In re Natalie T.

 

 

Filed 8/29/14  In
re Natalie T. 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NOT TO BE PUBLISHED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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 Natalie T., a Person Coming Under the Juvenile Law.   LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Appellant,               v.   N.T.,               Defendant and Respondent.

B252926         (Los Angeles County       Super. Ct. No. CK90631)

 

 

            APPEAL
from orders of the Superior Court of
Los Angeles County, Tony L. Richardson, Judge.  Reversed and remanded.

            John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for
Plaintiff and Appellant.

            Christopher
R. Booth, under appointment by the Court of Appeal, for Defendant and
Respondent.

___________________________________

            In this dependency action (Welf.
& Inst. Code, § 300),href="#_ftn1"
name="_ftnref1" title="">^[1] the Los Angeles County Department of href="http://www.sandiegohealthdirectory.com/">Children and Family Services
appeals from section 366.26 orders that identified legal guardianship or foster
care as the child’s permanent plan.  The appeal
challenges the application of the parent-child relationship exception—also
called the “benefit exception”—to termination of parental rights.  (§ 366.26, subd. (c)(1)(B)(i).)  The Department contends the trial court erred
in finding the exception applies to this case. 
Based on our review of the record, we conclude the finding was
premature, and we reverse and remand for further proceedings.

 

>BACKGROUND

            Natalie
T. was born in 2005 to Erika B. (Mother), who is not a party to this appeal,
and respondent N.T. (Father).  When Natalie
came to the Department’s attention in March 2010, she was riding with Mother in
a stolen car that was driven by Mother’s boyfriend, who crashed the car during
a police pursuit.  It is undisputed that
Mother, who failed to secure Natalie in a seatbelt or href="http://www.sandiegohealthdirectory.com/">child safety seat, had
endangered Natalie.  Mother was arrested
and Natalie was released to Father’s custody.href="#_ftn2" name="_ftnref2" title="">^[2]  

            The
record contains almost no information concerning Natalie’s relationship with
Father prior to Mother’s arrest.  We
infer, however, that Mother was the primary custodial parent based on the fact
that Father, who lived apart from Mother in another city, took several weeks to
enroll Natalie in school following Mother’s arrest.  

            One
month after Natalie was released to his custody, Father tested positive for
drugs and entered an agreement with the Department to receive href="http://www.fearnotlaw.com/">family reunification services.  Natalie was placed with relatives while Father
participated in a substance abuse treatment program.  He was dismissed from the program after continuing
to test positive for drugs.  

            The
Department filed a section 300 petition on Natalie’s behalf in November 2011,
which alleged in relevant part that she was endangered by her parents’ unresolved
substance abuse issues.  (§ 300, subd.
(b) [failure to protect].)  Initially,
Natalie was placed in the care of a maternal aunt who lived in the home of the
maternal grandmother (Grandmother).  The
Department later named Grandmother as Natalie’s primary caregiver, and Natalie has
been in her care throughout these proceedings.  

            In
December 2011, the trial court sustained the section 300 petition and granted
family reunification services and visitation to both parents.  Father was ordered to participate in programs to
address parenting, alcohol, and drug abuse issues. 

            At
the six-month review hearing, Father was in minimal compliance with the case
plan.  Although he was enrolled in an
outpatient substance abuse program, he was at risk of being terminated for poor
attendance and missed drug
tests.  And although he had been
allowed monitored visitation three times a week, he visited Natalie only about once
a month.  

            At
the time of the one-year review hearing, Father was enrolled in a residential
treatment program, but was anxious to quit after only one month and without
completing the program.  Natalie was
thriving in Grandmother’s care; the Grandmother wanted to adopt her in order to
provide her with a stable and permanent home.  The Department recommended a permanent plan of
adoption by Grandmother, whose home study for adoption had been approved.  After finding that Father had not maintained
regular contact with the child nor made significant progress in resolving the
problems that led to her removal, the court terminated reunification services
and scheduled a contested hearing for termination of parental rights.  (§ 366.26.) 
The court granted Father a single five-hour monitored visit each week.  

            The Department’s
report for the section 366.26 hearing indicated that Father had been arrested
in April 2013 for possession of a controlled substance, and had missed several
visits in May and June 2013.  The report
noted that Natalie loved living with Grandmother, who in turn loved Natalie and
wanted to adopt her.  

