In re O.N.
Filed 12/9/13 In re O.N. CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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This opinion has not been certified for publication or ordered published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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In
re O.N., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.N.
et al.,
Defendants and Appellants.
E058319
(Super.Ct.No.
J238022)
OPINION
APPEAL from
the Superior Court of
Bernardino County.
Christopher B. Marshall, Judge.
Affirmed.
Donna P.
Chirco, under appointment by the Court of Appeal, for Defendant and Appellant
C.N.
William D. Caldwell,
under appointment by the Court of Appeal, for Defendant and Appellant J.O.
Jean-Rene
Basle, County Counsel, Kristina M. Robb, Deputy County
Counsel, for Plaintiff and Respondent.
J.O. (father) and C.N. (mother) appeal an
order terminating their parental rights
to their daughter, O.N. Both assert that
the court should have applied the beneficial parental relationship exception to
the statutory preference for adoption, and J.O. also asserts that he was denied
substantive due process because the
termination of his parental rights was based solely on C.N.’s mental illness
rather than on his own unfitness as a parent.
We will
affirm the judgment.
FACTUAL AND PROCEDURAL
HISTORY
O.N. was
detained at birth because mother, who has a history of schizophrenia and
bipolar disorder, had discontinued her medications during her pregnancy to
protect the health of the baby and did not appear capable of caring for an
infant. At the hospital, mother said
“numerous times†that the baby was crying and needed to be fed, even though the
baby was asleep, and would wake her up to feed her. In addition, mother’s moods were unstable and
she could not stay focused during conversation.
When a
social worker arrived at the hospital, she observed that mother was agitated
and that she conversed in a disjointed manner, talking over the social worker,
apparently making up grandiose stories about her life, and discussing topics
unrelated to the subject of the conversation.
Father was present, and indicated that he had concerns about mother’s
ability to care for the baby, based on her combativeness with him during the
pregnancy while she was not taking her medications and seeing and hearing things
that were not there. The social worker
contacted the maternal grandmother and the paternal grandfather, and both
expressed concern about mother’s ability to care for the baby and about
father’s ability to control mother if she became aggressive.
The
Department of Children and Family Services (CFS) reported that mother had lost
custody of her first child, S.N., who had been removed from mother at birth in
2009, and had ultimately been adopted by the maternal grandmother.
A petition
pursuant to Welfare and Institutions Code section 300
subdivision (b) (failure to protect) as to both parents and subdivision (j)
(abuse of sibling) as to mother.
Specifically, the petition alleged that mother suffered from mental
health issues that impaired her ability to care for and supervise O.N., that
she suffered from a substance abuse problem, and that she had engaged in
incidents of domestic violence with
father. As to father, the petition
alleged that he was unable to protect O.N. from mother’s unpredictable and
sometimes violent behavior, and that he had a history of battery against
mother. The petition also alleged that
O.N.’s half sibling, S.N., had been removed from mother due to mother’s
inability to care for and supervise her appropriately, and that O.N. was at risk
of similar neglect. S.N. had been
removed because of mother’s mental illness and substance abuse.
On March
21, 2011, the juvenile court ordered O.N. detained outside the parents’ home.
The
jurisdiction/disposition report dated April 11, 2011, recommended services for
both parents. The report stated that
mother had recently been assessed by her psychiatrist, Dr. Nakai. Dr. Nakai diagnosed her with schizoaffective
disorder, bipolar type. He stated that
she suffered from poor concentration, flight of ideas, delusional thought
content and extreme paranoia. He stated
that mother’s severe depression, irritability, anxiety, insomnia, obsessions
and paranoia prevented her from functioning at home.
The report
stated that father had been convicted of battery on February 17, 2011, and was
on probation until February 16, 2014.
The police report attached to the jurisdiction/disposition report stated
that father had tackled mother at a neighbor’s apartment and had attempted to
drag her out of the apartment by her feet.
Father was extremely intoxicated and refused to provide a statement. The report also stated that when O.N. was
removed from her parents, mother was verbally aggressive toward father and
threatened to end their relationship.
Father’s family members stated that they were afraid of mother’s
unpredictable and hostile behavior.
