In re Justin P.

 

 

 

 

 

 

 

 

Filed 9/11/12  In re
Justin P. CA3

 

 

 

 

NOT
TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Glenn)

----

 

 

 
>

In re JUSTIN P. et al., Persons Coming Under the Juvenile Court Law.
GLENN COUNTY HUMAN RESOURCES AGENCY,             Plaintiff and Respondent,        v.   A.P.,             Defendant and Appellant.	C070522   (Super. Ct. Nos. 09JP00454/09JP00455)

 

 

 

     Aaron P. (father)
appeals from the juvenile court’s orders terminating his href="http://www.fearnotlaw.com/">parental rights to his young sons Justin
P. and Simon P. (minors).  (Welf. &
Inst. Code, §§ 366.26, 395.)href="#_ftn1"
name="_ftnref1" title="">[1]  Father contends the juvenile court abused its
discretion in denying his request for a bonding study and erred in finding the
beneficial relationship exception to termination of parental rights did not
apply.  We find no error and shall
affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

     >Preliminary Proceedings

     On October 7, 2009, href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Glenn County
Human Resources Agency (the Agency) filed section 300 petitions on behalf of
minors, who were then ages two months (Justin) and 17 months (Simon).  The petitions alleged that minors’ mother
(motherhref="#_ftn2" name="_ftnref2" title="">[2])
had mental health issues, mother and father were abusing drugs and had a
history of domestic violence, and minors’ home was in a dirty and unsafe
condition.  The juvenile court detained
minors, placing them with their maternal aunt and uncle.

     The juvenile court
held the jurisdiction hearing on November 5, 2009; both parents
submitted on the Agency’s report.  The
court struck the unsafe home allegations and sustained the remaining
allegations in the petitions.

     The court held the
disposition hearing on December 3,
2009.  Father had tested
positive for marijuana five times in the six weeks following minors’ detention
and was being treated at a methadone clinic for his addiction to Percocet.  He had obtained a “legal marijuana license”
but had not disclosed that fact to his substance abuse counselor, who was
concerned.  Neither he nor mother was
participating in reunification services
on a regular basis, although they were attending supervised visitation twice
per week.  Minors had made a “smooth
transition” to the home of the maternal aunt and uncle.  The juvenile court adjudged minors
dependents and ordered six months of reunification services for both
parents.

     Review Hearings and Placement with Father

     The court
scheduled the six-month review for June 17, 2010.  As the hearing approached, father was not
doing well in reunification.  He and
mother had been apart and reconciled several times and were now separated;
father lived with his grandmother. 
Father had been taking medications for sleep (Trazodone), depression
(Lexapro) and anxiety (Xanax), along with methadone and marijuana.  He was not attending services regularly and
struggled with his participation in services due to lethargy caused by his drug
use.  He was, however, visiting.  Minors were doing well in the home of their
maternal aunt and uncle.  They had
developed strong attachments to their maternal aunt and uncle, and sought them
out for comfort and reassurance.

     The court
continued the review hearing several times at the parents’ request; the
six-month review hearing was ultimately heard on October 7 and November 4,
2010, together with the

12-month review.  The
Agency had originally recommended termination of services for both parents, but
on October 29, 2010, filed an addendum suggesting an additional six months of
services for father due to his improved interactions with minors at visits and
his improved amenability to services after recently stopping his methadone
use.  The juvenile court terminated
services for mother but extended father an additional six months of
reunification services, setting the 18-month review hearing for March 17, 2011.

     On March 10, 2011,
the Agency filed a report indicating father was actively participating in
reunification services and overnight visits had gone well.  However, on March 15, 2011, the Agency filed
an addendum report expressing concern about father’s recent positive test for
synthetic cannabinoids, which father claimed helped him sleep.  Accordingly, although the Agency continued to
recommend placement with father, it expressed “serious caution” and suggested
more intensive services.  It then
requested the hearing be continued.

     Before the next
hearing date, on April 1, 2011, father was found unconscious and taken by
ambulance to the hospital.  He tested
positive for methadone upon admission. 
He was treated for (possibly narcotic induced) bilateral pneumonia and
released on April 11, 2011.  Father denied
taking methadone prior to his hospitalization, claiming his use of NyQuil had
produced a false positive test.  At the
18-month hearing held on May 19, 2011, the juvenile court adopted the Agency’s
cautious recommendation to place minors with father and order family
maintenance services.

     >Section 387 Petition

     Three months after
the court returned minors to him, on August 16, 2011, father was again
hospitalized, having overdosed on methadone in minors’ presence.  He told medical personnel that he “just
wanted to get high” and took 12 methadone tablets.  The Agency filed supplemental section 387
petitions, based on father’s recent hospitalizations for methadone use and
overdose, his May 13, 2011, arrest in Tehama County for being under the
influence of alcohol, and his refusal to disclose minors’ location.  The court issued protective custody warrants
and detained minors, again placing them with their maternal aunt and uncle.

