In re N.J.
Filed 6/20/12 In re N.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.J., a Person
Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.B.,
Defendant and Appellant.
E054629
(Super.Ct.No. J229911)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Lund Law Firm and Andrew H. Lund for Defendant
and Appellant.
Jean-Rene
Basle, County Counsel, Svetlana Kauper and Jamila Bayati, Deputy County
Counsel, for Plaintiff and Respondent.
Father
B.B. (Father) appeals after the termination of his parental rights to N.J. at a
Welfare and Institutions Code section 366.26 hearing.
claims the juvenile court erred by failing to apply the parental benefit
exception of section 366.26, subdivision (c)(1)(B)(i).
I
PROCEDURAL AND
FACTUAL BACKGROUND
A. Detention
On
November 6, 2009, four-year-old N.J., son of L.J. (Mother) and Father, was detained and
placed in foster care by the San
Bernardino County Children and Family Services (the Department).
According to the detention report, the Department was called to Loma
Linda University Medical Center (LLUMC) on November 5, 2009, due to a report that Mother and Father had
been fighting and threw bleach at each other.
Father had been admitted to another hospital with chemical exposure to
his corneas. Mother was admitted to the
emergency room at LLUMC reporting that she was struck by Father in the back of
the head three times. It was reported to
the Department that N.J. was at the hospital, his eyes were extremely dilated,
and he was very hyper as though he had ingested a substance. Mother refused any testing on N.J.
Mother
had recently lost her hearing. She was
95 percent deaf and did not know how to read lips or use sign language. She complained that she had been the victim
of domestic violence for a long time at the hands of Father. The domestic violence got worse when she lost
her hearing.
Mother
was admitted into the hospital. N.J. was
also admitted for observation. N.J. was
extremely hyperactive and aggressive.
Within 30 seconds after the social worker met N.J., he tried to punch
her in the face. N.J. had punched and
kicked several people at the hospital.
The
Department felt that Mother was a flight risk and that the detention of N.J.
was appropriate. On November
6, 2009, Mother and
Father were served with warrants of detention of N.J. Father commented that he was not involved in
any domestic violence and that he had been a victim of Mother’s anger. She had thrown bleach on him. He complained that Mother’s anger had
worsened since she became deaf.
Maternal
grandmother had reported that she had taken custody of N.J. in 2007 when Mother
was placed on a mental health hold. N.J.
had been very aggressive with her. She
called Father to pick up N.J., and he told her she would never see her grandson
again. She described Father as an
“extremely†angry person with a terrible temper.
Mother’s
friend, Ron, stated that he seen “the aftermath†of Father’s rage. Ron had bought a television for the family,
and Father had torn it apart. N.J. had
told Ron that Father was mean, was bad, and had broken his toys.
On
November 6, 2009, a social worker from the Department was taking N.J. to his foster
home. N.J. asked, “Is the devil going to
be there?†When N.J. was told no, he
responded, “Good. The devil breaks all
of my toys.†N.J. later disclosed to his
foster mother that the “devil†was Father.
N.J. also told the foster mother that Father hit him and Mother all of
the time.
There
had been three prior referrals to the Department for the family alleging
general neglect of N.J. and physical abuse in the family, but no case had been
initiated. Father had arrests but no
convictions for a drug offense in 2002 and assault with a deadly weapon in
2000.
On
November 9, 2010, the Department filed section 300 petitions against Mother and
Father alleging a failure to protect and provide (§ 300, subd. (b)) due to
their being engaged in domestic violence in N.J.’s presence. It was further alleged under section 300,
subdivision (a) that N.J. had unexplained bruises.
The
detention hearing was conducted on November 12, 2009. The juvenile court found a
detained in the custody of the Department.
Visitation would be one hour per week separately for the parents. Minor’s counsel noted that even though N.J.
was young, he was clear about his feelings and should not be forced to go to
visitation. The Department agreed that
visitation would have to be closely monitored.
