In re Jadon L. CA2/7

Filed 8/14/23 In re Jadon L. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
In re JADON L., a Person B326288
Coming Under the Juvenile Court (Los Angeles County Super.
Law. Ct. No. 20CCJP06411C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NICOLAS L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Arezoo Pichvai for Plaintiff and Respondent.
__________________________
Nicolas L. (Father) appeals from the juvenile court’s order
terminating his parental rights over six-year-old Jadon L. under
Welfare and Institutions Code section 366.26.1 Father contends
the court abused its discretion in finding the beneficial parental
relationship exception to termination of parental rights did not
apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral, Dependency Petition, and Detention
On November 26, 2020 the Los Angeles County
Department of Children and Family Services (Department)
received a referral alleging law enforcement responded to a call
that Elizabeth R. (Mother)2 had been acting in a bizarre and
dangerous manner, including walking around the roof ledge of
the three-story building where she, Father, and Jadon lived. The
police officers took Mother to a hospital for psychiatric
evaluation, where she was placed on a psychiatric hold. Father
and the maternal grandparents, Jose R. and Maria M., reported
Mother had not slept for four days; she had refused to eat, stating
she “‘won’t eat human flesh’”; she had auditory hallucinations;
and she had been physically aggressive toward Father and
1 Further statutory references are to the Welfare and
Institutions Code.
2 Mother is not a party to this appeal.
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threatened to harm him and the maternal grandfather. Mother
had been diagnosed with schizophrenia, but she was not
participating in mental health services or taking any
psychotropic medication. She had been in a drug treatment
program six years earlier, and Father and the maternal
grandparents suspected Mother might again be using drugs given
the changes in her behavior.
In a November 27, 2020 interview with the social worker,
Mother admitted she used marijuana, crystal methamphetamine,
and Xanax. Mother reported Father supplied her with marijuana
and crystal methamphetamine, and she last used drugs on
November 23. Father denied supplying Mother with any drugs.
Father stated he found a baggie of what appeared to be crystal
methamphetamine in Mother’s jacket on November 23, and he
told Mother he would leave with Jadon if she continued to use
drugs.
Father admitted he had a history of substance abuse,
including use of marijuana, crystal methamphetamine, and
heroin. But he claimed he last used marijuana and crystal
methamphetamine more than 20 years earlier when he was
involved in gang activity, and his only use of heroin was in 2013
while in prison. Father agreed to submit to drug testing, and on
November 30, 2020 he tested positive for 6-acetylmorphine (a
heroin metabolite).
On December 4, 2020 the Department filed a dependency
petition on behalf of then-four-year-old Jadon and Jadon’s half-
siblings, 13-year-old Christopher L. and 12-year-old Abigail L.,3
3 Jesus L. is the father of Christopher and Abigail.
Christopher and Abigail are not at issue in this appeal.
3
under former section 300, subdivision (b)(1). The petition alleged
Mother had a history of substance abuse and was a current
abuser of methamphetamine and marijuana, which rendered her
incapable of providing regular care to the children. The petition
further alleged Father knew of Mother’s substance abuse and
failed to protect Jadon by allowing Mother to reside with Jadon
and have unlimited access to the child. In addition, Mother had
“a history of mental and emotional problems, including auditory
hallucinations, aggressive, bizarre and erratic behavior, and a
diagnosis of [d]epression and [s]chizophrenia,” which rendered
her incapable of providing regular care of the children. Father
knew of Mother’s mental and emotional problems and failed to
protect Jadon by allowing Mother to reside with Jadon and have
unlimited access to him.
At the December 9, 2020 detention hearing, the juvenile
court detained Jadon from Mother and released him to Father on
the conditions that Father reside in the paternal grandmother’s
home, participate in family preservation services, and submit to
weekly on-demand drug and alcohol testing. Father did not meet
the conditions, and Jadon was placed in a foster home along with
Christopher and Abigail.
In December 2020 Father missed three random drug tests.
