In re P.H.
Filed 8/16/12 In re P.H. CA2/4
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FOUR
In
re P.H., a Person Coming Under the Juvenile Court Law.
B235961
(Los Angeles County
Super. Ct. No. CK76402)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHAEL
R. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of
County, David R. Fields, Judge. Affirmed.
Law Office of Lisa A. Raneri and Lisa A. Raneri, under
appointment by the Court of Appeal, for Defendant and Appellant Michael R.
Matthew I. Thue, under appointment by the Court of
Appeal, for Defendant and Appellant F.H.
Office of the County Counsel, John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
_______________
Michael R. (Father) and F.H. (Mother) appeal the juvenile
court order terminating their parental rights to their son P., pursuant to Welfare
and Institutions Code section 366.26.
the August 31, 2011
continued section 366.26 hearing where his parental
rights were terminated. Mother
claims there was insufficient evidence to support the juvenile court’s finding
that P. was adoptable and that the juvenile court erred in its refusal to apply
the section 366.26, subdivision (c)(1)(B)(i) parental benefit exception.
On February
13, 2009, the Department
of Children and Family Services (DCFS) received a referral from the
hospital where four-month-old P. was being treated for suspected nonaccidental
trauma. P. suffered from a subdural
hematoma, five fractured ribs, and a fractured tibia. Mother’s and Father’s explanations of the
manner in which P. sustained these injuries were inconsistent with the nature
of the child’s injuries. From February
20 through February 24, a DCFS children’s social worker (CSW) observed P. and
conducted separate interviews with the treating physician, Mother, and Father,
to determine whether parents demonstrated an imminent and credible threat to
P.’s safety and well-being. Mother,
after initially declaring that she had no idea how P. was injured, revealed to
the CSW that P. had fallen off a bed approximately two months earlier. Father professed to have no knowledge as to
how his son was injured. He thought it
was possible that P. was hurt by Mother, who sometimes swaddled P. too
tightly. DCFS was troubled by Mother’s
changing stories and the lack of an explanation that was consistent with the
child’s injuries. Based on the parents’
statements, the severity of P.’s injuries, and P.’s vulnerability due to his
age, the CSW found that the child’s injuries were consistent with nonaccidental
trauma and recommended that he be detained from the parents and placed in the
protective custody of DCFS.
On February
26, 2009, DCFS filed a juvenile dependency petition as
to P. pursuant to section 300 subdivisions (a), (b), and (e). It also filed a “Last Minute Information for
the Court” report which contained Mother’s confession that on January 8, 2009, she
shook P. “very hard” because he would not stop crying. Mother also admitted to dropping the
child. She claimed that the incident on
January 8 was the only time she had intentionally mistreated P. and that
she had learned her lesson. At the
detention hearing the court found a prima facie case for detaining P. and
ordered family reunification services for the parents.
On March 17, 2009,
Mother told another CSW that in early December she shook P. because he would
not stop crying. According to Mother,
“He cried for a while after I shook him and then fell asleep on his own. I didn’t tell [Father]. I never noticed anything wrong with the
baby.” Father informed the same CSW that
he “had no clue” P. had been injured.
At the May 27, 2009
jurisdictional and dispositional hearing, the court declared P. to be a
dependent of the court under section 300, subdivisions (a), (b), and (e). The section 300, subdivision (e) finding was
sustained only as to Mother. The court
ordered both parents to participate in a DCFS-approved program of parenting
education and to undergo individual counseling with a licensed therapist to
address all case issues. In addition,
Mother was ordered to receive anger management counseling. The court granted the parents monitored
visitation and allowed DCFS to liberalize visitation.
In the
report prepared for the August
17, 2009 six-month review hearing, DCFS reported that
the parents were visiting P. consistently and the visits were going well. In the DCFS report prepared for the November 24, 2009
hearing, the CSW indicated that the parents had yet to comply with the court
order to enroll in individual counseling.
