that father pushed and shoved her when she attempted to
leave the house, but clarified later that father had only grabbed her hand as
she was leaving the house. She shook him
off and he released her hand quickly.
The parents’ couples counselor informed the Department that she could no
longer provide the parents with counseling due to the recent incident of
domestic violence.
Father denied drinking excessively
and returning home late, saying that he sometimes had some beers after work
with his boss and coworkers. He accused
mother of being possessive and emotionally unstable. He explained that once while they were arguing,
she started screaming “‘help me’” in their apartment when he had not touched
her. Mother threatened to overdose on
Tylenol on two occasions, but father took the pills away from her. Mother denied ever trying to overdose with
pills.
Later in July, mother told the
Department that she and father had reconciled and were living together
again. She said that father had stopped
drinking and returning home late.
In early September, mother told the
Department social worker that she was worried about the possibility of domestic
violence in the future, but denied it occurred in the past. Father told the social worker that he loved
mother but was “confused” about their relationship. He feared that due to mother’s lies, he might
end up in jail.
Both parents agreed that returning
J.M. to them in such an unstable environment could pose a risk to his safety
and well-being. Father stated he
preferred J.M. to remain with the paternal grandmother, and agreed with a plan
for the him to be adopted by her.
Between March and September 2011,
father visited J.M. at least three times a week for about an hour each
visit. Paternal grandmother reported his
interactions with J.M. were “affectionate and attentive.” Mother visited about two to three times a
week, and her visits had been unmonitored for up to eight hours outside
paternal grandmother’s home. Paternal
grandmother stated that mother returned J.M. clean and well cared for. Mother said she was very happy during her
visits with J.M. J.M. recognized both
parents and was excited to see them.
However, parents had not visited J.M. together in paternal grandmother’s
home.
Due to the parents’ difficulties in
their relationship, the Department recommended that both parents’ visits be
monitored. The Department also
recommended that the juvenile court terminate reunification services and set a
hearing to select and implement a permanent plan. Father agreed that minor should remain with
paternal grandmother, who preferred to become J.M.’s legal guardian. Paternal grandmother said she had a good
relationship with mother and father, and would continue to be in contact with
them if a plan of legal guardianship was implemented. Paternal grandmother “loves [J.M.] like . . .
her own son,” and “wants to raise [J.M.] within the family.”
At the 12-month review hearing, mother challenged the
termination of reunification services and requested a contested hearing. At the September 23, 2011 contested hearing,
mother represented that while she was still living with father, she intended to
move out after she had saved enough money.
Both parents requested further reunifications services. Father represented that he had completed 27
domestic violence classes. The court
terminated family reunification services and set the section 366.26
hearing.
On January 12, 2012, the Department
reported that paternal grandmother had decided to pursue adoption instead of
guardianship. She had been hopeful
parents could resolve their issues and reunify with J.M., but decided she wanted
to adopt because she had “recognize[d] that the parents [would] not ameliorate
their issues as a couple or as individuals.”
Paternal grandmother was open to continuing to monitor visitation
between J.M. and his parents. Her home
study was completed and approved on January 11, 2012.
At the section 366.26 hearing, mother objected to the
termination of parental rights, and the court set the matter for contest. The contested hearing took place on January
20, 2012. Father testified that he
visited J.M. three to four days a week, for two to four hours each visit, and
five to six hours on Sunday. During the
visits, he fed J.M., read to him, watched movies with him, played with him, and
helped bathe him. J.M. called father
“Poppy,” and when father arrived for visits, he would run up and embrace
father. Father testified he felt a
strong bond with J.M.
Mother testified that she had been
having unmonitored visits with J.M. for about a year and a half. She visited him for eight hours on Monday,
and before she started working, she visited him every day for about three
hours. Mother was there when J.M. took
his first steps at 11 months old. J.M.
calls her “Mommy,” but also refers to paternal grandmother as “Mommy.” When mother arrives for visits, J.M. would
run to her and embrace her.
Minor’s counsel argued she believed
that parents had demonstrated commitment to J.M., visited him very regularly,
and mother had unmonitored visitation for most of his life. Mother and father contended that parental
rights should not be terminated, because both parents had maintained regular
visitation and J.M. would benefit from a continuing relationship.
The juvenile court found that the
section 366.26, subdivision (c)(1)(B)(i) exception to the termination of
parental rights did not apply. The court
concluded that “adoption is the best plan if that’s what the caretaker thinks
the best plan is. I don’t think she
rushed into the adoption plan. I don’t
think she would have gone legal guardianship if she thought she could otherwise
control the relationship, but I think we have a volatile relationship which can
be detrimental to the child and that the caretaker needs the ultimate authority
of being the real and permanent parent.”
