In re Gabriel D. CA2/6 ( 2013 )

Filed 12/18/13 In re Gabriel D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
In re GABRIEL D., DESTINY D., and 2d Juv. No. B247942
XAVIER D., Persons Coming Under the (Super. Ct. No. J068018)
Juvenile Court Law. (Super. Ct. No. J068019)
(Super. Ct. No. J068020)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
JIMMY D. and DANIELLE D.,
Defendants and Appellants.
Jimmy D. (father) and Danielle D. (mother) appeal from a March 13, 2013
order terminating their parental rights to Xavier D., Destiny D., and Gabriel D. and
freeing the children for adoption. (Welf. & Inst. Code, § 366.26.)1 Appellants contend
that the beneficial parent-child and sibling relationship exceptions bar the children's
adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm.
Facts and Procedural History
On November 8, 2010 Ventura County Human Services Agency (HSA)
filed a dependency petition for failure to protect Xavier D. (age 4), Destiny D. (age 2),
and Gabriel D. (age 1) because appellants were using methamphetamine and neglecting
1
All statutory references are to the Welfare & Institutions Code.
1
the children who had head lice and sleeping on mattresses covered with mold and urine.
(§ 300, subd. (b).) The house had broken windows, was filled with trash and dirty
clothes, and had cockroaches on the walls. Appellants could not afford natural gas for
heating and cooking and the children had no food.2
At the December 9, 2010 jurisdiction/disposition hearing, the trial court
sustained the petition and ordered home care and family maintenance services. On
January 31, 2011, HSA reported that appellants were not returning phone calls and had
not enrolled in outpatient drug treatment or parenting classes. The home was dirty and
messy and still had no gas service for cooking, heating or bathing. Appellants' drug use
and neglect had a toll on the children who suffered significant behavioral problems.
Xavier was prone to hitting, screaming, crying, and temper tantrums. Destiny and
Gabriel engaged in similar negative behaviors.
At the May 23, 2011 review hearing, the trial court continued services even
though appellants were minimally participating in the case plan. Father tested positive
for methamphetamine and skipped three tests. Mother failed four drug tests and failed to
test on four other occasions. When the case worker visited the home, the children were
unsupervised, running around, throwing things, and screaming and fighting.
On June 21, 2011, a section 387 supplemental petition was filed to remove
the children because appellants were using drugs and neglecting the needs of the children.
When HSA detained the children, appellants became enraged and yelled at the social
worker and sheriff's deputies in front of the children. The half-siblings cried hysterically,
refused to get into the van, and tried to run away. Half-sibling Jessie V. (age 13) climbed
a tree and threatened to hurt himself as appellants yelled and screamed. The half-siblings
were placed with the maternal aunt (Nickie Perez) who reported that father was always a
2
The children's older half-siblings, Armando R., Alexis R., Jessie V., and Miranda V.,
were also detained. HSA reported that the Jessie's and Miranda's alleged father (Jesse V.)
was in prison and had a criminal record for making terrorist threats, corporal injury to a
spouse, dissuading a witness, and being under the influence of a controlled substance.
Armando's and Alexis's alleged father was reported dead, a murder victim.
2
problem and verbally abusive. Perez stated that mother was not willing to spend time
with the children and "always puts [her] husband in front of her children." The social
worker agreed and reported that mother "continues to focus her attention on the father
and not her children. . . . [M]other made it very clear that she will support [father] and
stand behind him all the way."
At the section 387 detention hearing on June 22, 2011, appellants appeared
in court and tested positive for amphetamine use. The trial court reprimanded appellants
for causing a scene in front of the children. After the hearing, mother was arrested for
being under the influence of a controlled substance and entered a drug diversion program.
At the July 18, 2011 jurisdiction/disposition hearing, the trial court
sustained the section 387 supplemental petition and placed Xavier, Gabrielle, and Destiny
in foster care. Destiny had to be moved to a different home because she was defiant and
sexually acting out with Xavier. Although appellants maintained regular visitation, the
children regressed when visitation was liberalized.3 The children misbehaved, engaged
in angry outbursts, and used foul language.
After mother completed an outpatient drug treatment program and
counseling, appellants' financial situation deteriorated. Appellants were unemployed, lost
their housing, and received food stamps. Mother complained that father was struggling
with his substance abuse problem and not helping with the children. The case worker
3
When visitation changed from supervised to monitored visits, Destiny had a major
breakdown, kicking and biting HSA Field Base Case Aide Shantelle Young. Destiny
yelled "I hate you" and called her a "bitch" several times. Growling like an animal,
Destiny verbally abused Xavier and Gabrielle and cried all the way back to her foster
home. On another occasion, Destiny took a little boy by the hand, cornered him, and
kissed the boy on the mouth. When the foster mother said that it was inappropriate,
Destiny replied, "No, it is ok! My Mommy said it was ok!" Destiny rarely talked about
appellants between visits and called her foster parents "Mommy and Daddy." After
visits, Destiny would tell Shantelle Young "to drive faster" because "I want to go home
and eat dinner with my mommy and daddy now." Like Destiny, Gabriel was unruly
during visits and excited about returning home to his foster parents.