B. Jurisdiction/Disposition
In
a jurisdiction/disposition report filed on December 1, 2009, the Department
recommended that reunification services
be granted to Mother and Father. Father
had advised the Department that he was the biological father of N.J. and had
always held him out as his own child.
Mother confirmed that Father was the biological father of N.J.
Father
was interviewed on November 12, 2009. He
was not aware of any bruises on N.J.’s body or how he got them. Father denied that he was the aggressor in
the altercation with Mother. He claimed that,
on the day they got into a fight, she threw a chair at him. He picked up a laundry basket that contained
bleach and headed to the laundry room.
Mother grabbed the bleach bottle and threw it at him. Father did not plan to reunite with
Mother. He was willing to take N.J., but
he recognized N.J. was aggressive and needed help. Father believed that N.J. had anger toward
him because he would leave when he and Mother would fight. Father admitted that he broke N.J.’s
skateboard, but he did it because N.J. was hitting him with it.
Mother
insisted that any bruises to N.J. were accidental. Father did not hit N.J.; he was just
“emotionally abusive.†The hospital
staff was confused about her refusing tests for N.J.
Mother
reported that Father’s behavior was “unpredictable and his rages [were]
unpredictable as well.†She claimed that
Father had thrown bleach at her and that was why she was hospitalized. She also claimed that Father bit her on the
arm. N.J. witnessed the entire
incident. Mother was concerned that
Father was in complete denial and blamed the incident on her. She was concerned that if N.J. was placed
with Father, he would be abused. Father
would tell N.J. that N.J. was making him angry and would bang his own head
against the wall when he was upset with N.J.
On
November 15, Mother went back to the apartment to collect some of her personal
items. Father was home. He threw N.J.’s toys on the floor and tore up
two of his books. Their landlord was
evicting them from the apartment. A notice
to quit the premises detailed three reports to the landlord in October 2009 of
Father beating up Mother in the apartment and loud noises.
A
social worker talked to N.J. on November 12, 2009, regarding a visit with
Father. N.J. said several times to the
social worker that he did not want to see Father because Father would be mad at
him and was mean. N.J. called Father a
devil.
At
the visit, when Father entered the room, N.J. crawled under a chair and would
not come out. N.J. finally crawled out
but immediately started punching Father and yelling that he was mad at
him. The visit was terminated
early. It took the social worker an hour
to calm N.J. down. N.J. continued to
call Father the devil. Subsequent visits
between Father and N.J. were less violent and aggressive. However, N.J. continued to show signs of
anger toward Father, and some visits had to be terminated early because N.J.
would not want to be with Father.
The
foster mother reported that when N.J. first arrived in the home, he had
nightmares and “accidents.†However, as
of November 30, 2009, he was no longer having either. His tantrums were decreasing. N.J. was showing less hostility toward
Father.
A
contested jurisdictional/dispositional hearing was conducted on January 28,
2010. The Department dismissed the
allegations in the petition under section 300, subdivision (a) and two of the
section 300, subdivision (b) allegations pertaining to Mother having a mental
illness that put N.J. in danger.
Father
called Robert Escalera, who wrote the detention report. According to the report, no charges of
domestic violence had ever been filed against Father. Escalera based his opinion that Father had
engaged in domestic violence based on statements made by Mother, the hospital
staff reports, N.J.’s behavior, and the history of the family. Escalera testified, “And my opinion is this
is an extreme case that I have []ever seen in my entire history as an employee
of the county . . . where I have seen such aggression to a
parent by a child this age.â€
Father
also testified at the jurisdiction hearing.
He explained that N.J. had trouble at the visits because they were right
after he got out of school, and he was tired.
The visits were getting better.
Father denied he had ever hit Mother or even threatened to hit her. Mother and Father had difficulty
communicating after she lost her hearing.
The loud noises coming from their apartment complained of by the landlord
was Father trying to communicate with Mother since she lost her hearing.
Father’s
counsel argued that the domestic violence had not been shown and the police
were not filing charges. Father was
willing to participate in reunification.
The Department maintained there had been
hospital, and N.J. showed the effects of witnessing the event. N.J. had clearly stated that Father hit
Mother; Father was in denial.