The report included a July
15, 2009 medical report from P.’s physician diagnosing
him with reactive airway disease (asthma), eczema, and macrocephaly (a large
head). Despite these diagnoses, P. was
reported to be healthy and developing age appropriately.
In the
interim review report prepared on April
29, 2010, DCFS reported that the parents had finally
begun to participate in individual counseling.
The parents continued to regularly visit with P. Most of the visits went well, but the CSW
reported that during a visit on March 29, Mother and Father were arguing during
the entire visit. Mother repeatedly
stormed out of the room, then returned violently swinging the door each
time. Neither parent was paying
attention to P., and when Mother almost hit him with the door, the CSW was
forced to end the visit. Mother stayed
to talk with the CSW afterwards and confessed that, “the argument that CSW witnessed
was nothing and that it happens almost everyday and is worse.” The CSW recommended that parents’ visits
continue to be monitored because of the threat to P.’s safety should the visits
with his parents be unmonitored. The
court allowed DCFS to liberalize the monitored visits at its discretion and set
a 12-month review hearing, pursuant to section 366.21, subdivision (f), for July 29, 2010.
The July 29, 2010
section 366.21, subdivision (f) hearing was continued to August 13 for a
were only in partial compliance with the case plan because they had yet to
complete individual counseling. A review
hearing pursuant to section 366.22 was scheduled for September 24, 2010.
In its September 24, 2010 status
review report, DCFS reported two troubling incidents that indicated the parents
were having issues with anger management.
On September 6, Father called P.’s foster mother’s home and asked the
foster mother’s daughter if he could come over and pick up P. The daughter said no because her mother was
not home, at which point Father began yelling and cursing at the daughter and
then hung up the phone. This incident
upset the foster mother, and she threatened to have P. removed from her
home. Eventually she reconsidered, but
reiterated that she and her family would not tolerate any more disrespect from
Mother or Father.
On
September 16, the CSW received a tearful message from Mother asking for referrals
to women’s shelters because she needed to move out of the apartment she shared
with Father. She told the CSW to call
back immediately because it was “really an emergency.” When the CSW was unable to reach Mother by
telephone, she went to the foster home where a visit was scheduled. She waited for the parents. When they arrived, she spoke to Mother, who
said that she, Father, and Father’s adult son had gotten into an argument the
previous night. Mother claimed the
situation was resolved. The CSW asked
Mother how often she and Father fought.
Mother acknowledged that they argued often; however, she denied their
disputes ever got physical. Mother said
she wanted to move out of the home.
In its September 24, 2010
evaluation, DCFS reported that the parents “have not asked or kept track of
[P.’s] progress in therapy, his doctor’s appointments or progress in the foster
home. It appears that even after
completing parenting education classes they have not been able to grasp the
dedication, commitment and responsibility [necessary] to raise a child of
[P.’s] age.” Thus, due to the parents’
lack of progress during the 18-month reunification period, their partial
compliance with court orders, their missed visits, their unstable and
unpredictable relationship, and their frequent frustrations with P., DCFS
recommended terminating family reunification services and urged the court to
set a selection of a permanent plan hearing pursuant to section 366.26.
Following
DCFS’s recommendation, at the October
26, 2010 continued section 366.22 hearing, the court
terminated family reunification services, set a section 366.26 hearing for February 22, 2011, and a
review of permanent plan hearing for April
26, 2011. During
the hearing, Father interrupted the proceedings twice, accused DCFS and the
court of being the cause of his losing custody of P., and stormed out of the
courtroom.
In its February 22, 2011
section 366.26 report, DCFS reported that P. continued to develop age
appropriately and that he had monitored visits with Mother and Father twice a
week. The visits reportedly went well,
but the parents failed to attend all the scheduled visits. The report identified P.’s paternal aunt as a
potential adoptive parent for P. DCFS
requested a home study to assess the aunt’s viability as an adoptive
parent. P.’s foster mother stated that
she was willing and able to continue to care for P. until his adoption.
