In re Eli A. CA2/1 ( 2015 )

Filed 4/22/15 In re Eli A. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
In re ELI A., a Person Coming Under the B258506
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK77446)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
DARWIN A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Tony L.
Richardson, Judge. Affirmed.
______
Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
______
Father Darwin A. appeals from the order terminating his parental rights over his
son Eli A. Father contends that the juvenile court erred by terminating parental rights
because the parent-child relationship exception to termination in Welfare and Institutions
Code section 366.26, subdivision (c)(1)(B)(i)1 applies in this case. We disagree and thus
affirm the order.2
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Section 300 Petition
In May 2009, when Eli was seven months old, the Department of Children and
Family Services (DCFS) filed a section 300 petition against mother and father based on
domestic violence between the parents. The juvenile court released Eli to mother. It
granted father monitored visitation in a neutral setting and issued a restraining order
requiring father to stay at least 100 yards away from mother and Eli. In July 2009,
the court declared Eli a dependent of the court, continued his placement with mother
under DCFS supervision, ordered family maintenance services for mother and family
reunification services for father, granted father monitored visitation and required father to
participate in various programs, including domestic violence and anger management
counseling. Mother and Eli lived with the maternal grandmother. For the next year,
father visited Eli sporadically but did not comply with the case plan. In July 2010, the
court terminated jurisdiction with a custody order giving mother and father joint legal
custody of Eli and sole physical custody of Eli to mother. Father was awarded monitored
visitation.
1
Statutory references are to the Welfare and Institutions Code.
2
Father also has a daughter Ali A., who is Eli’s younger sister. The juvenile court
terminated father’s parental rights as to Ali as well as Eli. Father appeals the termination
only with respect to Eli and does not argue that termination was improper for Ali. Ali
thus is not at issue in this appeal. The court also terminated mother’s parental rights of
both children. Mother did not appeal.
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2. The Second Section 300 Petition
Several months later, in November 2010, DCFS received a referral alleging
neglect by mother of her and father’s newborn, Ali. Mother reportedly had tested
positive for marijuana after giving birth. DCFS determined that mother lived with father,
not in the maternal grandmother’s home, as mother had moved in with father when the
prior dependency case closed. Mother agreed to return to live at the maternal
grandmother’s home with Eli and Ali while the matter was investigated. Over the next
couple months, DCFS attempted but was unsuccessful in reaching father. After finally
reaching him by telephone, father agreed to meet the social worker the following day but
did not show. About a week later, DCFS learned from the maternal aunt that mother was
living with father at his apartment. That same day, father reported that he had been
arrested for domestic violence against mother, and a restraining order required him to
stay 100 yards away from mother and the children. Father said mother had been living
with him and would hide when DCFS came to the apartment. The police report indicated
that, during an argument, father had punched, pushed and choked mother while the
children, Eli then two and Ali then two months, were in the apartment.
In February 2011, the children were taken into protective custody, and DCFS filed
another section 300 petition, again relating to domestic violence between the parents as
well as mother’s marijuana use. The children were initially detained in shelter care but
then placed with the maternal grandmother. Although the court had ordered monitored
visits of two to three times per week with the children, father had difficulty arranging
visits and had only two visits between detention and May 2011. Father also attempted to
find mother at her apartment. On May 17, the juvenile court declared the children
dependents of the court based on domestic violence and mother’s marijuana use, ordered
family reunification services for mother and father and monitored visitation of two to
three times a week in a neutral setting. About a week later, father was again arrested, this
time on an outstanding warrant. And he was arrested on June 15 for violating the
restraining order.
3
Over the next six months father did not visit the children within the parameters of
his monitored visitation but rather attempted to secure visits through the maternal
grandmother. DCFS removed the maternal grandmother as a monitor of father’s visits.
Nevertheless, father continued to show up at her house and demand to see the children.
Mother was not in compliance with her case plan, and father called the maternal
grandmother and the maternal aunt looking for mother. He did not often speak to Eli
during these calls, and when he did he would ask the child where he could find mother.
On one occasion, father attempted to take Ali while she was at church with the maternal
aunt but returned her; father called the incident a misunderstanding and said he was not
trying to take the child away.
Father resumed visitation in late 2011 and had three visits with the children. A
written visitation and telephone schedule was made at the end of January 2012, providing
for monitored visits of one hour on Mondays and telephone calls daily at 8:00 a.m. and
8:00 p.m. Father was sporadic in visiting. On February 16, mother and father were
arrested based on what father reported as a verbal argument. In March, the juvenile
court increased father’s monitored visits to two to three times per week for two to
three hours each visit and ordered DCFS to prepare a written schedule. In May, after
two continuances of the six-month review hearing to give the parents additional time
for compliance, the court terminated mother’s and father’s family reunification services,
finding them in only partial compliance with their case plans, and set the matter for a
section 366.26 hearing.
