In re L.P. CA4/2 ( 2014 )

Filed 4/22/14 In re L.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 L.P., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E059789
Plaintiff and Respondent, (Super.Ct.No. J240341)
v. OPINION
E.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Jasmine J. Turner-Bond, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
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I. INTRODUCTION
E.P. (father) appeals from the termination of his parental rights as to L.P. (born in
March 2004) under Welfare and Institutions Code1 section 366.26.2 Father contends the
trial court erred in failing to apply the beneficial parental relationship exception to
adoption. We find substantial evidence supports the juvenile court’s ruling, and we
affirm.
II. FACTS AND PROCEDURAL BACKGROUND
San Bernardino County Children and Family Services (CFS) filed a juvenile
dependency petition in August 2011, alleging that L.P. came within section 300,
subdivisions (b) (failure to protect) and (g) (no provision for support). At the time of the
petition, mother and father had been arrested on child endangerment charges. The
petition alleged that mother and father had substance abuse problems—mother overused
“prescription medication,” while father overused “sleeping aids.” The petition further
alleged that mother and father had failed to protect L.P. by leaving rifles and ammunition
unlocked and accessible to L.P. in the home. The petition also alleged that father had
engaged in domestic violence in the presence of L.P., and that mother had failed to
protect L.P. from exposure to domestic violence.
1 All further statutory references are to the Welfare and Institutions Code.
The notice of appeal indicates that father also appeals from the juvenile court’s
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denial of his section 388 petition, which was heard by the juvenile court on the same date
as the section 366.26 hearing. In his briefing on appeal, however, father has articulated
no claim of error with respect to the juvenile court’s denial of his section 388 petition,
instead exclusively focusing on the termination of his parental rights and the juvenile
court’s determination with respect to the beneficial parental relationship exception.
2
The detention report stated that L.P. had called his maternal grandmother, C.H.,
because mother was on the floor and could not get up, father was sleeping all day in his
room, and L.P. had not eaten anything except a stale cinnamon roll since returning to his
parents from a visit at C.H.’s home the day before. L.P. asked C.H. if he could “come
back with her to stay.” C.H. called the police, who responded and found mother under
the influence of an unknown drug, and father drunk or under the influence of an unknown
drug. When asked whether there were any weapons in the home, father responded “No,”
but L.P. showed police where there were three rifles and a box of shells in a place
accessible to L.P. Both parents were arrested on suspicion of child endangerment. After
being taken into temporary custody of CFS due to exigent circumstances, L.P. was placed
in the care of C.H.
At the detention hearing on August 22, 2011, the court found a prima facie case
had been established for detention, and found that C.H. was an appropriate temporary
caregiver for L.P.
CFS filed a jurisdiction/disposition report in September 2011. The report stated
that L.P. was doing well in the home of C.H., and that he had not asked to go home to his
parents. The report acknowledged that mother and father appeared to love their son and
want to care for him, and that father was able to provide for the family financially. The
report also expressed concerns, however, about the parents’ level of functioning and
perception of their needs. Neither mother nor father believed or was willing to
acknowledge the problems in the home observed by CFS that led to the dependency.
3
At the jurisdiction/disposition hearing in October 2011, the juvenile court
dismissed the allegations regarding no provision for support (section 300, subd. (g)) at
the request of CFS, but found the allegations of failure to protect (section 300, subd. (b))
true as alleged. The court removed L.P. from the custody of his parents, placed him with
C.H., and ordered reunification services, including weekly supervised visitation, for both
parents.