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reported that it was "chaos in the home" and appellants "constantly toss the children back
and forth to each other."
At the 12 month review hearing on August 22, 2012, the trial court
terminated services and set the matter for a contested permanent placement hearing. (§
366.26.) The trial court found that father had not completed counseling or a substance
abuse program and that mother lacked insight as to why her behaviors were detrimental
to the children. The maternal aunt filed a section 388 petition for the childrens' long-term
foster care, and appellants filed a section 388 petition to reinstate services and for long
term foster care. The trial court denied the petitions for lack of a prima facie showing of
change of circumstances.
At the contested 366.26 hearing, evidence was received that the children
had made significant progress and were bonded to their foster families. Social Worker
Jennifer Kamen testified that the foster parents were prepared to adopt the children and
committed to addressing the children's behavioral problems. When asked if the children
would suffer harm if parental rights were terminated, Kamen opined that the children
would experience some sadness but, in recent months, had developed even stronger
relationships with their foster parents, referring to them as "Mom" and "Dad." The trial
court found that the children would not benefit from continuing the parent-child
relationship and that the sibling relationship exception did not bar adoption.
Standard of Review
We review for substantial evidence and determine whether the trial court
abused its discretion in finding that the parent-child and sibling exceptions were not
significant enough to compel a permanent plan other than adoption. (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315.) "Because a parent's claim to . . . an exception
[to termination of parental rights] is evaluated in light of the Legislature's preference for
adoption, it is only in exceptional circumstances that a court will chose a permanent plan
other than adoption. [Citation.]" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
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Beneficial Parent-Child Relationship
To establish the parent-child exception, appellants must show they
maintained regular contact and visitation and the children would benefit from continuing
the relationship. (§ 366.26, subd. (c)(1)(B)(i).) The existence of a beneficial relationship
is determined by the age of the child, the portion of the child's life spent in parental
custody, the quality of the interaction between parent and child, and the child's particular
needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) The parent must show "more
than frequent and loving contact, an emotional bond with the child, or pleasant visits.
[Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Appellants' visits were frequent but lacked a meaningful parental
relationship. (Ibid.) Before the children were removed, appellants used drugs and
sequestered the children in a locked bedroom. It had a profound effect on the children
who engaged in sexually inappropriate behavior with bouts of screaming, hitting, cursing,
and temper tantrums. Xavier suffered from nightmares and hallucinations, was
physically aggressive, and tried to strangle a child at school. Destiny had problems lying
and engaged in highly disruptive behavior.
Appellants did not progress beyond supervised visits and remained aloof
from the children's education and psychological and medical needs. Doctor Tina
Goodman-Brown, a clinical psychologist, reported that mother was overwhelmed by the
children's behaviors and unable to stay calm when the children acted out.
The maternal aunt reported that the children act up when in appellants'
presence and that appellants did not set boundaries or provide parental supervision. In a
video posted on Facebook, the children are out of control and hitting one another as
mother dances about, oblivious to the fact that Destiny is attempting to run away.
Unsupervised visits were tried but proved to be detrimental to the children. Xavier was
angry and physically aggressive, threatened to kill himself and others, and engaged in
sexual acting out behaviors. The foster mother reported that it took "Xavier a couple of
5
days to settle down and return to his home routine after the unsupervised visits with his
mother."
The trial court found that appellants "are more concerned about how they
are perceived than dealing with the kids' issues. . . . [S]exual acting out, with children
this young is really troubling . . . . I just can't imagine why I don't . . . see more concern
expressed by the parents. I keep saying parents. Frankly, I see none from dad. No
concern and no ability . . . to parent these children. Mom seems to have some ability, but
she doesn't seem to quite get it. . . ."
Appellants speculate that the children suffer from separation anxiety but
offered no evidence to support this claim. At trial, appellants denied the children had any
behavioral problems or blamed it on the foster parents. Mother was in denial and did not
ask about the childrens' medical and education needs or want to know who was providing
services. When the social worker told mother that the older half-sibling (Jessie V.) had a
heart problem, mother changed the subject and complained that father needed a toenail
removed. The social worker testified that mother was more concerned about her
relationship with father and "pretty much . . . chooses him over them." (RT 101)~ Upon
receiving a $2,400 child support refund, mother spent the money at shopping malls, on
tattoos, and rented a car and disappeared with father for several days.4
This behavior was consistent with appellants' child welfare history which
dates back to 2000 and includes 28 referrals for child abuse and neglect, sexual abuse,
corporal punishment, domestic violence, substance abuse and drug overdoses, gang
members in and out of the home buying and selling drugs, school truancy, maintaining a
home with no water service or food, runaway children, self-mutilation by a sexually
abused daughter, and children living in a home infested with cockroaches and head lice.
