In re S.R. CA2/4

Filed 2/22/22 In re S.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 S.R., a Person Coming Under B313169
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP06480)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.R. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
Marsha Matthews, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant
and Appellant R.R.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant Maria M.
Rodrigo A. Castro-Silva, and Kim Nemoy, Assistant County Counsel,
for Plaintiff and Respondent.
INTRODUCTION
Sophie R. (born Oct. 2014) was declared a dependent of the juvenile
court in November 2018, when the court sustained a petition in which
respondent Los Angeles County Department of Children and Family Services
(DCFS) alleged that mother endangered Sophie by leaving her unattended in
a car, and that mother had a history of mental and emotional problems. In
October 2018, DCFS removed Sophie from mother’s home and placed her in
the home of her paternal great aunt and uncle. The court ordered family
reunification services for parents but terminated them two years later and
set a permanency planning hearing. At that hearing (in May 2021), it was
undisputed that the paternal aunt and uncle would likely adopt Sophie. (See
In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) Father, however,
asserted the “beneficial parental relationship exception” to termination of
parental rights. (Ibid.) The juvenile court rejected the exception and
terminated father’s parental rights, along with those of mother.
On appeal, father contends the juvenile court erred when it did not
apply the beneficial parent relationship exception. Mother raises no
independent contention of error, instead contending only that we must
reverse the termination of her parental rights if we reverse the termination of
father’s rights. We conclude that the juvenile court did not err in rejecting
the beneficial parental relationship exception. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Events Leading to the Permanency Planning Hearing
The family had an extensive history of prior referrals to DCFS. On
October 1, 2018, DCFS received a referral alleging general neglect of Sophie
by mother. At the time, father lived in Mexico, worked in San Diego, and
2
stayed at mother’s home only on the weekends. Sophie was detained and
placed with paternal great aunt and uncle. On October 9, 2018, DCFS filed a
dependency petition on behalf of Sophie.
On October 10, 2018, the juvenile court found a prima facie case for
detaining Sophie and ordered monitored visitation. Over the next month and
half, the parents visited Sophie together on a weekly basis, with paternal
great aunt (hereafter, aunt) supervising. Aunt reported that father called
Sophie via video-chat.
On November 29, 2018, the juvenile court adjudicated the petition and
declared Sophie a dependent under Welfare and Institutions Code section
300, subdivision (b),1 based on mother’s mental and emotional problems and
mother leaving Sophie unattended in the car. The court removed Sophie
from parental custody and ordered Sophie to be suitably placed under the
supervision of DCFS. The court also ordered DCFS to provide family
reunification services and monitored visitation. Sophie remained placed with
paternal great aunt and uncle.
At the six-month review hearing, DCFS reported father had not made
himself available to DCFS. He reported enrolling in domestic violence
counseling and parenting classes, but the social worker was unable to confirm
his enrollment or progress. Father had consistently visited Sophie every
Sunday. Despite aunt advising father to avoid letting Sophie play with
electronical instruments, father allowed Sophie to constantly play with his
phone during the visits. Also, father’s interactions with Sophie were limited
during the visits, and aunt often had to guide father to play games or do
other activities with Sophie. The court continued reunification services.
1 All further statutory references are to the Welfare and Institutions
Code, unless otherwise stated.
3
At the 12-month review hearing, DCFS reported father completed a
parenting program and enrolled in counseling; however, he made little
progress in his treatment. Father continued to visit Sophie weekly. During
his visits, father “continue[d] to struggle with setting boundaries, engaging
with Sophie, and implementing rules or discipline.” The court found father
was in substantial compliance with the case plan. Over DCFS’s objection, the
court ordered continued reunification services. The court further ordered
DCFS to liberalize father’s visitation to unmonitored and gave DCFS
discretion to allow for weekend and overnight visits.
The juvenile court continued the 18-month review hearing several
times. DCFS reported father completed his court-ordered case plan. Father
had been living in a room at a tire shop since January 2020, but he was
looking for appropriate housing for Sophie. Father was not working
consistently due to the COVID-19 pandemic and modified his visits with
Sophie to virtual because of her asthma. Father admitted to having some
struggles redirecting Sophie, and aunt reported she would often step in to
assist him. However, aunt stated father’s interactions with Sophie had
improved.