The
juvenile court found that there was mutual combat and domestic violence on
behalf of both parties. It was having a
direct impact on N.J. The juvenile court
found the remaining allegations under section 300, subdivisions (b) true. Reunification services were granted to Mother
and Father. Father was named the
presumed father.
C. Review
Reports and Section 366.21 Hearings
A
six-month review report was filed on July 16, 2010. It was recommended that
Mother
had moved into an apartment for which Father was paying. Father regularly visited Mother. On April 1, 2010, a social worker from the
Department visited Mother, who was then living in a care facility. She had dark black bruising to both eyes and
to her nose. She was not speaking in
full sentences and had a Spanish accent.
She claimed that she had had a seizure.
She claimed that Father came to her apartment and stabbed an “air
mattress.†The police were called, and
Mother was evicted.
N.J.
was developing normally, although he had some speech delays. He was in kindergarten, and it was
recommended that he repeat kindergarten.
Father refused to hold him back, and he was promoted to first
grade. N.J. would be receiving special
services at school, as he was considered below grade level. He had been in counseling. He told his therapist that he had experienced
violence against him by Father.
Mother
had been referred to the Family Services Association of Redlands. On February 23, 2010, staff there witnessed
Father try to hit Mother with his car.
Mother admitted to the case manager that earlier that day Father had
pulled her hair and had not wanted her to leave home. Father had taken Mother’s phone from her and
had broken it. She admitted that Father
had tried to hit her with his car.
Father
had a meeting with the Department in February 2010 regarding his case
plan. He became upset and left the
office. On a second occasion, he again
refused to sign the case plan, got upset, and left the office. On another occasion, Father had to wait an
hour at the Department for a visit with N.J., but due to miscommunication,
there was no visit. Father became upset
and started yelling obscenities. He
almost broke the front door off its hinges. Father threw papers in the air and drove off
fast. He later called and asked to make
up the visit with N.J.
Father
had been participating in a domestic violence program. His therapist had reported him as “very
intelligent and highly manipulative.†Father
was visiting N.J. one time per week. In
December 2009, during a visit, N.J. had become angry and threw things at
Father, and he hit his aunt, who was also present, in the face with his fist. Father ended the visit early because he could
not control N.J. More recent visits with
Father had been better. Father brought
N.J. gifts and money for ice cream.
A
social worker had asked Father what he needed to overcome the circumstances
that had brought him to the attention of the Department, and he had responded,
“[N]othing.†He still claimed he did
nothing wrong. He had completed domestic
violence classes and wanted custody of N.J.
It was recommended that Father complete a 52-week domestic violence
course. At the hearing on July 28, 2010,
reunification services were continued, and N.J. remained in foster care.
A
12-month review report was filed on January 19, 2011. It was recommended that services be
terminated and that a section 366.26 hearing be set. The recommendation was adoption by the maternal
aunt and uncle.
Mother
was living in an apartment paid for by Father. Although they were not together,
Father continued to financially support Mother.
Mother continued to suffer from seizures but would not take her
medication. In a progress report filed
by N.J.’s counselor on October 4, 2010, he was making progress but had some
reoccurring problems with violence.
The
maternal uncle and his wife were being assessed for adoption. They had three young children. N.J. had visited the home for one week and
bonded with the family.
Father
continued to deny any violent behaviors.
He threatened that he was going to sue the Department for the way that
he was treated. He also stated that he
no longer was going to visit with N.J. but then changed his mind. Father was fully participating in his
domestic violence program and completed a parenting class. His therapist recommended further treatment. Father had “cognitive distortions†about his
relationship with Mother that allowed him to blame her for the violence.
Father
regularly attended weekly visitation with N.J.
During one visit, a social worker had witnessed Father kick a soccer
ball so hard at N.J. that it knocked N.J. over.
N.J. was not hurt, but Father showed no concern for him. In November 2010, N.J. broke Father’s
glasses, and Father informed the Department that he no longer wanted to visit
with the child. Father did show up for
the next visit. He had walked out on
visitation when N.J. started to act up.