The September 2012 report prepared in connection with the section 366.26 hearing
reported that the maternal grandmother was the prospective adoptive parent and that the
children were doing well in her care. Father did not visit with the children over the
summer months. Father complained to the social worker in two voicemail messages
about not seeing his children. DCFS left father return messages telling him to contact the
social worker and maternal grandmother was willing to monitor his visits again. Father
did not respond to the social worker. In October the maternal grandmother was approved
as an adoptive parent. She reported that father had been stopping by the house to see the
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children. Father told Eli he had to do only what father said. The social worker left a
voicemail message for father instructing him based on these incidents not to contact the
maternal grandmother for visits. DCFS recommended termination of parental rights for
mother and father.
On October 24, father filed a section 388 petition requesting that the juvenile court
reinstate his family reunification services or, alternatively, order a legal guardianship
rather than adoption. The court ordered a hearing on the petition for December 19. In
the meantime, although DCFS and father discussed a visitation schedule, one was not
confirmed. The section 388 hearing was continued to January 24, 2013. Father had
missed two visits on December 12 and 19, but, because he had completed his court-
ordered programs, DCFS recommended granting the section 388 petition and reinstating
family reunification services. The court did just that. It ordered monitored visitation.
DCFS permitted father weekend visits to be monitored by his girlfriend, who lived with
him, or the paternal aunt.
On February 2, 2013, father picked up the children for a weekend visit from the
maternal grandmother’s home while mother was present. He did not have car seats for
the children, but took them in the car without car seats, against the advisement of the
maternal aunt and mother. Father told the social worker to keep secret the fact that he
had taken the children in the car without car seats. He also showed the social worker
naked pictures he had taken of the children during the weekend visit. The children were
showering together, and father had taken more than 100 naked pictures of them. Mother
and the maternal aunt reported that father had posted naked pictures of the children on
Facebook. Father resumed monitored visits with the children at the DCFS office and was
consistent with his visits. He participated in programs, but did not submit to about half of
his required drug and alcohol testing.
DCFS liberalized father’s visits to unmonitored in July 2013. Father often showed
up late for the exchange of the children with the maternal grandmother, and the exchange
place was changed from the maternal grandmother’s home to a local police station.
When father was late for an exchange at the police station on one occasion, he went to the
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maternal grandmother’s home. DCFS received a referral that father had permitted Eli to
drink beer during an unmonitored weekend visit. Eli said he had drunk beer at a party.
Father’s girlfriend stopped living with him around October 2013, and father reported that
he had allowed mother to have breakfast with the children during his unmonitored visit,
even though he was not permitted to monitor mother’s visits. On October 21, DCFS
again required father’s visits to be monitored.
After several continuances, father’s six-month review hearing was held on
January 30, 2014. Father did not attend. The children’s counsel as well as mother’s
counsel recommended termination of father’s reinstated family reunification services,
which had been in effect for one year. The juvenile court terminated reunification
services. It stated, “mother and father have had a volatile, negative and toxic
relationship. Father was partially in compliance with the orders and with visits. Father
even admitted, as reflected in the last minute, that he allowed mother to have essentially
unmonitored visits which were against the court’s order. And there’s some suggestion
and allegations that father is not taking good care of the two year old [Ali]. There’s also
an allegation, which father’s not here to refute, that he allowed the four year old [Eli] or
while the four year old was under his care and custody, the four year old imbibed some
alcohol. . . . [F]ather was granted [family reunification] pursuant to 388. And what
amounts to about 12 months time, he has not complied with the court orders. To the
extent that all he was ordered to do was random drug tests, he’s missed some random
drug tests, that might be stating it charitably. And it does appear that his judgment is
such where he’s continued to put the children in jeopardy. Not just encounters with the
mother, which has been prohibited generally, and [DCFS] does detail that lack of
judgment.” The court thus terminated father’s reinstated family reunification services
and set the matter for a section 366.26 hearing.3
The May 29 report, prepared for the section 366.26 hearing, identified the
maternal grandmother as the prospective adoptive parent and noted the children were
3
Father filed another section 388 petition in May 2014, which the juvenile court
summarily denied.
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doing well in her care. As of time of the report, the children had been in her care for
more than three years. Father had weekly monitored visits with the children at DCFS’s
office, although father canceled several scheduled visits. Father tested positive for
marijuana on April 11. DCFS recommended termination of parental rights for mother
and father and adoption as the permanent plan. At the May 29 hearing, father requested,
and received, a continuance for additional visitation of three times per week instead of
once a week, although mother’s counsel maintained that father had been permitted visits
of three times per week but was not attending all of them. An order was made for visits
of three times per week at three hours a visit.