Mother
reported that she had seizures as a baby and that she had taken medication for
attention deficit disorder (ADD) since she was two years old. She reported that she had suffered a head
injury in car accident when she was seven years old. She had taken medication for schizophrenia
for many years. She reported that the
medications she had been taking since O.N.’s birth were gradually improving her
mood and behavior.
Father had
used illegal drugs when he was
younger. He had received treatment and
had stopped using drugs when he was 20 years old. He and mother had been in a relationship for
about two years before O.N. was born. They
lived together and father was present at O.N.’s birth and was named as the
father on O.N.’s birth certificate. Father’s
family was willing to provide support for the parents’ reunification with
O.N. O.N. was placed in the care of the
paternal grandfather, who lived with the paternal great-grandparents and a
paternal great-aunt. All of these
relatives provided care for O.N. The
parents called daily to receive updates about O.N. and were having visits at
the relatives’ home.
The report
described the first visit between O.N. and her parents at the CFS office. Mother became angry and began to yell when a
social worker attempted to assist in changing the baby’s diaper. She accused the male social worker of trying
to look down the baby’s pants. She was
verbally aggressive toward father and yelled at the security guard as she left
the office. After the first visit,
however, mother became less aggressive and reported feeling much happier. The parents generally did well during visits,
although mother would frequently stare off into space. After March 29, 2011, CFS authorized visits at
the caregiver’s home twice a week. The
paternal grandfather was to supervise the visits.
The
addendum report prepared for the jurisidiction/disposition hearing stated that
father had been arrested on April 14, 2011, on a warrant concerning a 2008
battery. He was expected to be released
on November 5, 2011.
name="_ftnref2" title="">[2]
CFS recommended reunification services for father. CFS did not recommend reunification services
for mother, based on her severe mental disability and because her parental
rights to O.N.’s half sister had been terminated. Two psychological evaluations obtained during
the dependency proceedings concerning O.N.’s half sister indicated that because
of mother’s complex mental problems, it would not be safe for mother to care
for an infant.
Mother’s continuing mental problems were
underscored by the report from the paternal relatives that they were caring for
her during father’s incarceration, visiting her every morning to check on
her. On April 17, 2011, she accused
family members of trying to kidnap O.N., leading the family to believe that she
had not taken her medication the night before.
In addition, in the second addendum report prepared for the
jurisdiction/disposition hearing, CFS reported an incident on June 7, 2011,
when father came to the caregiver’s home to pick up his car. The paternal grandfather asked mother to stay
outside, but instead she went into the house and picked up O.N. and began to
change her diaper. She “body-slammedâ€
the paternal great-aunt when she asked mother to put the baby down. Mother then grabbed the baby by one arm and
ran out of the house. After that
incident, the paternal relatives asked that visits take place at the CFS
office.
The family was also concerned because
O.N. would cry when mother held her, and because mother would become angry when
asked to hold O.N. correctly or asked not to smoke in O.N.’s presence. They also reported that during a visit at the
CFS office on June 9, 2011, mother accused the paternal grandfather of putting
his hand on O.N.’s crotch and said that the paternal grandfather had raped
mother six times. The security guard
reported that when mother arrived for the visit, she accused him of fondling
her at Walmart.
At the contested jurisdiction/disposition
hearing, testimony was received concerning the body-slamming incident. Father admitted that he was unable to control
mother and could not keep her from entering the house. The court found the allegations of the
petition true, and found by clear and convincing evidence that removing O.N.
from her parents’ physical custody was necessary to protect her from
substantial danger to her physical or emotional well-being. The court ordered continued reunification
services to father and none for mother.
The court declared father O.N.’s presumed father. Father was given monitored visitation once a
week. Visitation between mother and O.N.
was suspended because the court determined that it was detrimental to O.N.
Mother filed a petition for modification,
seeking reinstatement of visitation. The
petition was granted on November 8, 2011.
During the months following the jurisdiction/disposition
hearing, mother and father visited O.N. frequently. Father took a parenting class and a 52-week domestic
violence class and participated in individual counseling. He and mother voluntarily engaged in couples
counseling and mother voluntarily took a parenting class. Both parents completed the parenting class. Father later completed the domestic violence
class. Visitation generally went well,
and both parents were affectionate and caring toward O.N., although mother would
occasionally leave O.N. alone and “just walk away.†However, by the time of the 18-month review
hearing, mother’s on-going mental health issues caused continued concern about
her ability to provide adequate care and supervision. Although CFS believed that reunification with
father remained a possibility, it could not recommend returning O.N. to
father’s care as long as he remained with mother because, as father admitted,
he could not supervise mother at all times, and mother remained a risk to
O.N.’s safety. Despite being warned that
mother’s mental health made reunification with father unlikely as long as he
remained with mother, the couple married during the 18-month reporting period.