The CFS six-month status review report filed in April 2012 recommended family
reunification services to both parents continue, and L.P. to remain placed with C.H. The
report noted that mother had “been motivated and complied with almost all of the
components of her case plan,” but father had “not been able to follow through with all
the components of his case plan.” The report elaborated that father found it “challenging
to comply” with his case plan due to his work schedule. Moreover, father continued to
deny that he needed substance abuse treatment, justifying his positive drug tests as the
result of medicine he was taking under doctor’s supervision, and his “no-show” testing
results as a product of his work schedule. Father had been terminated from a counseling
program for attending a session while severely impaired and apparently under the
influence of drugs or alcohol; the therapist recommended that father seek inpatient or a
higher level of care. But the social worker noted that mother’s and father’s visits with
L.P., supervised by C.H., had been “consistent and appropriate” and concluded that
“moderate” progress had been made “toward alleviating or mitigating the causes
necessitating placement.” The social worker further reported that L.P. was adjusting well
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to living in the home of C.H. At the six-month review hearing, the court ordered that
C.H.’s care of L.P. continue, and that parents receive continued reunification services.
The CFS 12-month status report filed in October 2012 recommended that family
reunification services be terminated, and that a plan for permanent placement of L.P. be
ordered—specifically, adoption by his current caregiver, C.H. The report found the
prognosis for returning L.P. to his parents to be “guarded,” in that both parents continued
to struggle with substance abuse issues, with mother entering treatment, but relapsing
twice, while father had not engaged in substance abuse treatment. The report found that
L.P. “appear[ed] to be doing great” in C.H.’s home. Parental visitation had been
consistent and appropriate, but the social worker expressed concern that father “needs to
interact and engage more with the child,” because L.P. had reported that during their
visits father “plays with [L.P.] for a few minutes and then goes inside the home and
watches TV.”
At the 12-month hearing on October 11, 2012, both parents were present and
contested the CFS report, asking the court to set the matter for long cause. The court
ordered both parents to drug test that day, further ordered parents to provide written
reports from any of their service providers they intended to have testify, and continued
the matter.
On November 8, 2012, the CFS filed additional information to the court, advising
that it was changing its recommendation, and now supported continued reunification
services for mother and father, while L.P. remained in the care of C.H. At a hearing on
the same date, CFS and the parents informed the court that they had reached an
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agreement, whereby CFS would recommend continued services, and parents would agree
to work directly with the social worker, rather than through an intermediary, and would
provide releases and any other appropriate documents to effectuate the case plan.. The
court ordered continued reunification services for both parents, and on the
recommendation of the social worker, authorized unsupervised visitation for mother.
The CFS 18-month status report, filed on February 5, 2013, recommended that
services be terminated for both parents, and a section 366.26 hearing be set to establish a
permanent plan of adoption. L.P continued to do very well in the home of C.H. The
social worker reported that mother had complied with her case plan, but CFS could not
return L.P. to mother alone, because she continued to reside with father, who had not.
Father had not complied with his substance abuse treatment, his participation in random
drug testing had been “sporadic,” and he had failed to provide the social worker with
proof of his attendance at NA/AA meetings or the name and contact information of his
sponsor. Father had informed the social worker that he was going into inpatient
substance abuse treatment for 30 days, but he apparently only stayed for three days.
Mother’s visitation had progressed to unsupervised visitations, but visits with father
remained supervised. The social worker reported that mother had stated father was
prepared to move out of the family home and stay with a friend, so that L.P. could be
returned to mother. The social worker indicated that more time was needed to assess the
situation, and promised additional information would be provided to the court at the 18-
month hearing set for February 14, 2013.
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On February 14, 2013, CFS filed additional information to the court, indicating
that it was changing its recommendation to returning L.P to mother, on the condition that
father move out of the home. CFS reported that it had received confirmation father had
entered an inpatient substance abuse treatment program, would be in treatment for a
minimum of 28 days, and father had indicated his willingness to move out and live with a
friend when he was out of treatment, so that L.P. could be returned to mother while father
completed his case plan. CFS asked for a continuance to verify that father had moved
out.
At the 18-month review hearing on February 14, 2013, father’s attorney confirmed
that father had been discharged from his inpatient program, and had moved out of the
family home. The court approved a plan to transition L.P. back to mother’s custody,
allowing L.P. to finish the school year he had begun while living with C.H., but to spend
weekends unsupervised with mother at the family home. The court continued the matter
until April 15, 2013.
On February 15, 2013, mother suddenly died; the cause of death was not known to
CFS, according to the report of her death it filed with the juvenile court on February 21,
2013.