At the continued section 366.26 hearing, on August 18, Eli, who was then almost
six years old, testified that he played sports with father during their visits. He would be
“sad” if he were not able to visit with father and “really sad” if his dad were not his dad
anymore. He felt “really, really, really, really, really[] sad” when his visits with father
ended. Eli had arranged for father to attend his kindergarten graduation ceremony.
He would be “happy” if he could live with the maternal grandmother and still visit with
father. He did not understand the meaning of adoption. Father testified about his visits
with the children and said that he had continuously requested more visitation. He had not
been able to secure visits of three times a week. He acknowledged that his visits reverted
back to monitored, even though they had been liberalized to unmonitored at some point
during the proceedings. The maternal grandmother testified that father visited with the
children for one hour once a week at the DCFS office but had not visited in the past
month. During the last visit that she monitored, she said father played with the children.
She testified that the occasions the children had visited with father at his house “the kids
when they came back had a different attitude. They came back dirty. They came back
hungry. There’s nobody that can be—let’s say for instance [father’s] attitude is very
different, and he makes problems.” The children had been in maternal grandmother’s
care for more than three years, and she was willing to adopt them. Although not what she
wanted, she would allow the children to visit with father for “the good of the kids.” She
also would allow contact with mother.
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DCFS, mother’s counsel and the children’s counsel all argued for terminating
parental rights and proceeding with adoption by the maternal grandmother. Father
argued against terminating his parental rights based on the parent-child relationship
exception to termination. The juvenile court found that the exception did not apply and
terminated mother’s and father’s parental rights.
Addressing father, the court stated, “The court finds that the arguments made by
county counsel, minors’ counsel, mother’s counsel were more compelling in this case.
The father has had—been—clearly the mother and father have had a volatile, a negative,
somewhat toxic relationship which the father’s indicated he was hoping to remedy, but
that is just a part of the history here. Mother concedes the issue of terminating parental
rights. So I’ll address the issue more as to father as opposed to mother. But during the
pendency of this proceeding[,] which was based on a petition that was filed on February
14, 2011, the history is such where father was in partial compliance with the court’s
orders and visits for a period of time. There was some allegation that he even allowed
[Eli] to consume alcohol. He allowed mother when the children were in his care to have
unmonitored visits. There were issues of father not enrolling in a drug counseling
program. There was some issues of father in the proper care he was taking of the then
two-year old who was soiling herself. Those are some of the atmospherics. The
allegations involve general neglect, emotional abuse, domestic violence, and drug
abuse—some of this of course on mother’s side. Father was granted family reunification
services per a 388 earlier on, . . . [a]nd the argument that county counsel put forward then
was that he continued to put the children in jeopardy with his encounters with the
mother.”
The juvenile court continued, “father . . . has had opportunities, and he hasn’t
adequately availed himself of those opportunities. I find that based on what I’ve heard
about father’s visits that he has been a friendly father. He’s been a friendly playmate
with the children. I don’t find that the father’s met the exception . . . . Father’s parental
role appears to be absent. . . . I do find that it’s in the best interest of these minors to lead
to the kind of permanency and finality that a 26 proceeding requires. I do grant that the
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minors do have a relationship with this father, and everyone’s conceded that, but it’s not
clear that the minors will benefit by continuing that relationship. The father may, very
well will, but it’s not clear to me at this age that the minors will given that they have been
in their present placement for nearly four years; for the youngest child almost the entirety
of her years. Father’s contact has to be meaningful contact and has to be meaningful
contact with someone who’s standing in the parental role . . . . The contact must be
frequent and of high-quality and not the parent as a play partner. These minors do need
permanence. . . . I don’t find that the father has fulfilled his parental role. I do not find
that he was fulfilling his parental role when he had unmonitored visits. In fact, his visits
were reverted back to monitored as a result. . . . I do feel that father hasn’t met the high
burden. The visits do confer some benefit. He may have a positive relationship with his
children, but the incidental benefit and what benefit inures to him is not what has to
motivate this court. What has to motivate this court is what’s in the best interest of the
children, and I weigh benefits of permanency and finality for the minors. And I find that
these minors do deserve the stability which they do appear to have with the prospective
adoptive parent[].”
DISCUSSION
“At a hearing under section 366.26, the [juvenile] court must select and implement
a permanent plan for a dependent child.” (In re K.P. (2012) 203 Cal. App. 4th 614, 620.)