     Father testified
at the September 15, 2011, jurisdiction and disposition hearing.  He claimed he had not used methadone for the
past year despite his positive tests. 
The juvenile court sustained the section 387 petitions, terminated
father’s services, and set the section 366.26 permanency planning hearing for
January 19, 2012.

     On January 19,
2012, father requested and received a continuance of the section 366.26 hearing
to February 16, 2012, in order to be heard on the beneficial relationship
exception to termination of his parental rights.  The court denied father’s subsequent request
for a bonding study and the matter proceeded to contested hearing on February
16, 2012.

     At the hearing,
the Agency presented evidence that minors were doing well in their prospective
adoptive home with their aunt and uncle, and were likely to be adopted.  They were very bonded to their caregivers and
had developed a sibling-like relationship with the caregivers’ young
daughter.  They were healthy and happy,
had formed a secure and loving relationship with their caregivers, and enjoyed
“appropriate reciprocal attachments.” 
The aunt and uncle had become minors’ psychological parents and there
was no indication that termination of parental rights would be detrimental to
minors.  Finding no exceptions to the
requirement that it terminate parental rights at this stage in the proceedings,
the juvenile court did so.

>DISCUSSION

I

>Bonding Study

     >A.   Background   

     On February 9,
2012, father filed a section 388 petition for the sole purpose of requesting
the juvenile court order a bonding study. 
The court denied the request, which would have required it to continue
the section 366.26 hearing, on the ground that the petition was untimely and
should have been brought prior to termination of reunification services.  Father contends the court’s denial was an
abuse of its discretion. 
We disagree.

     >B.   The
Law

     Bonding studies
can aid the court in determining the applicability of the beneficial
relationship exception to the termination of parental rights.  (See In re Tabatha G. (1996)
45 Cal.App.4th 1159, 1167.) 
However, the court is not required to order a bonding study as a
condition precedent to terminating parental rights.  (In re Lorenzo C. (1997)
54 Cal.App.4th 1330, 1339.)  “While
it is not beyond the juvenile court’s discretion to order a bonding study late
in the process under compelling
circumstances, the denial of a belated request for study is fully
consistent with the scheme of the dependency statutes, and with due
process.”  (In re Richard C.
(1998) 68 Cal.App.4th 1191, 1197, italics added.)

     Continuances in juvenile
court are expressly discouraged because the Legislature seeks to keep children
from remaining in dependency limbo any longer than necessary.  (In re Emily L. (1989)
212 Cal.App.3d 734, 743.)  They are
permitted only upon a showing of good cause. 
(§ 352, subd. (a).) 

     >C.   Analysis

     Here, father
provided no justification, let alone good cause, for the delay in requesting
the bonding study, which would have required another continuance of the
permanency planning hearing.  The
juvenile court terminated reunification services on September 15, 2011--five
months before the February 16, 2012, section 366.26 permanency planning
hearing.  On January 19, 2011, the
hearing was continued for a month at
father’s request in order for him to prepare his case for application of
the exception.  Nonetheless, father did
not request a bonding study until the week before the rescheduled permanency
planning hearing and provided absolutely no justification for the delay in
making the request.

     Father claims that
a relatively short continuance would not have prejudiced minors.  But prejudice is not the issue.  “Parents unable to reunify with their
children have already caused the children serious harm.”  (In re
K.M. (2009) 172 Cal.App.4th 115, 120.) 
Once reunification services were terminated, minors’ interest shifted to
securing a permanent home.  (See In
re Marilyn H. (1993) 5 Cal.4th 295, 309.)  As the permanency hearing approached, minors
had been in the dependency system for over two years--when the youngest was
only two months old.  They were entitled
to permanency without delay.  (In re
Marilyn H., supra, 5 Cal.4th at p. 310.)  The trial court clearly did not abuse its
discretion in denying father’s requests.

II

>Beneficial Relationship Exception

          Father next
contends the juvenile court erred by failing to apply the beneficial parental
relationship exception to adoption and thus avoid terminating his parental
rights.