At the 18-month review hearing, father
admitted that he could not safely leave O.N. alone in the house with mother,
although he did think it was safe to leave her alone in a room with mother, if
he was in the house. He also testified
that if he were ordered to live separately from mother, he did not know how he
could keep her from coming over. When
asked if he could choose between O.N. and mother, father was unable to answer
the question.
The court concluded that the evidence
showed that there would be a substantial risk to O.N. if she were returned to
father, because she could not safely be left with mother unless mother had
constant supervision. The court found
that O.N. could not safely be returned to father based on mother’s mental
illness. The court found that placing
O.N. in father’s custody continued to be detrimental to O.N. It terminated father’s services and set a
section 366.26 hearing. The court
ordered continued visitation for both parents. The court informed the parents of their right
to obtain review of the order by writ petition.
On December 14, 2012, the court authorized
placement of O.N. with her paternal great-aunt and uncle, who were interested
in adopting O.N., after concerns had been raised about the appropriateness of
her prior placement with the paternal grandfather. O.N. moved to the home of her great-aunt and
uncle on January 9, 2013.
Shortly before the section 366.26
hearing, both parents filed petitions for modification pursuant to section
388. Mother’s petition was summarily
denied, as it stated no new evidence or changed circumstances. Father’s petition was set for a hearing
concurrent with the section 366.26 hearing.
At the section 366.26 hearing, a social
worker testified that during the visits she had supervised, both parents had
good interactions with O.N., but father guided mother on caring for her. She observed that O.N. would smile upon seeing
her parents and would go to them, but mostly to father. She testified that mother’s psychiatrist had
told her that mother was taking her medication but would not give an opinion as
to mother’s ability to care for her daughter.
She testified that the parents told her they had seen the psychiatrist’s
associate to obtain an assessment of mother’s interactions with O.N., but that
they had not produced a report of the findings.
The social worker believed that father could parent O.N. on his own,
with assistance. She believed that he
needed to have someone watching him to make sure he dealt with O.N. appropriately
and safely.
The social worker testified that she was
concerned about “what happens†if O.N. were returned to both parents and
mother failed to take her medication and was acting as O.N.’s sole supervisor
at that time. She testified that she had
told father before the marriage that return of O.N. to his care alone was a
possibility. However, father replied
that he loved mother and did not want to be without her. The social worker believed this demonstrated
that reunifying with O.N. was not father’s first priority and showed that he
was not willing to protect her. She
recommended terminating parental rights because O.N. would be at risk if mother
failed to take her medication or if her medication stopped working.
Father testified that he visited O.N.
three or four times a week when he was not working. O.N. called him “dada†and called mother
“mama.†He testified that he believed
that mother was capable of caring for O.N. on her own, but that if he was
ordered not to leave her alone with mother, he would see to it that O.N. went
to day care or stayed with a relative while he was at work. He did not believe O.N. would be at risk if
mother were the sole caregiver while he was briefly unavailable, such as while
taking a shower. Father testified that
he had completed his case plan in February 2012.
The court found that there was no
evidence that father could independently care for O.N. and no expert evidence
that mother’s behavior would not put O.N. at risk. The court also found that there was no
evidence that either parent occupied a parental role for O.N. Rather, he saw only evidence of loving
contact. The court found that the burden
of proof as to the beneficial parental relationship exception was not met. The court denied father’s section 388
petition, terminated parental rights and selected adoption as the permanent plan.
Both parents filed timely notices of
appeal.
DISCUSSION
1.
FATHER WAS NOT DENIED
SUBSTANTIVE DUE PROCESS
Father
contends that he was denied substantive due
process because his parental rights were terminated based not on his
unfitness as a parent but solely because mother’s mental illness was found to
render her a risk to O.N.’s well-being. This
is simply not the case. At the
jurisdiction/disposition hearing, the court found true the allegation that
father was unable to protect O.N. from mother’s unpredictable and sometimes
violent behavior, and it found, by clear and convincing evidence, that there
was no reasonable means of protecting O.N. without removing her from the
custody of both parents. The evidence,
recited above, supports the continued findings that mother could not safely and
adequately care for O.N. on her own and that father could not adequately care
for and supervise both O.N. and mother.