By August 2020, in-person visits resumed, but father visited only once
a month. Father would call if he missed a visit but did not call any other day
of the week. Moreover, father had a difficult time setting boundaries with
Sophie. He explained, “[T]his is my only time to see her, so I’m going to give
her what she wants.”
DCFS was concerned about father’s ability to be forthcoming and his
willingness to protect Sophie from mother. For example, Sophie was
detained from mother at the beginning of the dependency case and a safety
plan was created to allow Sophie to stay with relatives. However, father
4
picked Sophie up from the relative’s care and returned Sophie to mother.
Most recently, when aunt asked father for his consent to have Sophie
assessed for therapy, he responded by giving her mother’s phone number to
obtain consent.
By October 2020, father had obtained appropriate housing. Although
his visits were liberalized to unmonitored, he did not exercise them. The
social worker and aunt went over Sophie’s schedule and appointments with
father and invited him to attend wraparound sessions and team meetings.
DCFS created an unmonitored visitation schedule for father that included
overnight visits.
Father reported the visits went well, but Sophie had a difficult time
falling asleep at night. Aunt similarly reported the visits went well, but
Sophie had become more argumentative and defiant in the home after her
visits with father. On Sophie’s first overnight visit, father returned Sophie to
aunt’s home more than five hours late without calling to inform aunt. The
second overnight visit was scheduled during the week so father could
experience having Sophie in his home during the school day. Aunt set up an
internet hotspot in father’s home and gave him instructions on how to access
Sophie’s online school. However, father was unable to access the school, so
instead he took Sophie to the beach. On the third scheduled overnight visit,
father failed to show up and did not call to cancel the visit. Father’s
subsequent overnight visit was without incident. Father did not speak to
Sophie outside of these visits.
Father met regularly with Sophie’s wraparound therapist, who
reported her concerns about father’s ability to manage Sophie’s needs with
her appointments, services, and the transition of locating a daycare and
school if Sophie returned to him. She also reported father had difficulty
5
connecting to services and worried father would need more support in this
area. Additionally, she was concerned father would not be able to keep up
with Sophie’s many appointments.
Sophie’s behavior had regressed during this period. She had asked
aunt why she was forced to go with father. Aunt explained to her that she
was not forcing her, and that Sophie had a choice. When asked by the social
worker if she wanted to live with father, Sophie responded that she wanted to
live with aunt. Sophie also reported that she saw mother during one of
father’s visits.
The court found father’s compliance with the case plan had not been
substantial. The court terminated reunification services and referred the
matter for a permanency planning hearing.
B. Permanency Planning Hearing
In December 2020, father had a few overnight visits with Sophie. The
social worker expressed an ongoing concern about father not being able to
correct Sophie’s behavior, allowing unauthorized individuals to provide care
for Sophie, and visiting with a relative exposed to COVID-19. Aunt also
reported father did not provide structure or rules for Sophie, and she tended
to be reluctant to follow the household rules when she returned from visits.
Therefore, DCFS directed that the visits revert to unmonitored day visits.
Sophie continued to participate in wraparound services, which aunt
reported were helpful, but aunt stated she had difficulty addressing
consistency of care when Sophie returned from her visits with father. Father
undermined aunt by telling Sophie that aunt “complains a lot,” and he
encouraged Sophie to keep things from aunt. Sophie expressed wanting to
remain with paternal great aunt and uncle.
6
In April 2021, father’s overnight visits with Sophie resumed. Father
continued to undermine aunt and did not allow Sophie to call her during the
visits. Father also bought Sophie a phone and asked her to keep it a secret
from aunt. When confronted by a social worker, father denied it.
Aunt expressed her frustration that Sophie struggled with sleep when
she was at father’s home. Father did not have a bedtime routine for Sophie.
Father also allowed Sophie to watch “zombie” movies and stay up late
watching her tablet. Although the social worker and wraparound team
continued to work with father to establish a routine for Sophie, father did not
follow through with the advice. Sophie was generally behaving better but
continued to struggle for a day or two after visits with father.