The
parents were not present at the February
22, 2011 section 366.26 hearing. The court found that notice of the proceedings
had been properly given to both parents.
The court ordered a home study for the aunt and continued the section
366.26 hearing to May
24, 2011.
At the April 26, 2011 review
of permanent plan hearing, the court ruled that DCFS had taken the necessary
steps to make and finalize P.’s permanent plan of adoption.
Mother
and Father were present at the May
24, 2011 continued section 366.26 hearing. The court found that notice of the
proceedings had been given to all parties as required by law. The court ordered DCFS to submit a
supplemental report, including updates regarding P.’s placement and the status
of the home study of the aunt. The
section 366.26 hearing was continued to July 25,
2011.
The
DCFS supplemental report submitted on July
25, 2011, noted that the State of New
Jersey, where the aunt lived, would
not conduct an adoption home study until parental rights were terminated. Nevertheless, DCFS concluded that adoption by
the aunt should be the permanent plan for P. based on telephone conversations
between the CSW and the aunt confirming her commitment to providing a permanent
home for P. through adoption. Concluding
that P. was likely to be adopted by the aunt, DCFS recommended that Mother’s
and Father’s parental rights be terminated.
Mother
and Father were not present at the July
25, 2011 continued section 366.26 hearing. Both parents’ attorneys were present, and the
court found notice of the proceedings had been given to all parties as required
by law. At the request of both parents’
attorneys, the court set the matter for a contested hearing for August 31, 2011. The court ordered Mother and Father to appear
on August 31, 2011.
In its August 29, 2011
interim review report, DCFS reported that P. was continuing to grow and develop
age appropriately. DCFS also reported
that the aunt continued to be interested in adopting P., but the CSW had yet to
receive any updated information regarding the status of the home study because
parental rights had not been terminated.
The CSW submitted information regarding the aunt’s marital status,
living situation, and contact information.
Mother
and Father were not present at the August
31, 2011 continued section 366.26 hearing. Mother’s counsel asked the court to apply the
section 366.26, subdivision (c)(1)(B)(i) parental benefit exception to avoid
terminating her parental rights.
Mother’s counsel noted that because Mother was not present at the
proceedings, Mother could not attempt to persuade the court to apply the
section 366.26, subdivision (c)(1)(B)(i) exception through testimony. Mother’s counsel closed by informing the
court that Mother would object to the termination of her parental rights. Father’s counsel informed the court, “my
client has been pushing me hard for this relative placement. He wants the placement with his sister. He is aware of the nature of this
hearing. He was properly
noticed. . . . I don’t believe
that my client falls under any of the exceptions. So we’re submitting.”
Based
on Mother’s and Father’s counsel’s statements that their clients had been
properly noticed, the court found notice to be properly given as required by
law.
considering counsel’s arguments, the court ruled that the section 366.26,
subdivision (c)(1)(B)(i) exception was not applicable to Mother because the
parental bond was outweighed by the benefit P. would receive from the
permanence that could be provided by adoption.
The court found by clear and convincing evidence that P. was adoptable
and that return to his parents would be detrimental to him. The court terminated Mother’s and Father’s
parental rights and set a review of permanent plan hearing for October 25,
2011, at which time DCFS was to update the court on the home study and the
status of adoption planning.
Mother
and Father filed separate timely appeals.
I. Father’s Appeal
Father contends his due
process rights were violated when he did not receive notice of the August 31, 2011
continued section 366.26 hearing. Father
argues that lack of notice for a continued hearing is structural constitutional
error and requires a reversal of the
juvenile court’s decision to terminate his parental rights.
The
court concluded Father received notice of the August 31 hearing based on his
attorney’s statement that Father was properly noticed. Counsel now contends she was mistaken when
she so advised the court. Although
nothing in the record indicates that DCFS gave Father notice of the August 31
hearing, his counsel’s statement could be interpreted to mean that Father
received actual notice. We need not
determine whether counsel’s representation to the court bars Father from
claiming lack of notice. We will assume
he did not receive notice of the continued section 366.26 hearing and address
the issue of prejudice.
