In re Valerie R. CA2/2 ( 2022 )

Filed 11/23/22 In re Valerie R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re VALERIE R., a Person B320739
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 19CCJP05652A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JONATHAN R.,
Defendant and Appellant.
APPEAL from the order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
Ernesto Paz Rey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
******
Jonathan R. (father) challenges the juvenile court’s order
terminating his parental rights over his daughter Valerie R.,
claiming that the court relied on an improper factor in rejecting
his request to apply the beneficial parent-child relationship
exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)).1 We
conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Valerie was born in 2012 to Jasmine G. (mother) and
father.
In 2013, father dragged mother outside of the family house,
inflicted red marks on her face, and threatened to kill mother and
take Valerie away from her; Valerie, then a toddler, was present
for the incident. The juvenile court exerted dependency
jurisdiction over Valerie and, in 2015, terminated jurisdiction
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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with an order placing Valerie in mother’s sole physical and legal
custody.
In 2016, the juvenile court again exerted dependency
jurisdiction over Valerie due to mother’s inability to provide care
for Valerie when the father of Valerie’s half siblings was using
drugs in Valerie’s presence. In February 2019, the juvenile court
terminated jurisdiction with an order placing Valerie in father’s
sole physical and legal custody.
On August 26, 2019, father became upset with Valerie
because she was eating too slowly and struck her with an open
hand twice on the mouth and once on her arm. The blows cut her
upper lip and bruised her arm. Father admitted that he would
sometimes use physical discipline, but denied that he struck her
on this occasion. Father was convicted of battery for the incident,
and placed on three years of summary probation.
II. Procedural Background
On August 30, 2019, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Valerie. As amended, the petition alleged that father’s
“inappropriate physical discipline caused” Valerie “unreasonable
pain” and placed her at substantial “risk” of serious physical
harm, thereby rendering jurisdiction appropriate under
subdivision (b)(1) of section 300.
Immediately after the petition was filed, the juvenile court
detained Valerie from father and placed her with a foster parent.2
Two months later, in October 2019, the juvenile court placed her
with the paternal aunt and uncle.
2 The court also detained—and later removed—Valerie from
mother’s custody. However, mother is not a party to this appeal.
3
Prior to the adjudication of the petition, father was
deported to El Salvador. However, he kept in contact with
Valerie on video chat or called her every day. Valerie had a
“strong bond” with father.
The juvenile court held the dispositional hearing in mid-
October 2020, and sustained the amended petition.
In late October 2020, father attempted to illegally reenter
the United States from Mexico, and was arrested and placed in
federal custody. He ended up pleading to a federal charge of
illegal reentry and was sentenced to 21 months in federal
custody, to be followed by deportation back to El Salvador.
In December 2020, the juvenile court held the dispositional
hearing and removed Valerie from father’s custody. The court
ordered the Department to provide father with reunification
services, and ordered father—as part of a case plan of those
services—to complete an anger management course, to attend
individual counseling to address case issues, and to attend a
parenting class. The court also allowed for monitored visitation.
Although father’s incarceration prevented him from
completing any of the programs making up his case plan, he
wrote Valerie letters and called her on an almost daily basis.
At the six-month status review hearing held in July 2021,
the juvenile court terminated reunification services and ordered
the matter set for a permanency planning hearing.
Over the next year, father continued to contact Valerie on a
near daily basis and to send money. By that time, Valerie had
been living with the paternal aunt and uncle for nearly three
years (since October 2019) and had developed a “strong and
loving bond” with them. Valerie indicated a desire to live with
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them and be adopted by them, and they expressed their desire to
adopt Valerie.
In April 2022, father was released from federal custody and
deported to El Salvador. The likelihood of father lawfully
reentering the country was slim.
The juvenile court held the permanency planning meeting
on May 24, 2022. Father urged the court to place Valerie in a
legal guardianship rather than terminate his parental rights due
to the parent-child bond he has with Valerie. Both Valerie’s
attorney and the Department urged the court to terminate
father’s parental rights. Valerie’s attorney conceded that father
and Valerie shared a “parental bond,” but urged that this bond
was “overcome” by her interest in being adopted by her paternal
aunt and uncle. Valerie’s attorney also noted that Valerie knows
that her aunt and uncle would “allow her to maintain connection
with her father.” The Department made a similar argument
regarding the inapplicability of the beneficial parent-child
relationship exception, but specifically “ask[ed] the court not to
consider the fact that the paternal aunt is willing to continue
[Valerie’s] relationship [with father by allowing continued
visitation]” because “under the law, the court has to assume that
the relationship is terminated regardless of the caregiver’s
intentions.” The court found that the beneficial child-parent
exception did not apply. The court acknowledged that “father has
been making routine regular phone calls to Valerie,” that she
“seems to love him,” and that “they do have a positive
relationship,” but “question[ed]” “whether [that relationship is] so
substantial that it would outweigh any of the benefits of Valerie
having the permanency and stability in the home that she’s lived
in since 2019.” Given Valerie’s “understand[ing]” of adoption and
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her desire to remain with her paternal aunt and uncle, as well as
the “trauma” Valerie “has gone through . . . in being moved to
different homes based on the dependency history of the parents,”
the court found that “any benefit accruing to the child from [her]
relationship [with father] is outweighed by the physical and
emotional benefit [she] will receive through permanency and
stability of adoption.” The court then ordered father’s parental
rights terminated.