            At
the October 2013 section 366.26 hearing, Father called Natalie as a witness for
the purpose of establishing the benefit exception to adoption (§ 366.26, subd. (c)(1)(B)(i)).
 She testified that she would like to
live with Grandmother and visit Father on weekends, but if that was not
possible, she would still like to be adopted by Grandmother.  Grandmother is the adult in her life.  It is she who talks to Natalie’s teachers and
takes her to school and to the doctor.  Natalie
likes visiting with Father because she enjoys going to “fun places” like Disneyland, Knotts Berry
Farm, and Soak City, and buying things.
 After their visits, she misses him and
wants “to stay with him a little longer.”  On the weekend before the hearing, she went to
Sky Zone with her family, but Father did not go.  He took her to buy a pet fish that she keeps
at his house.  When they got to his
house, she played by herself with her toys. 
She is in third grade and does her own homework, which she never takes
to Father’s house.  She would like Father
to attend school events, but has never invited him to come. 

            Father’s
attorney argued that in light of Natalie’s testimony, it would be in her best
interest to preserve Father’s parental rights and make Grandmother the legal
guardian, thus ensuring that Father’s visits will continue.  Mother’s attorney joined in this request.  

            Natalie’s
attorney disagreed.  She contended there
were no applicable exceptions to adoption, which was the appropriate plan in
this case.  She argued that Father had
failed to make the required showing that terminating his parental rights would
be detrimental to the child.  Counsel stated
that although Natalie had fun with Father, his visits were not regular and he has
never played a parental role in her life.  And she maintained that any incidental benefit
that might be gained from the visits would not outweigh the substantial benefits
that Natalie would receive from the permanency of adoption in a stable and
loving home.  

            Counsel
for the Department agreed with Natalie’s attorney that the benefit exception had
not been established in this case.  He also
asserted there was no indication that Grandmother would terminate Father’s
visits—which had become “somewhat consistent and regular” during the latest
period—once the adoption was finalized.  He
pointed out that even during Father’s recent incarceration, Grandmother had
allowed Father’s relatives to take Natalie to visit him.  He argued that any “emotional significance” that
was attached to the visits would not outweigh the benefits that would result
from the permanency of adoption.  

            Over
the objections of counsel for Natalie and the Department, the trial court found
the benefit exception applied because Father’s recent visits were “as regular
as they could be” during his incarceration, and Natalie wanted to continue their
relationship.  The court elected not to
terminate parental rights and selected legal guardianship as the “less
restrictive” placement plan.  But Grandmother
stated she did not want to be the legal guardian because Father was “not
behaving well” and was returning Natalie from visits at midnight or 1 a.m.  Grandmother requested that a third party
handle the transfers so Father would be “committed to returning” Natalie at the
scheduled time.  

            The
court directed the Department to make any necessary changes to facilitate
Father’s visits.  It also ordered the
Department to prepare guardianship papers and “investigate where maternal
grandmother stands on legal guardianship.”

            Natalie’s
attorney sought permission for Grandmother to address the court a second time
because “we have not heard from her, that she’s in agreement with the legal
guardianship.”  The court denied the
request, stating it had already allowed Grandmother to speak.  When counsel replied, “[s]he’s not done,” the
court stated, “[s]he is done because I said she’s done.  You are done because I said you are done.”  Counsel made one last effort, pointing out,
“she’s presenting information about . . . the safety of the
child which I think is relevant for this court to hear.”  The court did not permit Grandmother to
speak.  It adhered to its decision to forgo
adoption in favor of legal guardianship and directed counsel to present
Grandmother’s safety concerns “to the social worker.”  

            At
the continued section 366.26 hearing the following month, the court acknowledged
that it had derailed Natalie’s proposed adoption by Grandmother over the
“strenuous objection—maybe that is putting it mildly—of the Department as well
as minor’s counsel,” and that Grandmother remained “adamant about adoption.”  After agreeing with the Department’s counsel
that Grandmother could not be forced to accept a legal guardianship, it granted
a continuance to allow the Department to ascertain Grandmother’s views as to legal
guardianship and prepare a report of its findings.  Because the order applying the benefit
exception was left in place, the possibility of adoption was foreclosed.  Seeking appellate review of that ruling, the
Department timely appealed from the October and November 2013 section 366.26 orders.  (§ 395 [post-judgment orders are appealable].)

 

>DISCUSSION

            At
the section 366.26 hearing, the court selects a permanent plan for the
dependent child.  Of the available
options, “[a]doption is the preferred permanent plan.  (In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.)  Freeing a child for adoption requires
termination of parental rights.  â€˜[I]n
order to terminate parental rights, the court need only make two findings:  (1) that there is clear and convincing
evidence that the minor will be adopted; and (2) that there has been a previous
determination that reunification services shall be terminated.’  (Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 249–250.)”  (In re
Jasmine T. (1999) 73 Cal.App.4th 209, 212.) 


