In re Ricardo B.
Filed 6/28/12 In re Ricardo B. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re RICARDO B. et al.,
Persons Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JOSE E.,
Defendant and Appellant.
D061168
(Super. Ct.
No. SJ12243A-C)
APPEAL from
orders of the Superior Court
of
County, Garry G. Haehnle, Judge. Affirmed.
Jose E.
appeals juvenile court orders terminating his parental rights to his minor
children, Ricardo B., Cynthia B. and Juan B., under Welfare and Institutions
Code section 366.26.
name="_ftnref1" title="">[1] Jose challenges the sufficiency of the
evidence to support the court's finding the beneficial parent-child
relationship exception to adoption did not apply to preclude terminating his
FACTUAL
AND PROCEDURAL BACKGROUND
In November
2009, eight-year-old Ricardo, six-year-old Cynthia and one-year-old Juan
(collectively the minors) became dependents of the juvenile court under section
300, subdivision (b), and were removed from parental custody based on findings
Jose and the minors' mother, Eileen B.,
to provide them with required medical
treatment. Cynthia had a serious
skin condition that was spreading, and Ricardo and Juan had no medication for
their asthma. The court placed the
minors in out-of-home care and ordered Jose to participate in
individual counseling, in-home support services and a parenting class.
During the
next six months, Jose had regular supervised visits with the minors. Jose's interaction with the minors was loving
and appropriate. Lourdes Elkins, the
social worker for the San Diego County Health and Human Services Agency
(Agency), reported Jose was complying with his case plan and making progress,
but his lack of insight into the minors' needs continued to place the minors at
risk. At a six-month review hearing, the
court continued the minors in out-of-home care and ordered six more months of
services for Jose.
Jose was
making progress in therapy. His
supervised visits with the minors continued to be consistent and
appropriate. Visits became unsupervised
and progressed to overnight.
In October
2010, the minors' foster mother reported Ricardo and Cynthia returned from an
unsupervised visit with bruises. They
said Jose was hitting them and they were afraid of him. Ricardo told Elkins that Jose hit him with a
rope, causing bruises on his legs. Jose
threatened to kill himself if Ricardo told Elkins what was happening at
home. Ricardo was afraid Jose would
follow through on his threat because he had a rifle, two switch blades and
several machetes at home. Cynthia said
Jose had not hit her, but he screamed at her and she was afraid of him. Elkins also learned Jose had caused a bruise
on Juan's leg because Juan cried too much.
The minors said they were afraid of Jose because he was abusing their
mother, and they did not want to live with him.
Eileen
admitted Jose had been physically abusing the minors and exposing them to
domestic violence. When Elkins
interviewed Jose about these allegations, he became upset, adamantly denied
them and demanded to confront Ricardo about what he had said. Jose screamed at Elkins and threatened to
commit suicide when she informed him that he needed to move out of the home
before the minors could be returned, and that visits would revert to
supervised. Although Elkins believed
Jose continued to place the minors at risk, she recommended further services
for him.
Elkins then
changed her recommendation for further reunification services after learning
that during a recent supervised visit between the parents and the minors, Jose
became angry at the minors' foster mother and screamed obscenities at her,
causing the minors to cry and become frightened. Jose stormed out, leaving Eileen without
transportation home. Eileen said Jose
threatened to kill her, the foster mother, Elkins and the maternal grandmother
if the minors were not returned to him.
Eileen's therapist reported the minors remained at risk of abuse as long
as Eileen and Jose continued their relationship.
In Elkins'
opinion, Jose continued to lack appropriate parenting skills as shown by his
physical abuse of the minors and the domestic violence that occurred in the
minors' presence. Jose's threats to kill
people if the minors were not returned to him showed his disturbed mental
process and need for psychiatric help.
Elkins believed Jose did not understand the minors' emotional needs and
he was not capable of caring for or protecting the minors. Thus, there was no substantial probability
the minors would be returned to Jose's custody by the next hearing.
At a
contested 12-month hearing, the court admitted in evidence the following
stipulated testimony of Ricardo: Jose frequently hit Ricardo with his hand, a
whip and another object that caused a bruise on his leg. Jose told Ricardo not to tell anyone,
including Elkins, about the physical abuse.