The court concluded that it would not be detrimental to J.M. to be
adopted. Paternal grandmother was
designated as J.M.’s prospective adoptive parent, and parental rights were
terminated. At the time parental rights were
terminated, J.M. was 18 months old.
On January 20, 2012, mother and father
filed timely notices of appeal. On
February 24, 2012, minor’s counsel also timely appealed.
Mother, father, and minor contend
that the juvenile court erred in finding that the beneficial parental
relationship exception to the termination of parental rights in section 366.26,
subdivision (c)(1)(B)(i) did not apply.
Under section 366.26, subdivision (c)(1), the juvenile court must
terminate parental rights if it finds by clear and convincing evidence it is
likely the child will be adopted if parental rights are terminated. Nevertheless, the court will not terminate
parental rights if it determines that doing so would be detrimental to the
child based on one of several statutory exceptions. (§ 366.26, subd. (c)(1)(B).) The party challenging termination of parental
rights bears the burden of proving that one or more of the statutory exceptions
applies. (In re C.F. (2011) 193 Cal.App.4th 549, 553; In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
To establish the beneficial
parent-child relationship exception, the parents must prove termination of
parental rights would be detrimental to J.M. because: (1) parents maintained regular visitation and
contact with J.M., and (2) J.M. would benefit from continuing his relationship
with parents. (§ 366.26, subd.
(c)(1)(B)(i); In re Aaliyah R. (2006) 136 Cal.App.4th 437,
449-450.) The “benefit” prong of the
exception requires a parent to prove that his or her relationship with the
child “promotes the
well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27
Cal.App.4th 567, 575.) “Because a
parent’s claim to . . . an exception [to termination of parental
rights] is evaluated in light of the Legislature’s preference for adoption, it
is only in exceptional circumstances that a court will choose a permanent plan
other than adoption. [Citation.]” (In re
Scott B. (2010) 188 Cal.App.4th 452, 469.)
Some courts have held that
challenges on appeal to a juvenile court’s determination under section 366.26,
subdivision (c)(1)(B)(i) are governed by the substantial evidence standard of
review. (See, e.g., In re
Autumn H., supra, 27
Cal.App.4th at p. 576 [“we
presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of
every reasonable inference and resolving all conflicts in support of the
order”]; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53
& fn. 4.) Others have applied an
abuse of discretion standard of review.
(See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [“‘a reviewing court will not disturb that decision
unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination’”]; In re
Aaliyah R., supra, 136
Cal.App.4th at p. 449.) Under either
standard, we find no error with the juvenile court’s order.
parent-child relationship must promote “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 a new, adoptive parents.
. . . [T]he court balances the strength and quality of
the parent/child relationship in a tenuous placement against the security and
sense of belonging a new family would confer.
If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would
be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (
also In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
To establish the
application of the beneficial parental relationship exception, “the parents
must do more than demonstrate ‘frequent and loving contact’ [citation], an
emotional bond with the child, or that the parents and child find their visits
pleasant. [Citation.]” (In re Andrea R. (1999) 75
Cal.App.4th 1093, 1108.) Whether
the exception applies is determined “on a case-by-case basis, taking into
account the many variables which affect a parent/child bond. The 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 are
some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p.
576.)
Mother and
father contend that the juvenile court improperly relied on evidence of ongoing
domestic violence, and paternal grandmother’s assessment of what was best for
J.M. rather than exercising its own discretion.
Mother, father, and J.M. also contend that parents maintained regular
visitation, and that J.M. would benefit from a continuing relationship with his
parents.
While mother and father visited
J.M. frequently, father never progressed to unmonitored visits, and mother had
her unmonitored visits taken away due to the instability of her relationship
with father. Neither parent ever
attained overnight visitation. J.M. was
detained from father when one month old, and detained from mother less than two
weeks later. For most of his life, J.M.
has lived with paternal grandmother, whom he also refers to as “Mommy,” and who
has met all of his needs and acted as his primary caregiver. Even though parents often cared for J.M., much as an extended
family member would, they did not fulfill the role of parents in any meaningful
way. (In re Jasmine D., supra, 78 Cal.App.4th at p.