On May 27, 2021, the juvenile court held the permanency planning
hearing. The court received DCFS reports in evidence and heard testimony
from Sophie and father.
Sophie testified she called father, “Dad.” Sophie stated she visited
father every week and saw him on Saturdays and would spend the night.
Sophie hugged father when he picked her up for the visits. During her visits,
father took her to her grandmother’s house, the park, the store, and to his
house. Sophie testified she had fun with father at the park and liked
spending time with him. When her visits would end on Sunday, Sophie
stated she felt good because she could then play with her foster siblings.
Sophie also said she missed father during the week. During their phone
conversations, Sophie told father she loved and missed him.
Father’s testimony echoed Sophie’s. On cross-examination by Sophie’s
counsel, father testified he wanted more time with Sophie. However, when
asked if he requested more time, father responded he had not asked “the
lady,” referring to aunt, until the social worker granted him permission.
7
When pressed, father stated he did not ask the social worker for permission,
but he intended to ask. Father testified that Sophie had a bedtime routine.
When asked if she ever watched any “zombie” movies, he stated she did once
on PBS when he was “a little distracted that day.” Father testified Sophie
saw a doctor once or twice a year, but he had not attended any of those
appointments. On cross-examination by DCFS’s counsel, father testified he
did not know the name of her doctors or teachers. When asked if he ever
purchased a cell phone for Sophie, father responded an attorney gave him “a
little tablet” and it was not “activated.” Father admitted he asked Sophie to
keep it a secret from aunt because “there are rules there.”
The court stated its tentative ruling was that the beneficial parental
relationship exception did not apply. Sophie’s counsel agreed. Father’s
counsel argued, however, that he had both maintained consistent visitation,
and that Sophie would benefit from a continued relationship.
After hearing argument from counsel, the court noted that whether
termination of parental rights was appropriate was a close question because
father had progressed to unmonitored and overnight visits. Father was the
non-offending parent, and throughout the dependency case, father had
“stepped up” and visited Sophie more frequently and established a residence
where he could have overnight visits.
The court concluded, however, that father had not demonstrated that
he was ready to assume full-time parental care of Sophie during the actual
reunification period. In fact, most of the overnight visits occurred at the end
of the reunification period. There also continued to be issues about father’s
conduct during visitation, in that he left Sophie with mother and with
babysitters not approved by DCFS. Further, father did not possess the
8
“appropriate parenting skills in terms of basic things like bedtime and
preventing the child from seeing scary, age-inappropriate movies.”
Although father’s testimony appeared credible in terms of his affection
for Sophie and wanting to maintain a relationship, the court found his
answers to both Sophie’s and DCFS’s counsel extremely vague and evasive.
Father had not asked DCFS for more visitation with Sophie at any point and
essentially encouraged Sophie to break her caregiver’s rules. Father’s
reference to Sophie’s caregiver, who had taken care of Sophie for the last two
and a half years, as “lady” was disrespectful and showed a lack of insight.
Also, father admitted he was actively undermining the rules of Sophie’s
caregiver. Finding it would be detrimental to return Sophie to her parents
and no exception to adoption applied, the court terminated parental rights.
Paternal great aunt and uncle were designated as Sophie’s prospective
adoptive parents.
Father and mother timely appealed.
DISCUSSION
Father contends that he established the beneficial parental
relationship exception to termination of parental rights. We disagree and
affirm the juvenile court’s contrary finding.
A. Applicable Law
Once the juvenile court terminates reunification services and
determines a dependent child is adoptable (a finding not in dispute here), it
must select adoption as the permanent plan and terminate parental rights
unless it finds doing so would be detrimental to the child under one of several
9
statutory exceptions. (§ 366.26, subd. (c)(1); Caden C., supra, 11 Cal.5th at
pp. 630–631.)
The beneficial parental relationship exception, at issue here, applies
where the parent has “maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i).) Our Supreme Court recently clarified the three
elements a parent must prove, by a preponderance of the evidence, to
establish the exception: (1) the parent’s regular visitation and contact with
the child; (2) the child’s “substantial, positive, emotional attachment to the
parent,” “the continuation of which would benefit the child”; and (3) that the
termination of “that attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home.” (Caden
C., supra, 11 Cal.5th at pp. 631, 636.)