     >A.   The
Law

     “‘At the selection
and implementation hearing held pursuant to section 366.26, a juvenile court
must make one of four possible alternative permanent plans for a minor child.
. . .  The permanent plan
preferred by the Legislature is adoption. 
[Citation.]’  [Citations.]  If the court finds the child is adoptable, it
must terminate parental rights absent circumstances under which it would
be detrimental to the child.”  (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) 

     There are only
limited circumstances permitting the court to find a “compelling reason for
determining that termination [of parental rights] would be detrimental to the
child.”  (§ 366.26, subd.
(c)(1)(B).)  One of these is where the
parent has maintained regular visitation and contact with the child >and the child would benefit from continuing the relationship, often
referred to as the beneficial parental relationship exception.  (§ 366.26, subd. (c)(1)(B)(i).)  The “benefit” to the child 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 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.”  (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).)  Even frequent and loving contact is not
sufficient to establish this benefit absent a significant, positive, emotional attachment between parent and
child.  (C.F., supra,
193 Cal.App.4th at p. 555; Autumn H., supra, 27 Cal.App.4th at p. 575.)

     “Because a section
366.26 hearing occurs only after the court has repeatedly found the parent
unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.”  (>In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350 (Jasmine
D.).)

     >B.   Burden
and Standard of Review

     The party claiming
the exception has the burden of establishing the existence of any circumstances
which constitute an exception to termination of parental rights.  (C.F.,
supra, 193 Cal.App.4th at p.
553.)

     As the parent must
establish the existence of the factual predicate of the exception--that is,
evidence of the claimed beneficial parental relationship--and the juvenile
court must then weigh the evidence
and determine whether it constitutes a compelling reason for determining
detriment, substantial evidence must support the factual predicate of the
exception, but the juvenile court exercises its discretion in weighing that
evidence and determining detriment.  (>In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314-1315.) 
“On review of the sufficiency of the evidence, 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.”  (Autumn H., supra, 27 Cal.App.4th
at p. 576.)  “‘[E]valuating the
factual basis for an exercise of discretion is similar to analyzing the
sufficiency of the evidence for the ruling. . . .  Broad deference must be shown to the trial
judge.’”  (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)href="#_ftn3" name="_ftnref3" title="">[3]

     C.   Analysis

     Here, there was
evidence that father had a good relationship with minors, especially
Simon.  The visits were appropriate, and
minors called father “daddy or dada.”href="#_ftn4" name="_ftnref4" title="">[4]  The juvenile court expressly acknowledged
that there was a bond between father and minors.  There was also no dispute that father visited
regularly--initially once a week but later reduced to twice, and then once, a
month.  But even “frequent and loving
contact” is insufficient to establish the “benefit from continuing the relationship”
(§ 366.26, former subd. (c)(1)(A), now subd. (c)(1)(B)(i)) contemplated by
the statute (In re Beatrice M. (1994) 29 Cal.App.4th 1411,
1418).  After it became apparent that
father would not reunify with minors, the juvenile court had to find an
“exceptional situation existed to forego adoption.”  (Autumn H., supra, 27 Cal.App.4th
at p. 576.)  The juvenile court
determined minors would not benefit from continuing their relationship with
father to such a degree that termination of parental rights would be
detrimental to them.  Father bore the burden
to demonstrate the statutory exception applied and failed to make the requisite
showing.  (See C.F., supra, 193
Cal.App.4th at p. 553.)  Therefore, the
court did not err in terminating parental rights.

     By the time of the
hearing, minors had spent 25 of the last 28 months of their very young lives
removed from father’s care and placed with their aunt and uncle.  Minors were happy and emotionally stable in
their placement, and were appropriately attached to their caregivers, with whom
they had developed  parent-child
relationships.  Thus, minors were able to
develop an attachment to caretakers other than father and were adjusting well
to placement out of his custody.  The
record is devoid of evidence that would permit, much less compel, a finding
that either child’s relationship with father was “sufficiently strong that the
child would suffer detriment from its termination” (Beatrice M., supra,
29 Cal.App.4th at p. 1418) or that it established a “compelling
reason for determining that termination would be detrimental to the child”
(§ 366.26, subd. (c)(1)(B), italics added).  Suggesting to the contrary, the social worker
reported that minors had recently adjusted to having their visitation with
father reduced from once a week to once a month without suffering any
detriment.  (See In re Jason L.
(1990) 222 Cal.App.3d 1206, 1214 [we resolve any conflicts in evidence in
favor of juvenile court’s order].)  As
observed by the social worker, “[c]ontinuing to live between two families has
the potential of disrupting the formation of healthy attachments for these
children in a very important development stage, which could have a detrimental
impact on them for the rest of their lives.”

     Considering all
the evidence, the juvenile court could properly conclude that any benefit of
minors’ continuing their relationship with father did not rise to the type of
substantial, positive, and emotional attachment that would cause minors great
harm if severed, and did not outweigh the benefits of a stable and permanent
home.

>DISPOSITION

     The orders of the
juvenile court are affirmed.

 

 

 

                                       DUARTE            , J.

 

 

 

We concur:

 

 

 

       BLEASE                 , Acting P. J.

 

 

 

       MAURO                  , J.