Father oftentimes spoke about Mother during visitation with N.J. even
though he had been told not to discuss her.
The
Department recommended that N.J. not be returned to either parent as they both
were in denial about their dysfunctional relationship and the effects of
domestic violence on N.J. Although they
had participated in 14 months of reunification services, they did not appear to
have benefitted from them. It was not
likely that N.J. would be returned to Father and Mother; the plan was adoption
by the maternal uncle.
After
the review report was filed, Mother died on February 8, 2011, apparently from a
seizure. Further, Father had two
unauthorized contacts with N.J. He had
gone to N.J.’s school without permission.
He had also gone to a church service that the foster mother and N.J.
were attending. Father’s counsel was
unaware of the unauthorized visits.
Father insisted that he did not know his actions were improper. The juvenile court felt that Father was “just
trying to manipulate the situation.â€
At
the contested hearing conducted on March 18, 2011, Father testified. He was employed and lived in Redlands. Mother had died at his apartment. Father claimed that N.J. became very upset
when Mother lost her hearing because he could not communicate with her. Father still denied he ever hit Mother. He blamed N.J.’s aggressiveness on Mother
losing her hearing. He wanted N.J. in
his custody.
Father
admitted that there had been a call regarding a domestic disturbance made from
the apartment several days prior to Mother’s death. Father called the police about the
disturbance because Mother was throwing things and was drunk. Father claimed that N.J. called him the devil
because Mother had called him that when she was under the influence of
drugs. Father said he felt bad for not
taking N.J. out the home away from Mother; he claimed he found out after
Mother’s death that she was using illegal drugs. N.J. was now living with his maternal uncle
and aunt in Northern California.
The
juvenile court expressed doubt regarding statements in the report that Father
had tried to run over Mother, because if it were true, he would have been
arrested for assault with a deadly weapon.
However, the trial court believed there was some domestic violence
involved in the case and that Father was not acknowledging his part in it. Based on N.J.’s behavior at the beginning of
the case, it was clear to the juvenile court that something had happened.
The
juvenile court did not believe that N.J. could be returned to Father within the
time limits. It understood that domestic
violence situations can be mutual, but Father was accepting no
responsibility. Father’s counsel noted
that Mother was now deceased, and their relationship was no longer an
issue. The juvenile court indicated that
it did not think that reunification was impossible, but it would not happen
during the defined time limits. It was
primarily concerned with Father not taking any responsibility in the domestic
violence.
The
juvenile court terminated reunification services and set a section 366.26
hearing. It did state that it was not
certain that termination of parental rights was in the best interest of N.J.,
but it had to terminate because reunification had not occurred during the time
period for services. Father was notified
that at the section 366.26 hearing, it would consider termination of parental
rights at the hearing and N.J.’s best interests.
D. Report
for Section 366.26 Hearing
On
July 6, 2011, the Department filed a section 366.26 report. The Department was recommending adoption of
N.J. by the maternal aunt and uncle.
N.J.
continued to be very aggressive. N.J. had put a pillow over the face of the
four-year-old daughter of his adoptive parents until she cried. A new therapist was being sought for N.J. N.J. also stole things from his adoptive
family when he first arrived, but he was doing better. N.J. would cower as though he were going to
get hit when he was being verbally disciplined.
He told the adoptive mother that he hated Father. He also told the adoptive mother that Father
hit and kicked Mother, and N.J. would try to stop him. Before and after visits or phone calls with
Father, N.J. would be aggressive.
However, N.J. was becoming increasingly more loving with the adoptive
family.
N.J.
had monthly visits with Father. Father
refused to ride the bus to Northern California to visit N.J., so N.J. had to be
transported. For the first visit, N.J.
was picked up by a social worker and told he was going to visit Father. N.J. did not want to go and said he never
wanted to see his father again. He was
given gifts and cookies by Father.