Father filed this timely appeal.
DISCUSSION
Father argues that he is entitled to a new permanency
planning hearing. Specifically, he argues that (1) Valerie’s
attorney mentioned that the paternal aunt and uncle would allow
Valerie to continue visiting father after adoption, (2) this is an
improper factor to consider when examining the beneficial
parent-child relationship exception, and (3) the court’s ruling
thus “[s]eemingly” relies on an improper factor, thereby entitling
father to automatic reversal. Because this argument inverts the
usual rules of appellate review, we reject it.
Once a juvenile court has terminated reunification services
or a parent is deemed ineligible for them at the outset, the court
“shall terminate parental rights” if it finds, “‘by clear and
convincing evidence,’” “that it is likely the child will be adopted”
within a reasonable time. (§ 366.26, subds. (a) & (c)(1); Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) Thus, a
juvenile court must terminate parental rights and order adoption
unless the parent opposing termination proves that one of six
statutory exceptions applies. (§ 366.26, subd. (c)(1) & (c)(1)(B); In
re I.W. (2009) 180 Cal.App.4th 1517, 1527, disapproved on other
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grounds as stated in Conservatorship of O.B. (2020) 9 Cal.5th
989, 1010, fn. 7).
One of the six exceptions is the beneficial parent-child
relationship exception. Because this exception “applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adopted home,
would be harmful for the child,” a court will find the exception
applicable only if the parent “establish[es]” “(1) regular visitation
and contact, and (2) a relationship, the continuation of which
would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (In re Caden C. (2021)
11 Cal.5th 614, 630, 631, 635 (Caden C.), italics omitted.) In
assessing whether the parent has engaged in regular visitation
and contact, a court looks to how the parent’s actual visits
measure up against the extent of visitation permitted by the
juvenile court's orders (id. at pp. 632, 636); to satisfy this
element, contact must be consistent; “sporadic” visits, or
visitation with “significant lapses,” are not enough. (In re A.G.
(2020) 58 Cal.App.5th 973, 994-995; In re I.R. (2014) 226
Cal.App.4th 201, 212.) In assessing whether the child would
benefit from a continued relationship with the parent, the parent
must show “that the child has a substantial, positive, emotional
attachment to the parent” in light of several factors, such as the
“‘[(1)] [t]he age of the child, [(2)] the portion of the child’s life
spent in the parent’s custody, [(3)] the “positive” or “negative”
effect of the interaction between parent and child, and [(4)] the
child’s particular needs.’” (Caden C., at pp. 632, 636, quoting In
re Autumn H. (1994) 27 Cal.App.4th 567, 576.) In assessing
whether the termination of parental rights would be detrimental
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to the child “when balanced against the countervailing benefit of
a new, adoptive home,” a court is to examine “how the child
would be affected by losing the parental relationship” entirely.
(Caden C., at pp. 633, 636-637.) This is necessarily a “subtle,
case-specific inquiry.” (Ibid.) We review a juvenile court’s
findings regarding the first two elements (visitation and
relationship) for substantial evidence, and its ruling regarding
the third element (balancing of detriment versus benefit) for an
abuse of discretion. (Id. at pp. 639-641.)
Father does not attack the juvenile court’s discretionary
decision not to apply the exception. Instead, he argues that the
court relied upon an impermissible factor. Father is correct that
a court’s reliance on an “impermissible factor” is an error of law
that also constitutes an abuse of discretion. (People v. Patterson
(2017) 2 Cal.5th 885, 894.) Father is also correct that it is an
error of law for a juvenile court—when considering whether to
apply the beneficial parent-child relationship exception—to give
any weight to “an unenforceable promise of future visitation by
the child’s prospective adoptive parents.” (In re S.B. (2008) 164
Cal.App.4th 289, 300 (S.B.); In re C.B. (2010) 190 Cal.App.4th
102, 127-129 (C.B.).) But father is incorrect that we should
presume—by virtue of the fact that Valerie’s attorney mentioned
this impermissible factor—that the juvenile court factored it into
its analysis.3 Indeed, the law is 180 degrees to the contrary.
Courts are presumed to “‘know[] and appl[y] the correct statutory
3 For the same reason, father is incorrect that we must
reverse because it “cannot be determined . . . whether the
juvenile court considered factors that Caden C. has held are
forbidden.” Courts are not required to list, in every case, all of
the impermissible things they did not consider.
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and case law’” absent “evidence to the contrary” (People v.
Thomas (2011) 52 Cal.4th 336, 361), and here there was none:
Unlike the courts in S.B. and C.B., the juvenile court in this case
did not indicate it relied in any way on the fact that the paternal
aunt and uncle were open to allowing father continued access to
Valerie. Father is asking us to infer that the court did so from its
silence on this factor, but that flips the usual presumption on its
head into a presumption that courts improperly apply the law.
What is more, this is a particularly inapt case in which to invert
the presumption because another of the parties explicitly pointed
out that “the law” precludes reliance on the impermissible factor.
If we were to accept father’s argument, we would have to reverse
in a case where one party suggested, “Hey, judge, you should
decide whether to apply this exception by using this Magic Eight
Ball” unless and until the court responded, “No, I prefer to use
the law rather than a Magic Eight Ball.” Blessedly, the law does
not countenance such a silly result. Accordingly, neither do we.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.*
BENKE
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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