Father relies on In re T.G. (2013) 215 Cal.App.4th 1, in which the court found that a
father was denied due process because his parental rights were terminated
without any finding of unfitness having been made as to him. In re
T.G. is inapposite, however, because in that case, there was no finding by
child’s safety and well-being required removal from the father’s custody. (Id. at
pp. 14-23.) Here, in contrast, such
findings were made by the requisite clear and convincing evidence. Accordingly, father was afforded due
process. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256.)
Father also contends that the detriment
findings as to him were deficient. However,
because detriment findings were made—in contrast to the situation in
perceived deficiencies in those findings in a direct appeal from the
disposition order or the subsequent periodic review orders (§ 395), or to file
a writ petition from the order terminating services and setting the matter for
a section 366.26 hearing. Because he did
not do so,
title="">[3] his contentions as to the factual or legal insufficiency
of those orders are not cognizable in this appeal. (§ 366.26, subd. (l)(1), (l)(2); Cal. Rules
of Court, rule 5.695(h).)
2.
NEITHER PARENT MET THE BURDEN
OF PROOF WITH RESPECT TO THE BENEFICIAL PARENT-CHILD EXCEPTION
Both parents contend that the juvenile
court should have found that the beneficial parental relationship exception to
the statutory preference for adoption applied and that the order terminating
their parental rights must be reversed.
“Adoption must be selected as the
permanent plan for an adoptable child and parental rights terminated unless the
court finds ‘a compelling reason for determining that termination would be
detrimental to the child due to one or more of the following
circumstances: [¶] (i) The
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).)†(
1308, 1314 (Bailey J.).) Under these provisions, “the court must order
adoption and its necessary consequence, termination of parental rights, unless
one of the specified circumstances provides a compelling reason for finding that termination of parental rights
would be detrimental to the child. The
specified statutory circumstances . . . ‘must be considered in view
of the legislative preference for adoption when reunification efforts have failed.’†(In re
Celine R. (2003) 31 Cal.4th 45, 53, italics added (
because it gives the child the best chance at [a full] emotional commitment
from a responsible caretaker.’†(
The parent
has the burden of establishing by a preponderance of the evidence that a
statutory exception to adoption applies.
(Bailey J.,
p. 1314.) The parent must show both
that a beneficial parental relationship exists and that severing that relationship would result in great harm to
the child. (Id. at pp. 1314-1315.) A
juvenile court’s finding that the beneficial parental relationship exception
does not apply is reviewed in part under the substantial evidence standard and
in part for abuse of discretion: The
factual finding, i.e., whether a beneficial parental relationship exists, is
reviewed for substantial evidence, while the court’s determination that the
relationship does or does not constitute a “compelling reason†(
parental rights would be detrimental is reviewed for abuse of discretion. (Bailey
J., at pp. 1314-1315.)
Both
parents argue that substantial evidence supports the conclusion that a
beneficial parental relationship existed.
However, since it is the parent who bears the burden of producing
evidence of the existence of a beneficial parental relationship, it is not
enough that the evidence supported such a finding; the question on appeal is whether
the evidence compels such a finding as a matter of law. (In re
I.W. (2009) 180 Cal.App.4th 1517, 1528.)
As the court in In re I.W. discussed,
the substantial evidence rule is typically implicated when a defendant contends
that the plaintiff succeeded at trial in spite of insufficient evidence. When, however, the trier of fact has
expressly or implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, “it is misleading to characterize
the failure-of-proof issue as whether substantial evidence supports the
judgment. This follows because such a
characterization is conceptually one that allows an attack on (1) the evidence
supporting the party who had no burden of proof, and (2) the trier of fact’s
unassailable conclusion that the party with the burden did not prove one or
more elements of the case [citations]. [¶]
Thus, where the issue on appeal turns on
a failure of proof at trial, the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes whether
the [parent’s] evidence was (1) uncontradicted and unimpeached and (2) of such
character and weight as to leave no room for a judicial determination that it
was insufficient to support a finding [in the parent’s favor]. [Citation.]â€
(Ibid., internal quotations
marks omitted.) Accordingly, unless the
undisputed facts established the existence of a beneficial relationship as a
matter of law, a substantial evidence challenge to this component of the
juvenile court’s determination cannot succeed.