The first requirement, regular visitation and contact, is
“straightforward” and “[t]he question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court orders.’”
(Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child would
benefit from continuing the relationship.’” (Caden C., supra, 11 Cal.5th at p.
632.) “[T]he relationship may be shaped by a slew of factors, such as ‘[t]he
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.’” (Ibid.) Focusing on the child, “courts often
consider how children feel about, interact with, look to, or talk about their
parents.” (Ibid.) Recognizing that “rarely do ‘[p]arent-child relationships’
conform to an entirely consistent pattern,” the Supreme Court stated “it is
not necessary—even if it were possible—to calibrate a precise ‘quantitative
10
measurement of the specific amount of “comfort, nourishment or physical
care” [the parent] provided during [his or] her weekly visits.’” (Ibid.)
“Concerning the third element—whether ‘termination would be
detrimental to the child due to’ the relationship—the court must decide
whether it would be harmful to the child to sever the relationship and choose
adoption.” (Caden C., supra, 11 Cal.5th at p. 633.) “[C]ourts need to
determine . . . how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an adoptive
home without the parent in the child’s life.” (Ibid.) Thus, “‘[i]f severing the
natural parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that,’ even considering the benefits of a
new adoptive home, termination would ‘harm[ ]’ the child, the court should
not terminate parental rights.” (Ibid.)
We review for substantial evidence the juvenile court’s findings on
whether the parent has consistently visited the child and whether a
beneficial parental relationship exists. (Caden C., supra, 11 Cal.5th at pp.
639–640.) We review for abuse of discretion the court’s finding as to whether
termination of parental rights would be detrimental to the child because of
the beneficial parental relationship. (Id. at p. 640.) Nevertheless, we review
for substantial evidence any factual findings underlying the juvenile court’s
weighing of the harm of losing the relationship against the benefits of
adoption. (Ibid.) This “hybrid standard” Caden C. endorsed “simply
embodies the principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in the child’s
best interests for the trial court’s determination in that regard, reached
pursuant to the statutory scheme’s comprehensive and controlling
provisions.’” (Id. at p. 641.)
11
B. Analysis
Father demonstrated that he maintained regular visitation and contact
with Sophie. Thus, the first element of the beneficial parental relationship
exception is satisfied.
Father contends the juvenile court found, in substance, that he had a
significant relationship with Sophie. Therefore, the court should have found
that she would benefit from a continuing relationship. However, although
the court recognized the strong bond between Sophie and father, the court
ultimately determined that the relationship was actually detrimental, not
beneficial, to Sophie’s well-being. (Caden C., supra, 11 Cal.5th at p. 632
[factors include “‘the “positive” or “negative” effect on interaction between
parent and child’”]; see In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [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”].) The court found there continued to be issues with the way
father conducted himself during his visits with Sophie. The court was
particularly troubled that father would undermine aunt by refusing to
enforce rules, speaking negatively about aunt, and encouraging Sophie to
hide information from her. Indeed, father admitted doing these things.
At the beginning of the case, at the time of detention, Sophie was three
years old and solely in mother’s custody and care. She spent the next three
years with her paternal great aunt and uncle. Father was not very involved
in Sophie’s life prior to court intervention, because he was living in Mexico
and working in San Diego. While Sophie enjoyed her visits with father, there
was no evidence that separating from father at the end of those visits caused
her any emotional trauma. In fact, Sophie testified she felt good at the end of
12
her visits because she could play with her foster siblings. DCFS reported
father’s interactions with Sophie during the day visits were limited, and aunt
often had to guide him. Father continued to struggle with engaging with
Sophie, setting boundaries, and implementing rules or discipline. Aunt
reported Sophie became argumentative and defiant in the home after the
visits. Sophie also struggled with sleep when she was in father’s home, which
affected her for a day or two after the visits. Sophie had asked aunt why she
was forced to visit with father. When the social worker asked if she wanted
to live with father, Sophie responded that she wanted to live with aunt.