            The
benefit exception is one of the few grounds for not terminating parental rights.
 (§ 366.26, subd. (c)(1)(B)(i).)  It “applies if termination of parental rights
would be detrimental to the child because 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)(i).)”  (>In re Jason J. (2009) 175 Cal.App.4th 922,
936.) 

            The
parent has the burden of establishing the benefit exception by showing 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.”  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  The trial court “balances the strength and
quality of the natural parent/child relationship in a tenuous placement against
the security and the sense of belonging a new family would confer.  If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for
adoption is overcome and the natural parent’s rights are not terminated.”  (Ibid.)  “The exception must be examined on a
case-by-case basis, taking into account the many variables which affect a
parent/child bond.  The age of the child,
the portion of the child’s life spent in the parent’s custody, the ‘positive’
or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a
parent/child bond.”  (>Id. at pp. 575–576.)

            On
appeal, the Department contends the finding of detriment—which was made without
allowing Grandmother “to explain whether she was interested in assuming legal
guardianship over Natalie”—was erroneous and must be reversed.  We agree that the failure to consider
Grandmother’s preference for adoption over legal guardianship was erroneous.   

            In
order to reach an informed, intelligent and just decision, the trial court must
know and consider the material facts and evidence, and apply the correct legal
principles.  (>Oldham v.
California Capital Fund, Inc. (2003) 109 Cal.App.4th 421, 430.)  In this case, the parties agreed that some
form of placement with Grandmother would be in Natalie’s best interest.  The question presented by Father’s request to
apply the benefit exception was whether the benefit of preserving his parental
rights outweighed the benefit of providing Natalie with a permanent adoptive
home with Grandmother, who did not want to be a legal guardian.  When Grandmother attempted to raise a safety
concern involving Father, who has a drug problem and was keeping Natalie out until
midnight or 1
a.m., the court refused to hear her, stating, “She is done
because I said she’s done.  You are done
because I said you are done.”  Without
considering the proffered information concerning the potential detriment that
preserving Father’s rights could pose to the child, the court rejected the
preferred plan of adoption, thus narrowing the available options to legal
guardianship or foster care. 

            Because
the court failed to consider the material information that Grandmother was
trying to present at the first section 366.26 hearing, the court’s finding that
termination of parental rights would be detrimental to the child was premature.  A new hearing is required so that all relevant
and material evidence may be fully considered, and a determination made whether
Father has met the considerable burden of proving the benefit exception. 

            A parent’s
burden of proving the benefit exception is not easily satisfied.  “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 relationship maintained during periods of visitation with the parent.  [Citation.]” 
(In re Angel B. (2002) 97 Cal.App.4th
454, 466.)  “No matter how loving and
frequent the contact, and notwithstanding the existence of an ‘emotional bond’
with the child, ‘the parents must show that they occupy “a parental role” in the
child’s life.’  (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108 . . . .)  The relationship that gives rise to this
exception to the statutory preference for adoption ‘characteristically
arise[es] from day-to-day interaction, companionship and shared experiences.  Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’  (In re
Casey D. (1999) 70 Cal.App.4th 38, 51.)”  (In re
K.P. (2012) 203 Cal.App.4th 614, 621 [a two-hour monitored visit at a park
or getting a bite to eat does not constitute the type of parental bond
necessary to satisfy the benefit exception to adoption].)  “Because a section 366.26 hearing occurs only
after the court has repeatedly found the parent unable to meet the child’s
needs, it is only in an extraordinary case that preservation of the parent’s
rights will prevail over the Legislature’s preference for adoptive placement.”  (In re
Jasmine D., supra, 78 Cal.App.4th
at p. 1350.) 

            If preserving
parental rights will threaten Natalie’s stable and loving home with Grandmother,
who does not wish to be a legal guardian because of recent difficulties with
Father’s visits, the court must weigh that negative factor against the benefit
of preserving Father’s visits.  This is
essential to an informed, intelligent, and just determination of the permanent
placement plan that will best serve the child’s interest.  We therefore reverse the benefit exception
finding as premature, and direct the Department to gather additional evidence
regarding Grandmother’s safety concerns and preferences as to the permanent
placement options of adoption, legal guardianship, and foster care.  After receiving such evidence, the court
shall reconsider Father’s request to apply the benefit exception. 

 

>DISPOSITION

            The section
366.26 orders are reversed and the matter is remanded for reconsideration of
the benefit exception to adoption. 

            >NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

                                                                                    EPSTEIN,
P. J.

We
concur:

 

 

 

            WILLHITE, J.

 

 

 

            EDMON, J.*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.