(Bailey J.,
p. 1314.)
Here, there
is evidence which arguably would have supported a finding that a beneficial
parental relationship existed between O.N. and her parents. The evidence showed that both acted in a
parental manner while visiting O.N., that O.N. called them “mama†and “dada,â€
and that she shared a bond with both parents.
And, we agree with mother that the existence of a beneficial parental
relationship does not depend on the child having a primary attachment to the parent
or on the parent being the child’s primary caretaker. Rather, the exception may apply if the child
has a “substantial, positive emotional attachment†to the parent. (In re Autumn
H. (1994) 27 Cal.App.4th 567, 575.) However,
even if the juvenile court could have
found that O.N. shared a beneficial relationship with her parents, that does
not mean that the evidence compelled such a finding. It did not.
In any event, even if we assume, for the
sake of argument, that the evidence does compel the conclusion that a beneficial
parental relationship existed, the ultimate question we must decide is whether
the juvenile court abused its discretion by failing to find that termination of
parental rights would be so detrimental to O.N. as to overcome the strong
legislative preference for adoption. That
decision is entrusted to the sound discretion of the juvenile court. (Bailey
J., supra, 189 Cal.App.4th at
pp. 1314-1315.) We cannot find an
abuse of discretion unless the juvenile court exceeded the bounds of
reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “‘“When two or more inferences can reasonably
be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.â€â€™â€
(Id. at p. 319.)
Here, O.N. was removed from her parents’
custody as a newborn and she never lived with them. She was only a year and a half old when
parental rights were terminated, and she had never spent even a single night in
the parents’ home. Even though she
called them “mama†and “dada,†it is not clear that she actually understood
that they were her parents or viewed them as parental figures. There was no evidence whatsoever that O.N.
would suffer great detriment if parental rights were terminated. Consequently, we cannot say it was an abuse
of discretion to fail to conclude that the exception did not apply.
Both parents liken this case to
termination order, holding that, contrary to the juvenile court’s ruling, the
only reasonable inference from the evidence was that the beneficial parental
relationship exception applied. In
reaching that decision, the court noted that the father
maintained regular, consistent and appropriate visitation with the
child; he was the child’s primary caretaker for three years; when she was
removed from his custody he immediately acknowledged his drug use was untenable,
started services, maintained his sobriety, sought medical and
complied with every aspect of his case plan; and after a year apart the child
continued to display a strong attachment to her father. (Id. at
p. 298.)
The court stated: “The record
shows S.B. loved her father, wanted their relationship to continue and derived some
measure of benefit from his visits. Based
on this record, the only reasonable inference is that S.B. would be greatly
harmed by the loss of her significant, positive relationship with [her
father].†(Id. at pp. 300-301, italics added.) However, the same court
which decided In re S.B. later warned
that it was an extraordinary case and must be viewed in light of its particular
facts. The court emphasized that the
opinion “does not, of course, stand for the proposition that a termination
order is subject to reversal whenever there is ‘some measure of benefit’ in
continued contact between parent and child.â€
(In re Jason J. (2009) 175
Cal.App.4th 922, 937; see also In re C.F.
(2011) 193 Cal.App.4th 549, 557-559.)
Rather, there must be evidence that the relationship “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†and that severance
of the relationship “would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed.†(In re
Autumn H., supra, 27 Cal.App.4th at
p. 575.) Here, there simply is no such
evidence.
Mother also cites In re Brandon C. (1999) 71 Cal.App.4th 1530. Brandon
C., however, is a social services agency’s appeal from an order for
guardianship rather than adoption based on the beneficial parental relationship
exception. (Id. at p. 1533.) In that case, the court held that substantial
evidence supported the juvenile court’s decision to find the exception
applicable. (Id. at pp. 1534-1538.) The question
before us, however, is whether the juvenile court abused its discretion by
finding the exception not
applicable. Brandon C. does not provide any guidance on that issue.
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
further statutory citations refer to the Welfare and Institutions Code.
was present at the jurisdiction/disposition hearing on June 14, 2011. It is not clear when he was released from
custody.