On April 10, 2013, CFS filed a status review report recommending that a section
366.26 hearing be set to establish a permanent plan of adoption for L.P., since it was no
longer possible to implement the plan to return L.P. to mother. The report states that
father terminated inpatient drug treatment after three days, rather than the expected 30
days, without informing CFS. The report describes father as having been in contact with
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L.P. by phone daily, and visiting L.P. “when he can.” However, while L.P. was grieving
the loss of his mother, father did not attempt to increase his visitations with L.P.—to the
contrary, father went to Florida to visit his own mother.
At the April 15, 2013, review hearing, father’s counsel did not contest CFS’s
recommendation that reunification services be terminated and that father have continued
supervised visitation. The court found there was not a substantial probability that L.P.
would be returned to father within the statutory time frame, ordered continued supervised
visitation by father, and set the matter for a section 366.26 hearing.
On August 8, 2013, CFS filed a “366.26 WIC Report,” recommending that
father’s parental rights be terminated, and the permanent plan for L.P. to be adopted by
C.H. be implemented. The report notes that L.P. “continues to receive excellent care” in
C.H.’s home and that L.P. had expressed that he “wants to continue living [with C.H.]
until I am an adult.” The report states that father’s in-person visits with L.P. had been
“minimal,” consisting of occasional visits supervised by C.H., and father had only brief
phone calls with his son a few times weekly.
On September 3, 2013, father filed a section 388 petition asking that reunification
services be reinstated, based on the changed circumstance that father had “completed
substance abuse services through Loma Linda University Behavioral Medical Center.”
The CFS response to the petition notes, however, that father was uncooperative with CFS
in verifying his aftercare and had submitted no evidence of drug testing to verify his
sobriety or evidence of his participation at 12-step meetings. Moreover, the social
worker reported that, according to C.H., father had not made any effort to see L.P., with
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C.H. initiating and arranging any visits that occurred. Father’s phone calls were,
according to C.H., sporadic and lasted only a few minutes. Additionally, in July 2013,
C.H. heard through a friend that father had remarried. C.H. called father to verify the
information, and encouraged father to tell L.P. Father instead called L.P. and told him
that he planned to remarry, but had not yet done so. According to C.H., L.P. felt betrayed
that father had lied to him. When asked by the social worker, L.P. expressed a strong
desire to live with C.H. and not with father. A report by L.P.’s therapist, submitted with
the CFS response, expresses the opinion that C.H. was “doing an excellent job of
providing a loving, stable home” for L.P, and L.P. had clearly expressed that he did not
want to have any overnight visits with father. The therapist opined that adoption by C.H.
“is clearly in [L.P.’s] best interests.”
On October 7, 2013, the juvenile court heard argument on father’s section 388
petition and also held the section 366.26 hearing. Father’s counsel confirmed that the
drug treatment program father completed had been outpatient, not inpatient. Father’s
counsel also conceded that father had not visited L.P. in person very often, though he
argued that they do “talk on the phone several times a week on an almost daily basis,”
and that there had been “stretches of time” where they had spoken “several times a day.”
The juvenile court denied the section 388 petition, finding no changed circumstances
sufficient to justify altering its previous order terminating reunification services. The
court found father’s visitation had not been regular, and had not been in person. The
court acknowledged the “difficulties” in the father-son relationship noted by L.P.’s
therapist, and found that L.P.’s relationship with father was “more in the nature of . . . a
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concerned family member . . . there is definitely not a parenting role that the father is
specifically assuming.” The court therefore declined to apply the beneficial parental
relationship exception to adoption, and ordered father’s parental rights terminated.
III. DISCUSSION
Father contends that the juvenile court erred by terminating his parental rights as
to L.P. despite the existence of a beneficial parental relationship between father and L.P.
He argues that the court should have instead ordered a guardianship with C.H., and
ordered further reunification services with respect to father. We find substantial evidence
supported the juvenile court’s ruling, and therefore affirm.