1350.) While it is obvious that J.M. has
a loving relationship with his parents, we cannot say that “the relationship
[with the parent] 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.” (In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
Although
the court remarked that “adoption is the best plan if that’s what the caretaker thinks the best
plan is,” it is clear the court was merely acknowledging the paternal
grandmother’s willingness to pursue adoption rather than legal
guardianship. And, even if paternal
grandmother’s opinion factored into the court’s reasoning, it did not supplant
the court’s exercise of discretion, but instead supported its conclusion that
the permanency of adoption was preferable to a continuing parental relationship
with mother and father. Paternal
grandmother could sensibly assess the benefit of J.M.’s relationship with
parents through her supervision of visitation and her special bond with
J.M. Also, the ongoing domestic violence
between parents was relevant to why they had not progressed further in their
visitation with J.M., which affected the strength of their bond with him. Accordingly, the juvenile court did
not err in finding that the beneficial parental relationship exception did not
apply. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re
Jasmine D., supra,
78 Cal.App.4th at p. 1350 [it is only in an extraordinary case that the
preservation of a parent’s rights will prevail over the preference for
adoption].)
DISPOSITION
The juvenile court order is affirmed.
REPORTS.
GRIMES,
J.
I CONCUR:
BIGELOW, P. J.
FLIER, J., Dissenting
Because I
conclude the juvenile court should have applied the beneficial parental
relationship exception to adoption, I respectfully dissent.
Although
adoption is the preferred permanent plan, Welfare and Institutions Code section
366.26, subdivision (c)(1)(B)(i) carves out an exception to adoption.
Autumn H. (1994) 27 Cal.App.4th 567, 573-574.) That exception applies when, as in this case,
(1) the parents maintained regular visitation with the child and (2) the child
would benefit from continuing his relationship with his parents. (In re
Mary G. (2007) 151 Cal.App.4th 184, 207.)
Courts have “interpreted the phrase ‘benefit from continuing the
relationship’ to refer to a ‘parent-child’ relationship 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. In other words, the court balances the
strength and quality of the natural parent[-]child relationship in a tenuous
placement against the security and the sense of belonging a new family would
confer. If severing the natural
parent[-]child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not
terminated.’” (Ibid., quoting In re Autumn
H., supra, at p. 575.)
In
this case, it is undisputed that mother and father both regularly visited and
took care of J.M. throughout the dependency period. Mother enjoyed unmonitored visits for a year
and a half, cared for J.M. when the paternal grandmother worked, and had
extended visits lasting up to eight hours.
Before she started working, mother visited every day. Although father’s visits were monitored, he
was consistent in his visits and visited at least three times a week, with some
of his visits lasting up to four hours.
Mother
and father both acted as parents, taking care of J.M. during their visits. Mother fed J.M. and changed his diapers. Mother was present when J.M. started walking
and when he started speaking. Father
played with J.M., changed his diapers, fed him, bathed him, and gave him
toys. The Los Angeles County Department
of Children and Family Services described mother’s and father’s visitation as
“consistent and committed.”
J.M.
had a strong, positive bond with both mother and father. J.M. referred to mother as mother; he was
excited to see her, and embraced her whenever she visited. When father visited, J.M. ran up to him,
embraced him and called him poppy. J.M.’s enthusiasm for mother’s and father’s
visits evidenced his bond to them. At
J.M.’s young age of 16 months he could not verbally describe his bond to mother
and father, but his conduct toward them during their visits demonstrated his
bond to them and his love for them. The
fact that J.M. also had a positive relationship with his paternal grandmother
does not negate the harm he would suffer from the loss of his relationship with
mother and father. (In re S.B. (2008) 164 Cal.App.4th 289, 300.) Here, mother and father demonstrated that
J.M. would derive more than an incidental benefit by maintaining contact with
them. (See In re C.F. (2011) 193 Cal.App.4th 549, 559.)
In
ruling that adoption was the best plan for J.M., the court ignored J.M.’s strong
attachment to mother and father and instead focused on paternal grandmother’s
wishes. The court stated: “I think adoption is the best plan if that’s
what the caretaker [(paternal grandmother)] thinks the best plan is.” Contrary to that statement, the best plan for
J.M. was the one required by section 366.26, subdivision (c)(1)(B)(i) –
maintaining mother’s and father’s parental rights because they regularly
visited and J.M. would benefit from continuing his relationship with them. I would reverse the juvenile court’s order
and remand for the juvenile court to consider legal guardianship as J.M.’s
permanent plan.
FLIER,
J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">
statutory citations are to the Welfare and Institutions Code.