Generally,
in dependency matters, a reviewing court will set aside an order if it finds
there is a reasonable probability that the outcome would have been different
but for the error. (See
60.) Father urges the lack of notice
violated his right to procedural due process and reversal is mandated. We disagree.
We find
the harmless trial error analysis used by the court in In re Angela C. (2002) 99 Cal.App.4th 389 (Angela C.) instructive.
There, the court found the appellant’s lack of notice of a continued
section 366.26 hearing to be in the nature of a trial error, not structural
error. (Id. at p. 395 [“To the extent structural error implicates the
fundamental fairness of judicial proceedings, we reason the error in this case
is not structural”], citing Arizona v.
Fulminante (1991) 499 U.S. 279, 310.)
The court found the lack of notice to be trial error because appellant had
received proper “notice of these dependency proceedings from the outset, as
well as the opportunity to be heard.” (
notice of the originally scheduled section 366.26 hearing date, and, “given
[her] prior participation in the proceedings, as well as her election not to
attend the originally scheduled termination hearing, we can quantitatively
assess the error in the context of other evidence presented in order to
determine whether the error was harmless beyond a reasonable doubt.” (Ibid.)
Accordingly, the
court reviewed the record to determine if there was a chance that the
appellant, had she been present at the hearing, would have been able to offer
proof that the section 366.26, subdivision (c)(1)(B)(i) parental benefit
exception should have applied. (
396.)
The court determined that although appellant loved her child, her prior
conduct demonstrated that she could not establish that terminating parental
rights would be detrimental to her child’s best interests. (Ibid.) As the child had been deemed adoptable, the
appellant had failed to establish that an exception to adoption applied. As a result, the panel concluded that the lack of notice
was harmless beyond a reasonable doubt and affirmed the juvenile court’s order
to terminate parental rights. (
The analysis in
had notice of these dependency proceedings from the outset and the opportunity
to be heard. He received notice of the
originally scheduled section 366.26 hearing and was present at one of the
hearings conducted prior to the final August 31 proceeding. The lack of notice of the continued hearing
did not affect the fundamental fairness of the hearing, as he was represented
by counsel. Significantly, unlike the
appellant in Angela C., the
juvenile court was informed of Father’s position. Counsel stated clearly that Father “was
pushing [her] hard for this relative placement.
He wants the placement with [the aunt].”
Counsel also conceded that no exception to adoption applied.
examination of the evidence presented, the lack of notice was harmless beyond a
reasonable doubt.
Based on the information contained in the DCFS reports,
the juvenile court found clear and convincing evidence that P. was
adoptable. A finding of
adoptability requires the juvenile court to terminate parental rights and order
the child placed for adoption unless the parent establishes that termination of
parental rights would be detrimental to the child’s best interests. Thus, we examine whether Father presented any
evidence that the section 366.26, subdivision (c)(1)(B)(i) parental benefit
exception applies.
Ignoring his
attorney’s statement of his position at the hearing, Father claims that given
the positive reports regarding his visits with P., “it is reasonably probable
[his] testimony could have tipped the balance in favor of a finding the benefit
exception to parental rights applied.”
We find Father’s contention that his testimony at the August 31, 2011 hearing could have “tipped the balance”
wholly unconvincing. Father cites only
DCFS reports that mention his positive visits with P. as evidence that the
parental benefit exception should apply.
Father’s offered evidence is insufficient. It is well established that to meet the burden of proving the section 366.26,
subdivision (c)(1)(B)(i) exception applies, the
parent must show more than frequent and loving contact, an emotional bond with
the child, or pleasant visits—the parent must show that he or she occupies a
parental role in the life of the child. (In
re Derek W. (1999) 73 Cal.App.4th 823, 827.)