At a section 366.26 hearing, the juvenile court determines a permanent plan of
care for a dependent child. (In re Casey D. (1999) 70 Cal. App. 4th 38, 50.) Adoption is
the preferred permanent plan because it is more secure and permanent than legal
guardianship or long-term foster care. (Ibid.) “Adoption must be selected as the
permanent plan for an adoptable child and parental rights terminated unless the court
finds ‘a compelling reason for determining that termination would be detrimental to the
child’” under one or more of the exceptions set forth in section 366.26, subdivision
(c)(1)(B). (In re Bailey J. (2010) 189 Cal. App. 4th 1308, 1314-1315 (Bailey J.).) One
such exception is the beneficial parental relationship exception. (§ 366.26, subd.
(c)(1)(B)(i).)
To establish the beneficial parental relationship exception to termination of
parental rights, a parent has the burden of showing “both regular visitation and contact
[with the child] and the benefit to the child in maintaining the parent-child relationship.”
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(In re Helen W. (2007) 150 Cal. App. 4th 71, 80-81; see § 366.26, subd. (c)(1)(B)(i).)
With respect to the “benefit to the child” prong of the exception, a beneficial relationship
is one that “‘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 Brandon C. (1999) 71 Cal. App. 4th 1530, 1534.) The parent has the burden of
demonstrating that “severing the natural parent/child relationship would deprive the child
of a substantial, positive emotional attachment such that the child would be greatly
harmed . . . .” (In re Autumn H. (1994) 27 Cal. App. 4th 567, 575.) The determination of
whether termination of parental rights would be detrimental to the child is a
“‘quintessentially’ discretionary decision, which calls for the juvenile court to determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and to weigh that against the benefit to the child of
adoption. [Citation.]” (Bailey J., supra, 189 Cal.App.4th at p. 1315.)
We review the juvenile court’s finding as to the applicability of the beneficial
parental relationship exception under the substantial evidence standard. (Bailey J., supra,
189 Cal.App.4th at p. 1314.) When the party with the burden of proof appeals,
contending the trier of fact erred in concluding that party failed to meet his or her burden,
the question on appeal “becomes whether the evidence compels a finding in favor of the
appellant as a matter of law.” (In re I.W. (2009) 180 Cal. App. 4th 1517, 1528.)
Accordingly, “a challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the ‘undisputed facts lead to only one
conclusion.’ [Citation.]” (Bailey J., supra, at p. 1315.)
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The record here does not compel a finding in favor of father as a matter of law.
There is substantial evidence that father’s visitation with L.P. was not regular, but rather
became more sporadic over time, and especially after mother’s death. Unlike mother,
father never demonstrated to his social workers that anything other than supervised
visitation would be appropriate, and when he did visit, he reportedly failed to interact and
engage appropriately with L.P. After mother’s death, father’s in-person visitations with
L.P. deteriorated to “minimal.” Though father insisted that he had regular telephone
contact with L.P., there was evidence to the contrary in the form of C.H.’s statements to
the social worker, and L.P.’s statements to his therapist. Thus, substantial evidence
supports the juvenile court’s determination that father failed to establish the visitation
prong of the beneficial parental relationship exception to termination of parental rights.
There is also substantial evidence in support of the juvenile court’s determination
that father had also failed to establish the benefit to the child prong of the exception.
Father presented little evidence of a parental bond with L.P., conceding that he did not
even visit L.P. in person very often; there also was evidence that what visits did occur
were initiated by C.H., not father. After mother’s death, father went to Florida to visit his
mother, rather than attempting to increase contact with L.P., to help the child through his
grief. Even accepting father’s assertion that he remained in touch with L.P. regularly by
phone, those telephone interactions between father and son were problematic, according
to L.P.’s therapist, social worker, and caregiver. Thus, substantial evidence supports the
juvenile court’s finding that the relationship between L.P. and father was not so strong a
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parent/child bond that it outweighs the benefits to L.P. that a stable, loving, permanent
home with C.H. would provide.
We conclude substantial evidence supports the juvenile court’s finding that father
did not meet his burden of demonstrating the beneficial parental relationship exception
should be applied.
IV. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
KING
J.
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