4
It was money ill spent. Appellants were unemployed and homeless and had outstanding
fines and assessments for driving without a current car registration ($359.62),
transporting a child without a child passenger restraint ($662), driving without a license
($576.70), transporting a child without a child passenger restraint ($804.10), failure to
use a child passenger seat on another occasion ($1,496.58), and drug diversion fees.
6
Appellants argue that the children should be placed in a guardianship but
that would deprive the children of the permanency and stability of a permanent adoptive
home they so badly need. There is no evidence that severing "the natural parent-child
relationship would deprive the child[ren] of a substantial positive emotional attachment
such that the child[ren] would be greatly harmed. [Citations.]" (In re Angel B. (2002) 97
Cal.App.4th 454, 466.)
Sibling Relationship Exception
Appellants' reliance on the sibling relationship exception is without merit.
To establish the sibling exception appellants must show a significant sibling relationship,
the termination of which would be detrimental to the child. (In re Celine R. (2003) 31
Cal.4th 45, 54.) Appellants argue that the older half-siblings will be traumatized if the
children are adopted. But that is not the test. The question is whether adoption would be
detrimental to Xavier, Destiny, and Gabriel, not someone else. (Id., at pp. 54-55.) The
sibling relationship exception " 'only applies when the juvenile court determines that
there is a "compelling reason" for concluding that the termination of parental rights
would be "detrimental" to the child due to "substantial interference" with a sibling
relationship.' [Citation.]" (Id., at p. 61.)
The half-siblings are in their teens and live with the maternal aunt. Xavier,
Destiny, and Gabriel are significantly younger and have little contact with them. Xavier
has not seen the half-siblings since August 2012 and did not ask about visits. Destiny
rarely mentioned the half-siblings. Gabriel was one year old when he was removed and
knows little about the half-siblings. On one occasion, the foster mother and Gabrielle ran
into half-sibling Alexis at the grocery store but Gabrielle did not recognize Alexis.
The foster mother confirmed that Xavier and Gabriel had not visited the
half-siblings in months and exhibited behavioral problems at the last sibling visit. In
May and July 2012, the maternal aunt reported that the half-siblings had no interest in
visiting Xavier, Gabriel, and Destiny. When the social worker conducted home visits, the
half-siblings did not bring up visitation unless the social worker discussed it. The trial
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court concluded that the children's long-term emotional interests would be better served
by the permanency of adoption. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1013.)
Appellants complain that the trial court failed to make express findings that
severance of the sibling relationship would be detrimental to the children. Those findings
may be implied where, as here, the record shows that termination of parental rights is in
the best interests of the child. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793; see
e.g., In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555 ["ample" evidence supported
implied finding and result was "obvious" from the record]; In re Corienna G. (1989) 213
Cal.App.3d 73, 83-84 [substantial evidence supported implied finding].)
Xavier, Gabrielle, and Destiny were young when the dependency petition
was filed, lived briefly with the half-siblings, and have lived in foster homes for 20
months. There is no mention in the reports of a close relationship with the half-siblings,
but that is no surprise. Before the children were removed, appellants often locked
themselves up in a bedroom with the children while they did drugs and had sex. The
maternal aunt (Perez) reported that the children did not have much of a relationship with
the older siblings because appellants "kept the younger children pretty much in the crib
all day locked up in a room with them so they wouldn't have to deal with them."
"Many siblings have a relationship with each other, but would not suffer
detriment if that relationship ended." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
That is the case here. The trial court balanced the benefit of maintaining the sibling
relationship, which would leave the children in a tenuous guardianship or foster home
placement, against the sense of security and belonging adoption would confer. (Id., at
p. 191.) It was "a 'quintessentially' discretionary decision," and by no means a close call.
(In re Bailey J.¸ supra, 189 Cal.App.4th at p. 1315.)
Appellants argue that the trial court injected an improper factor into the
weighing process in finding that the prospective adoptive parents are amenable to sibling
contact in the future. A trial court may not rely on "an unenforceable promise of future
visitation by the child's prospective adoptive parents.' [Citation.]" (In re C.B. (2010) 190
8
Cal.App.4th 102, 128.) Our Supreme Court, however, has noted: "When appropriate, the
court can encourage the adoptive parents to agree to visits among the siblings, although . .
. it cannot require them to do so. [Citations.]" (In re Celine R., supra, 31 Cal.4th at p.
55.)
Adoption is the preferred permanent plan and was clearly established by the
HSA reports and the testimony of the social workers, the foster mothers, and the maternal
aunt. "[W]here the issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.' [Citation.] [¶] . . . It is not our function to retry the
case." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
The judgment (order terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Matthew J. Thue, under appointment by the Court of Appeal, for Appellant
Father.
Cristina Gabriellidis , under appointment by the Court of Appeal, for
Appellant Mother
LeRoy Smith, County Counsel, County of Ventura and Alison Harris,
Assistant County Counsel, for Rspondent.
10