During the visit, he was hyperactive, and Father had no control over
him. After 30 minutes, N.J. said that he
wanted to go back to “his family.â€
For
the second visit, N.J. was afraid to leave the adoptive family. When they arrived at the visit, N.J. said
that he did not want to visit with Father because Father was mean to
Mother. After 30 minutes, N.J. wanted to
leave the visit. Father talked about
Mother during the visit. After the
visit, N.J. was crying and told the social worker that Father was mean to
Mother and that Mother had not been happy.
Phone
conversations that occurred weekly between Father and N.J. were appropriate,
but N.J. only wanted to talk for a few minutes and wanted to end the
conversations. He was encouraged by the
adoptive father to remain talking to Father.
N.J.
understood adoption and wanted to live with his aunt and uncle. He referred to his adoptive parents as “momâ€
and “dad†and told them he loved them.
The adoptive parents had three young children. They had a large home that could accommodate
the children.
The
section 366.26 hearing was set as contested in order for Father to
testify. At the hearing, the juvenile
court terminated the parental rights of Father, and N.J. was freed for
adoption. Father filed an appeal from
the termination of parental rights.
II
BENEFICIAL
PARENT RELATIONSHIP EXCEPTION
Father
contends that the juvenile court erred because it failed to apply the
beneficial parent/child exception of section 366.26, subdivision (c)(1)(B)(i),
since he maintained a substantial and close relationship with N.J. He also claims that the juvenile court did
not provide a detailed analysis of the reasons it was not applying the
beneficial parent/child exception and did not consider legal guardianship as an
alternative.
A. Additional
Factual Background
Father
was present at the section 366.26 hearing held on August 22, 2001. The Department submitted on their
reports. Father testified and claimed he
had not visited with N.J. for two months.
The previous month he had gone to a location where a visit was to occur,
and N.J. never came to the visit. Father
indicated that the last 15 to 20 visits with N.J. went well. He loved N.J.
He believed that it would be in N.J.’s best interest to continue with
Father as his parent.
Minor’s
counsel supported the adoption and stated there was no showing of a bond
between Father and N.J. Father’s counsel
argued there was a bond and that the Department’s reports were biased. Father’s counsel referred the juvenile court
to the prior testimony at the review hearing.
The Department noted that from the outset of the case, N.J. feared
Father. There could be no unsupervised
visits because Father had not progressed.
The
juvenile court indicated that it was looking at the way that N.J. reacted
before and after the visits. The
juvenile court stated, “I think as described, the caretaker’s description of
what was going on and how the child reacted before and after, by all
appearances the caretaker has been remarkably effective in willing to do what
was right by the child and by the father.
[¶] But under the circumstances,
everything considered, I think the potential outcome of legal guardianship or
adoption, those in theory would be the real choices, but the law under these
circumstances requires that adoption proceed.
That’s the way I see it.†After
the juvenile court terminated Father’s parental rights, he abruptly left the
courtroom before the hearing was concluded.
B. Analysis
At
the section 366.26 hearing, the sole issue “‘is whether there is
child is adoptable.’ [Citations.]†(In re
Josue G. (2003) 106 Cal.App.4th 725, 733; see § 366.26, subd.
(c).) “Adoption, where possible, is the
permanent plan preferred by the Legislature.â€
(In re Autumn H. (1994) 27
Cal.App.4th 567, 573.) If the court
finds that a child may not be returned to his or her parents and is likely to
be adopted, it must select adoption as the permanent plan, unless it finds that
termination of parental rights would be detrimental to the child under one of
the seven exceptions set forth in section 366.26, subdivision (c)(1)(A) and
(c)(1)(B)(i) through (v). (See
766, 773.)
The
parental benefit or “beneficial relationship†exception is set forth in section
366.26, subdivision (c)(1)(B)(i). The
exception applies where “‘[t]he parents . . . have maintained regular visitation and contact with the minor and the
minor would benefit from continuing the relationship.’†(In re
Derek W. (1999) 73 Cal.App.4th 823, 826.)