On this basis, we conclude that substantial evidence supports the
court’s finding that despite a bond between Sophie and father, the
relationship had a negative, not positive, effect on Sophie. Thus, the second
element to the beneficial parental relationship exception was not satisfied.
Moreover, even assuming the second element was met, the juvenile
court did not abuse its discretion by determining that any benefit Sophie
derived from her relationship with father was outweighed by the benefit she
would receive through permanency and stability of adoption. Evidence that
Sophie had pleasant visits with father is not enough to preserve parental
rights. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 [“The parent must
do more than demonstrate ‘frequent and loving contact[,]’ [citation] an
emotional bond with the child, or that parent and child find their visits
pleasant”].) Paternal great aunt and uncle were able and willing to provide
care. Although Sophie testified that she loved father and would be sad if she
could not see him, she also told the social worker she wanted to live with
aunt. Father’s limited relationship with Sophie is not that extraordinary
case where preservation of parental rights outweighs the preference for
adoption. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)
13
The case on which father principally relies, in re S.B. (2008) 164
Cal.App.4th 289 (S.B.), is distinguishable. In S.B., the father was the child’s
primary caregiver for three years prior to the child’s removal. (Id. at p. 298.)
The father maintained consistent and regular visits and complied fully with
his case plan. (Ibid.) After removal, the child continued to show a strong
attachment to the father. (Id. at p. 294.) The social worker noted the father
recognized, and was sensitive to, the child’s needs. (Ibid.) DCFS’s
recommendation to terminate parental rights was based in part on a relative
caregiver’s intent to continue visits between the child and parent. (Id. at p.
295.) The juvenile court found the father and child had “an emotionally
significant relationship”; however, there was no evidence to suggest the
father’s relationship with the child was parental in nature or that it would be
greatly detrimental to the child to terminate the relationship. (Id. at p. 298.)
The court ultimately terminated parental rights in part because the child’s
caregiver would allow her relationship with her biological parent to continue.
(Id. at p. 300.)
The appellate court determined that the “only reasonable inference”
was that the child would be greatly harmed by the loss of her relationship
with her parent and therefore the juvenile court erred when it found the
parental beneficial relationship exception did not apply. (Id. at p. 301.) In
support of its holding, the court stated that “a parent should [not] be deprived
of a legal relationship with his or her child on the basis of an unenforceable
promise of future visitation by the child’s prospective adoptive parents.” (Id.
at p. 300.)
Here, it cannot be said that the “only reasonable inference” was that
Sophie would be greatly harmed by the loss of the relationship with father.
As previously discussed, father had a very limited presence in Sophie’s early
14
life, and then for the almost three-year duration of the dependency case he
was unable to appropriately interact with Sophie during visits, and
undermined aunt by refusing to enforce rules, speaking negatively about
aunt, and telling Sophie to hide things from her.
S.B., supra, is further distinguishable because contrary to father’s
contention, the juvenile court’s decision was not based on any promise by
paternal great aunt or uncle to continue visitation. The court’s comment
regarding possible future contact was made on the heels of other statements
highlighting the difficulty of making the decision to terminate parental
rights. Also, the court’s comment does not suggest that it believed potential
postadoption contact necessitated a denial of the exception. The totality of
the juvenile court’s statements at the hearing makes clear that it decided to
terminate father’s parental rights because he failed to meet his burden of
proving the existence of a parental beneficial relationship exception. We do
not believe that the juvenile court injected an improper factor into its
determination on the exception or gave information on possible postadoption
contact any weight in deciding a permanent plan for Sophie.
Father contends the juvenile court applied an incorrect standard when
it stated that father failed to show that he was ready to assume full-time care
of Sophie. We agree that whether the parent is or is not ready for the child’s
return to his or her custody is not, by itself, relevant to the application of the
parental beneficial relationship exception. (Caden, supra, 11 Cal.5th at p.
638.) However, the comment at issue, viewed in context, appears to have been
simply part of the court’s summary of the history of the case. It was not part
of the basis of the court’s decision rejecting the merits of the beneficial
relationship exception.
15
In sum, the juvenile court acted within its discretion in rejecting the
beneficial parental relationship exception. Mother, having made no
independent contention of error, has likewise failed to show error.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
16