Nothing in Father’s
offer of proof or the record suggests that he occupied a parental role in P.’s
life or that P. would benefit from continuing his relationship with him. According to Mother, Father was verbally
abusive. The record corroborates her accusation. Father’s temper was displayed on several
occasions. Father yelled at a CSW,
argued with Mother during monitored visits with P., cursed at foster mother’s
daughter when he tried to schedule a visit, and disrupted the section 366.22
review hearing twice by accusing DCFS and the court of being the cause of his
losing custody of P. and storming out of the courtroom. We can only conclude that Father has severe
anger issues considering his inability to control his temper in a court of
law. Two things are clear. Father’s temper poses a barrier to his
ability to provide a safe and peaceful environment for P., and P. would not
benefit from continuing a relationship with Father.
There also is
little doubt that Father lacks the skills and the awareness necessary to care
for P. We find it disconcerting
that despite the number and severity of the injuries P. suffered while he was
in Father’s home, Father had “no clue” his child was injured. In the 29 months prior to the August
31, 2011 hearing, Father never asked or kept track of
P.’s progress in therapy, his doctor’s appointments, or his progress in the
foster home. Further, Father was unable
to substantially comply with the case plan despite receiving almost a year of
reunification services beyond the six months mandated by statute. (§ 361.5, subd. (a)(1)(B) [when the
child who is removed from the parents’ physical custody is under three years of
age, services “shall be provided for a period of six months from the
dispositional hearing . . . , but no longer than 12 months from
the date the child entered foster care . . . unless the child is
returned to the home of the parent”].) Father’s lack of
progress led the CSW to reach the conclusion that, despite Father’s pleasant
visits with P., “neither parent separately nor together [has] the capacity to
properly care, supervise and provide [P.] with a stable and healthy home.”
Due to his failure
to present any evidence that demonstrates that P. would benefit from continuing
his relationship with Father, we conclude that Father would not have been able
to establish that the parental benefit exception applied had he been present to
testify at the August 31, 2011 continued section
366.26 hearing. (See
reasonable doubt that the assumed error in notice was harmless trial
error.
Appeal
Mother claims there was insufficient evidence to support
the juvenile court’s finding that P. was adoptable. Mother also claims that the juvenile court
erred by refusing to apply the section 366.26 subdivision (c)(1)(B)(i) parental
benefit exception. We disagree with both
of Mother’s contentions.
A. Adoptability
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. (
1525, citing In re Autumn H.
(1994) 27 Cal.App.4th 567, 576.) The
appellate court must determine “whether there is substantial evidence from
which a reasonable trier of fact could by clear and convincing evidence find a
factual basis for the finding as to the child’s adoptability.” (In re
Marina S. (2005) 132 Cal.App.4th 158, 165.)
“‘“The sufficiency of evidence to establish a given fact, where the law
requires proof of the fact to be clear and convincing, is primarily a question
for the trial court to determine, and if there is substantial evidence to
support its conclusion, the determination is not open to review on
appeal.”’” (In re I.W., supra,
quoting Crail v. Blakely (1973) 8
Cal.3d 744, 750.)
There
is substantial evidence from which the juvenile court could find that P. was
adoptable. We find no evidence to
suggest that P. was difficult to place or unlikely to be adopted. Moreover, the juvenile court’s finding of
adoptability is further bolstered by the aunt’s repeated interest in adopting
P. and his foster mother’s willingness to care for him until his adoption.
The
issue of adoptability focuses on the minor, specifically whether the child’s
age, physical condition, and emotional state might make it difficult to find
someone willing to adopt him or her. (
1642, 1649.) Under section 366.26,
subdivision (c)(3), “a child may only be found to be difficult to place for
adoption if there is no identified or available prospective adoptive parent for
the child because of the child’s membership in a sibling group, or the presence
of a diagnosed medical, physical, or mental handicap, or the child is seven
years of age or more.”