Jose also hit Cynthia and Juan, but not as often as he hit Ricardo. Ricardo was afraid of Jose and did not feel
safe with him. Before Ricardo was
removed from his parents' custody, he saw Jose use marijuana. Ricardo would like to live with Jose only if
he was not physically abusive and did not use drugs.
Elkins
testified Jose received services that should have prevented him from physically
abusing the minors. Jose had not ensured
the minors had access to medical care, even after Elkins emphasized the
importance of doing so. Jose did not
seem to understand the minors' medical conditions or what was needed to treat
them. In Elkins's opinion, Jose had not
progressed with his case plan, and the risk of returning the minors to his
custody was very high.
After
considering the evidence and arguments of counsel, the court terminated
services and set a hearing under section 366.26 to select and implement a
permanent plan for the minors. The court
also issued a restraining order preventing Jose from having contact with Elkins
and the foster mother.
In an
assessment report, social worker Melissa Rodriguez noted Jose had not
maintained regular contact with the minors between December 2010 and April
2011, having visited them only twice.
Rodriguez described the visits she supervised in February and March 2011
as appropriate. The minors greeted Jose
with hugs and seemed to enjoy their interaction with him. They hugged him goodbye and had no negative
reaction to leaving the visit.
Rodriguez
assessed the minors as generally and specifically adoptable. The minors had a strong attachment to the
maternal grandparents, whose home in China
was being assessed for placement. The
grandparents loved the minors and wanted to provide them with a stable home
through adoption. The minors were happy
with the plan of being adopted by the grandparents.
Between
April and September 2011, Jose maintained fairly regular contact with the
minors. Supervised visits were appropriate,
with Jose engaging the minors in play and showing interest in their
activities. Although the minors enjoyed
the visits, they had no negative reactions when visits ended. In Rodriguez's opinion, the minors and Jose
had a relationship, but the minors' interaction with him was similar to the
interaction they had with other people in their lives, such as the foster
parents. Jose had not been able to
consistently meet the minors' needs.
Although the minors would miss having visits with Jose if parental rights
were terminated, adoption would provide the minors with permanence and a safe,
stable family setting. Any parent-child
relationship between Jose and the minors was not so strong as to outweigh the
benefits the minors would receive through adoption.
In updated
addendum reports, Rodriguez noted Jose had been more consistent with supervised
visits in the last three months. Jose
interacted appropriately with the minors, took on an appropriate parental role
and showed adequate parental supervision.
The minors greeted Jose with excitement and hugs, and appeared
comfortable with him. With the exception
of one visit, the minors were able to leave with no negative reactions.
Rodriguez
reported Jose had not been forthcoming about his continued contact with
Eileen. Although Jose was now attending
weekly visits with the minors, he had not participated in any additional
services and was still not in a position to parent, care for, or meet the basic
needs of the minors.
At a
selection and implementation hearing, the court received in evidence Agency's
reports. After hearing arguments of
counsel, the court found the minors were likely to be adopted if parental
rights were terminated and none of the exceptions to adoption applied. The court terminated parental rights and
referred the minors for adoptive placement.
DISCUSSION
Jose
challenges the sufficiency of the evidence to support the court's finding the
beneficial parent-child relationship exception to adoption did not apply to
preclude terminating his parental rights.
He asserts he maintained regular visitation and contact with the minors,
who would benefit from maintaining their relationship with him.
A
After
reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child,
including the child's interest in a stable, permanent placement that allows the
caregiver to make a full emotional commitment to the child. (In re
Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the selection
and implementation hearing, the court has three options: (1) terminate parental rights and order
adoption as the permanent plan; (2) appoint a legal guardian for the child; or
(3) order the child placed in long-term foster care. (Ibid.)
"Adoption,
where possible, is the permanent plan preferred by the Legislature." (In re
Autumn H. (1994) 27 Cal.App.4th 567, 573.)
If the court finds a child cannot be returned to his or her parent and
is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds a compelling reason for
determining that termination of parental rights would be detrimental to the
child under one or more of the enumerated statutory exceptions. (§ 366.26, subd. (c)(1)(A) &
(B)(i)-(vi); In re A.A. (2008) 167
Cal.App.4th 1292, 1320.) "The
parent has the burden of establishing the existence of any circumstance that
constitutes an exception to termination of parental rights." (In re
T.S. (2009) 175 Cal.App.4th 1031, 1039.)