On December 28 the Department filed a first amended petition,
alleging that Father had a history of substance abuse and was a
current abuser of heroin. The first amended petition alleged
Father “possessed, used, and was under the influence of” heroin
while the children were in Father’s care, and he tested positive
on November 30, 2020. In addition, Mother knew of Father’s
4
substance abuse and failed to protect Jadon by allowing Father to
reside in the home and have unlimited access to the child.4
At the January 19, 2021 detention hearing, the juvenile
court detained Jadon from Father. The court granted Father
monitored visits and ordered the Department to set up a
visitation schedule for Father. The Department placed Jadon,
Christopher, and Abigail in Maria’s home.
B. The Jurisdiction and Disposition Report and Hearing
According to the January 22, 2021 jurisdiction and
disposition report, Jadon continued to reside with Maria, along
with Christopher and Abigail. Maria, Christopher, and Abigail
stated Jadon was happy and doing well. The social worker
similarly reported Jadon and his siblings appeared very happy
living with Maria. The social worker offered Father visitation
with Jadon while Jadon was in foster care, but Father stated he
intended to wait until Jadon was placed with Maria. However, as
of January 22, Father had not contacted the social worker to
arrange for visitation.
Father told the dependency investigator that he contacted
the police because he was concerned about Mother’s mental
health problems and Jadon’s safety while in Mother’s care.
Father denied he had used heroin and stated he did not
understand why his drug test was positive.
At the February 3, 2021 jurisdiction and disposition
hearing, the juvenile court sustained the allegations in the first
amended petition under former section 300, subdivision (b)(1),
4 Father later tested positive for heroin on January 6, 2021.
5
based on Mother’s mental and emotional problems and substance
abuse and Father’s failure to protect, as well as Father’s
substance abuse and Mother’s failure to protect. The court
declared Jadon, Christopher, and Abigail dependents of the court
and removed them from their parents’ physical custody. The
court ordered Father to submit to weekly random drug tests, and
if Father missed a test or tested positive, he had to complete a
full drug program with drug testing for a minimum of six months.
The court also ordered Father to attend developmentally
appropriate parenting classes and a 12-step program with court
card and sponsor. The court granted Father monitored visits for
a minimum of three times per week for three hours each visit,
with the Department having discretion to liberalize visitation.
C. Father’s Visitation and Services During the Family
Reunification Period
The July 20, 2021 six-month review status report stated
Jadon continued to reside with Maria, Christopher, and Abigail.
The children reported they enjoyed living with Maria and her
husband, Moises S. Maria wanted to adopt the children. The
social worker observed Jadon loved his siblings and was
“especially attached to his brother Christopher.” The social
worker added, “Jadon does not like to go anywhere if his brother
does not go.”
The social worker reported Father was not in compliance
with his case plan. Father missed all 17 scheduled weekly drug
tests. Father explained he missed drug tests because he was
busy with work. Further, Father had not enrolled in a 12-step
program, parenting program, or drug treatment program. Father
told the social worker that he should not have to participate in
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any court-ordered services because he was not at fault and the
positive drug test was a mistake.
Although Father’s visitation schedule allowed for
monitored visits every Wednesday and Saturday for four-and-a-
half hours each visit, Father’s visits were usually only two hours
long, and he did not consistently visit on all allowable days.
Father told Maria that Jadon was sometimes sad during visits
but cheered up when he was told he would be returning to
Maria’s home.
As of January 14, 2022, Father still had not submitted to
drug testing and had not enrolled in any court-ordered services.
The 12-month status report stated Father usually visited Jadon
for two hours on Saturday “due to Jadon now being in school.”
Maria reported Jadon was happy before and after Father’s visits
and there were no concerns with Father’s visits. Jadon stated the
visits were “good,” and Father took him to the park or to eat
pizza. Jadon said he was happy in Maria’s home, but he loved
Father.
At the March 2, 2022 12-month review hearing, the
juvenile court found Father was not in compliance with his case
plan and had “not consistently and regularly visited” Jadon. The
court terminated Father’s family reunification services and set a
selection and implementation hearing (§ 366.26) for June 28,
2022.
D. Father’s Visitation After Termination of Family
Reunification Services
According to the June 17, 2022 section 366.26 report,
Father visited Jadon every other week on Saturday or Sunday at
a park, usually for two hours each visit. Maria reported Jadon
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was happy to have visits with Father. But Jadon did not ask
about Father outside of visitation, and he did not cry at the end of
Father’s visits.