In the
instant case, the aunt was identified as a prospective adoptive parent for
P. P. is under seven years of age, he is
not a member of a sibling group, and there is no suggestion from his physicians
or the CSW that he has a medical, physical, or mental handicap. In one of the reports, the CSW mentioned that
P. had eczema, asthma, and macrocephaly (a large head). However, despite these diagnoses, the CSW and
his foster mother consistently reported that he was healthy, intelligent, and
developing age appropriately. These
reports, coupled with the aunt’s desire to adopt P., led the juvenile court to
properly conclude that P. was adoptable.
Mother
further contends that DCFS failed to present the juvenile court with evidence
that P. was specifically adoptable by the aunt.
However, with regard to determining whether the juvenile court based its
finding of adoptability upon clear and convincing evidence, we view the aunt’s
repeated desire to adopt P. as substantial evidence that P. was generally
adoptable. (See, e.g.,
p. 1650 [“a prospective adoptive parent’s willingness to adopt generally
indicates the minor is likely to be adopted within a reasonable time either by
the prospective adoptive parent or by
some other family”]; In re Scott M. (1993)
13 Cal.App.4th 839, 844 [“[T]he question of a family’s suitability to adopt is
an issue which is reserved for the subsequent adoption proceeding.”].)
Mother
asserts that the reports submitted regarding P.’s status pursuant to section
366.22, subdivision (c)(1)(C) were insufficient and lacked the detail necessary
to allow the court to make an independent analysis as to P.’s
adoptability. However, Mother forfeited
the issue of the sufficiency of the adoption assessment on appeal by not
objecting to it in juvenile court. (See
886 [failure to object to adequacy of adoption assessment waives issue on
appeal].) Moreover, nothing in section
366.22 subdivision (c)(1)(C) requires the CSW to describe a child’s status in
exhaustive detail where such detail is not deemed necessary. The court used the DCFS reports to find that
P. was likely to be adopted, and substantial evidence supports its conclusion.
Parental Benefit Exception
Based
on the evidence presented at the hearing, we conclude that the juvenile court
did not err in failing to apply the section 366.26 subdivision (c)(1)(B)(i)
parental benefit exception, and therefore did not err in terminating Mother’s
parental rights. Mother bore the
burden of proof to show that the parental benefit exception applies in this case. (See In
re L. Y. L. (2002) 101 Cal.App.4th 942, 953.) If the issue on appeal turns on a failure of
proof at trial, the question for the reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law. (In re
I.W., supra, 180 Cal.App.4th at p. 1528.)
Furthermore, as we have discussed, to prove
the section 366.26, subdivision (c)(1)(B)(i) parental benefit exception applies, the parent must show more than
frequent and loving contact, an emotional bond with the child, or pleasant
visits—the parent must show that he or she occupies a parental role in the life
of the child. (In re Derek W.,
supra, 73 Cal.App.4th at p. 827.)
At the August 31, 2011
continued section 366.26 hearing, Mother’s attorney asked the court to apply
the parental benefit exception. Mother
was not present at the hearing to testify as to why the parental benefit should
apply, and at the request of her attorney, the court looked solely to the DCFS
reports to determine whether to apply the exception. The court ruled that there was no
establishment of a parental bond that outweighed the benefit of permanence
provided by adoption. On appeal, Mother
claims that she maintained regular contact with P. and he would benefit from
continuing that contact. Specifically,
she cites DCFS reports as evidence that she was loving
and kind with P. during her visits, that P. referred to her as “mommy,” and
that he was well aware that Mother and Father are his parents. This evidence is insufficient to meet the
burden of proving the section 366.26, subdivision (c)(1)(B)(i) parental benefit exception applies, and thus the juvenile court
did not err in refusing to apply it.
(See, e.g., In re Derek W., supra,
73 Cal.App.4th at p. 827.)
DISPOSITION
The
juvenile court’s order terminating parental rights is affirmed.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN,
P. J.
WILLHITE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2]
arguments.