Because a selection and implementation hearing occurs "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.)
Section
366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if terminating parental rights would be detrimental to the child
because "[t]he parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the
relationship." We 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
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., supra, 27
Cal.App.4th at p. 575; accord In re
Zachary G. (1999) 77 Cal.App.4th 799, 811; In re Jason J. (2009) 175 Cal.App.4th 922, 936-937.)
To meet the
burden of proof for this statutory exception, the parent must show more than
frequent and loving contact, an emotional bond with the child or pleasant
visits. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-937;
823, 827.) The parent must show he or
she occupies a parental role in the child's life, resulting in a significant,
positive emotional attachment from child to parent. (In re
Derek W., supra, at p. 827; In re
Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We review
the court's finding regarding the applicability of a statutory exception to
adoption for substantial evidence. (
at p. 576.) In this regard, we do not
consider the credibility of witnesses, attempt to resolve conflicts in the
evidence or weigh the evidence. Instead,
we draw all reasonable inferences in support of the findings, view the record
favorably to the juvenile court's order and affirm the order even if there is
substantial evidence supporting a contrary finding. (In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of
showing there is no evidence of a sufficiently substantial nature to support the
court's finding or order. (
947.)
B
Here, the
record shows Jose regularly visited the minors from the time they were removed
from his custody until his reunification services were terminated. The frequency of Jose's visits, however, then
began to decline. He visited the minors
only twice between December 2010 and April 2011. He then visited them seven times in the next
six months, with no visits occurring the entire month of July. Only during the five weeks before the
selection and implementation hearing did Jose engage in regular one-hour
visits. Even were we to consider these
visits to be "regular" within the meaning of the statute, Jose did
not meet his burden of showing he had a beneficial parent-child relationship
with the minors so as to overcome the legislative preference for adoption.
Although
the interaction between Jose and the minors during supervised visits was loving
and appropriate, Jose did not consistently relate to the minors as a
parent. When visits were unsupervised,
Jose physically and emotionally abused the minors, causing them to fear him and
feel unsafe with him. The minors were
also afraid for their mother's safety after witnessing domestic violence
between Jose and Eileen. Jose threatened
to kill himself if the minors were not returned to his custody as a result of
the minors disclosing the abuse that occurred at home. Thus, Jose abdicated his parental role during
times of unsupervised contact with the minors.
Moreover,
the manner in which the minors related to Jose during supervised visits was
similar to the manner in which they related to other people. The minors were happy to see Jose, but
separated easily from him at the end of visits and suffered no adverse effects
due to his absence from their daily lives.
Indeed, an inference can be drawn that the minors enjoyed seeing Jose
only in a controlled setting that afforded them a sense of safety. The minors did not have a "significant,
positive, emotional attachment" to Jose such that terminating parental
rights would result in great harm to
them. (In re Jason J., supra, 175 Cal.App.4th at p. 936;
at p. 575.) "A biological parent
who has failed to reunify with an adoptable child may not derail an adoption
merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent." (
454, 466.)
At the time
of the selection and implementation hearing, ten-year-old Ricardo,
eight-year-old Cynthia and three-year-old Juan had been out of Jose's custody
for more than two years. The minors were
in need of a stable, secure and permanent home.
They had a strong attachment to the maternal grandparents, who were
committed to adopting them. The minors
were happy with the plan of adoption by their grandparents. The court was entitled to accept the social
worker's opinion that the benefits of adoption for the minors outweighed the
benefits of maintaining a relationship with Jose. (In re
Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in stable and
permanent home is paramount once a parent's interest in reunification is no
longer at issue].) We cannot reweigh the
evidence or substitute our judgment for that of the juvenile court. (In re
Casey D. (1999) 70 Cal.App.4th 38, 53.)
The minors, whose needs could not be met by Jose, deserve to have their
custody status promptly resolved and their placement made permanent and
secure. Substantial evidence supports
the court's finding the beneficial parent-child relationship exception did not
apply to preclude terminating parental rights.
DISPOSITION
The orders are affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1]
Statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2]
Eileen has not appealed.