The express purpose of a section 366.26 hearing is “to provide stable, permanent homes
for [dependent] children.” (§ 366.26, subd. (b).) “Where there is no probability of
reunification with a parent, adoption is the preferred permanent plan. [Citation.]” (In re
K.P., at p. 620.) “If the court determines . . . , by a clear and convincing standard, that it
is likely the child will be adopted, the court shall terminate parental rights and order the
child placed for adoption. . . . A finding . . . that the court has continued to remove the
child from the custody of the parent . . . and has terminated reunification services[] shall
constitute a sufficient basis for termination of parental rights. Under these circumstances,
the court shall terminate parental rights unless [a statutory exception to termination
applies].” (§ 366.26, subd. (c)(1); see In re K.P., at p. 620 [“in the absence of evidence
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that termination of parental rights would be detrimental to the child under statutorily
specified exceptions [citations], the juvenile court ‘shall terminate parental rights’”].)
The question in this case is not adoptability but rather whether father
satisfied the parent-child relationship exception to termination in section 366.26,
subdivision (c)(1)(B)(i), which requires that he prove that he has “maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship.” (See In re Derek W. (1999) 73 Cal. App. 4th 823, 826 [“parent has the
burden to show that the statutory exception applies”].) The “benefit” prong of the
exception, “[i]n the context of the dependency scheme prescribed by the Legislature,”
concerns whether “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.) It also requires
a significant relationship that rises above incidental affection and care. “Interaction
between natural parent and child will always confer some incidental benefit to the child.
The significant attachment from child to parent results from the adult’s attention to
the child’s need for physical care, nourishment, comfort, affection and stimulation.
[Citation.] The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court finds regular
visits and contact have continued or developed a significant, positive, emotional
attachment from child to parent.” (Ibid.)
Frequent and loving contact between a child and parent is not sufficient, by itself,
to establish the significant parent-child relationship required by the exception. (In re
Beatrice M. (1994) 29 Cal. App. 4th 1411, 1418-1419; see, e.g., In re Cliffton B. (2000)
81 Cal. App. 4th 415, 424-425 [“‘warm affectionate relationship’” between father and
son, where son called father “daddy,” did not outweigh potential benefit of adoption];
In re Derek W., supra, 73 Cal.App.4th at p. 827 [“emotional bond” and enjoyable visits
between father and son insufficient when relationship bore “no resemblance to the sort
of consistent, daily nurturing that marks a parental relationship”].) In other words,
“a parental relationship is necessary for the exception to apply, not merely a friendly or
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familiar one. [Citations.]” (In re Jasmine D. (2000) 78 Cal. App. 4th 1339, 1350; see also
In re Andrea R. (1999) 75 Cal. App. 4th 1093, 1108 [“parents must show that they occupy
‘a parental role’ in the child’s life,” not only “‘frequent and loving contact,’” “an
emotional bond with the child, or that the parents and child find their visits pleasant”].)
“‘[B]ecause 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.’ [Citation.]” (In re. K.P., supra, 203 Cal. App. 4th 614, 621.)
A review of the case facts demonstrates that father did not establish that he had a
parental relationship with his son based on consistent visitation such that the parent-child
relationship exception to termination would apply. The dependency proceedings were
quite lengthy. During some of the time, father maintained regular contact with Eli; other
times, however, father did not. Father did not visit with the child even in the month
before the section 366.26 hearing, despite having opportunity to do so. Moreover,
although Eli enjoyed spending time with father and would be sad if he did not, no
evidence showed that father occupied a parental role in Eli’s life. They played sports
together during visits, and Eli arranged for father to attend his kindergarten graduation
ceremony, but father did not care for Eli in a parental capacity. On the contrary, when
father was granted liberalized visits with Eli and able to take him for the weekend,
he permitted Eli to be driven without a car seat and to have beer and allowed an
unmonitored visit with mother, despite the volatile relationship between mother and
father, acts which led again to more restricted visits. Father also testified positive for
marijuana in the period before the section 366.26 hearing, although he knew he was
being monitored, and was unable to use the time during which he was afforded further
reunification services to establish a parental bond with Eli. Unlike the case of In re
Amber M. (2002) 103 Cal. App. 4th 681, 690-691, on which father relies, in which the
evidence supported a parental relationship between mother and the children based on
their primary attachment with her and on a psychological bonding study and one of the
children’s therapists, the facts here do not show a parental bond between father and Eli,
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and Eli’s therapist found Eli was doing well in the care of the maternal grandmother,
where he had lived for more than three of his almost six years, and “‘could not be in a
better place.’” The juvenile court thus did not err by terminating father’s parental rights
over Eli.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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