The parent has the burden of proving that the exception applies. (Ibid.) “The parent must do more than demonstrate
‘frequent and loving contact[,]’ [citation] an emotional bond with the child,
or that parent and child find their visits pleasant. [Citation.]
Instead, the parent must show that he or she occupies a ‘parental role’
in the child’s life.†(
the emotional attachment between the child and parent must be that of parent
and child rather than one of being a friendly visitor or friendly nonparent
relative, such as an aunt.
[Citation.]†(
454, 468.)
The
record does support that Father maintained consistent visitation with N.J.
throughout the proceedings. However,
those visits were not beneficial to N.J., and Father failed to establish that
his relationship with N.J. outweighed the permanency and stability that
adoption provided to N.J.
From
the outset of the dependency proceeding,
N.J. was aggressive and violent. He
punched a social worker and kicked people at the hospital. His grandmother could not control him. It was clear N.J. had witnessed domestic
violence between Father and Mother, and it had had an impact on him. N.J. continued to be aggressive in his
adoptive home but was getting better with help from the parents.
Father
was abusive and violent. He was described by several people as
aggressive and angry. Mother called him
abusive and unpredictable. N.J. called
him the devil because he was mean to N.J. and hit Mother. Father continued to deny any involvement in
the domestic violence with Mother despite numerous reports of violence between
them. These domestic disturbances
continued until Mother died.
Visitation
between N.J. and Father did not establish that there was a bond between
them. At the first visit, N.J. hid in
the corner under a chair. At subsequent
visits, N.J. would be aggressive, and some of the visits had to be terminated
early. Any time a visit did not go well,
Father threatened that he would no longer attend visits. Although visits became more peaceful, there
was no showing of a loving bond. Once
N.J. was placed with the adoptive family, he did not want to attend visitation
and wanted to end the visits early.
After each visit, N.J. would act out and be aggressive.
The
evidence before the juvenile court showed that N.J. feared Father and that
there was little bond between them. N.J.
stated that he hated Father and wished that he was not his biological father. N.J. only improved once he was in a stable
environment, and he reverted back to his aggressive behavior after being with
Father. Father did not occupy a parental
role in N.J.’s life, and there was nothing to show that N.J. would benefit from
continuing the relationship.
Father
points to evidence that visits were consistent and that N.J.’s attitude
improved and became more positive toward him.
Further, he points to evidence that N.J.’s anger toward Father was
diminishing. Father expressed his love
for N.J. and wanting to continue the relationship. Father had participated in his domestic
violence counseling.
None
of this evidence establishes that there was any kind of bond between Father and
N.J. In fact, it was reported that N.J.
continued, even after being out of Father’s custody for over 14 months, to be
aggressive before and after his visits with Father. N.J. did not want to attend visits and
expressed boredom during the visits.
There simply was no parental bond.
Father
also complains that the juvenile court did not appropriately consider the
beneficial relationship exception and the juvenile court failed to consider
guardianship. The record belies Father’s
claim. Father testified at two hearings,
and the juvenile court carefully considered his testimony and the reports. Moreover, the juvenile court was aware that
in terminating Father’s parental rights, it had to take into account N.J.’s
best interest. The juvenile court noted
that it was making its decision to order adoption, “in the best interest of the
child.â€
Father
claims that the juvenile court failed to consider legal guardianship. However, especially in light of the fact that
N.J. had moved to Northern California, guardianship was not appropriate in this
case. “[G]uardianship is only the best
possible permanent plan for children in circumstances where the exceptions to
terminating parental rights in section 366.26, subdivision (c)(1) apply.†(In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Here, as discussed, the juvenile court
properly determined that the beneficial parent/child relationship exception did
not apply. The adoptive family lived in
Northern California, but they were the maternal uncle and aunt. Being with them provided the necessary
stability and permanency that N.J. deserved.
The juvenile court properly concluded that the parental/ child
relationship exception did not apply in this case and properly ordered adoption
of N.J.
title="">[3]
III
DISPOSITION
The
order appealed from is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
McKINSTER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
instant appeal. She died during the proceedings
from a suspected seizure disorder.