Maria and the maternal uncle, Edgar R., expressed interest
in adopting Jadon, Christopher, and Abigail. Both Christopher
and Abigail wanted Maria and Edgar to adopt them. The social
worker was unable to obtain a statement from Jadon. The
Department requested a continuance for 90 days to complete the
adoption assessment and to provide proper notice to Christopher
and Abigail’s father, Jesus.5
The social worker reported in August 2022 that Maria
continued to meet the needs of Jadon and his siblings. Jadon was
enjoying first grade, and he appeared happy in Maria’s home.
Jadon wanted to stay in the same home as Christopher and
Abigail. Father visited Jadon two to three times per month.
The September 19, 2022 supplemental report for the
section 366.26 hearing stated the adoption readiness assessment
was approved on September 16. Maria and Edgar were
committed to adopting the children, and Christopher and Abigail
wanted to be adopted by Maria and Edgar. Jadon was unable to
provide a statement concerning adoption.
E. Father’s Section 388 Petition
On January 3, 2023, prior to the selection and
implementation hearing, Father filed a section 388 petition
5 At the Department’s request, the June 28, 2022
section 366.26 hearing was continued several times to afford the
Department time to conduct due diligence for Jesus and to
complete the adoption assessment.
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requesting return of Jadon to his custody or reinstatement of
family reunification services and unmonitored visits. Father
argued there was a change in circumstance because he enrolled
in a methadone maintenance program on November 30, 2022,
and he was “trying to get into a parenting program but he
need[ed] a letter from the social worker.” The juvenile court
summarily denied the section 388 petition without an evidentiary
hearing, finding there was “no change in circumstances.”
F. The Selection and Implementation Hearing
At the January 3, 2023 section 366.26 hearing, Father
testified that he visited Jadon once a week, and sometimes twice
a week for “a couple of hours to maybe three hours.” Father
sometimes could not visit because he worked in construction and
his jobsite was far away, but it was “rare” when he missed a
weekend visit. During visits, Father and Jadon would “play ball,”
“play with [Jadon’s] toys,” or “do whatever [Jadon] wants to do.”
Father testified Jadon was “very happy to see” him during visits.
Jadon would “get a little sad” at the end of visits, but Jadon
would cheer up when Father told Jadon he would visit the
following week.
Father’s attorney argued the beneficial parental
relationship exception to termination of parental rights applied
because Father consistently visited to the extent permitted by his
work schedule; Father “had good visits with his son”; Jadon
recognized him as his father; and it would be beneficial for Jadon
to continue to have Father in his life through a legal
guardianship. Minor’s counsel argued the exception did not
apply because Father’s visits were “not always weekly”; Jadon
and his siblings had been “comfortable and thriving in their
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grandmother’s care”; Jadon had been out of Father’s care for
three years;6 and the benefits of the relationship with Father did
not “outweigh the benefit to Jadon of remaining in a long-term
caring home with his grandmother and his siblings.” The
Department’s attorney similarly argued Father had “maintained
somewhat regular visitation,” but there was no evidence that
ending the relationship would be detrimental to Jadon, and
“adoption would create a sense of stability for Jadon to belong,
personally, with his maternal grandmother and uncle,” as well as
his brother and sister.
The juvenile court found by clear and convincing evidence
that Jadon was adoptable and no exception to termination
applied. The court found “there is a bond” between Jadon and
Father, and Jadon identified Father as his father, but “visitation
[was] not as consistent as maybe [Father] would like it” (because
of work obligations). The court further found “the benefit of
permanence outweighs the benefit to not terminate parental
rights” and “not terminating parental rights would affect the
sibling bond for the other siblings in the home, for all of the
reasons outlined by” the Department’s attorney.
Father timely appealed.7
6 In its respondent’s brief, the Department acknowledges
that Jadon was out of Father’s care for two years, and not three
years as stated by minor’s counsel.
7 Father stated in his notice of appeal that he was appealing
from both the order terminating his parental rights and the order
summarily denying his section 388 petition. However, he failed
in his appellate briefs to present any argument addressing denial
of his section 388 petition, thereby forfeiting or abandoning the
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DISCUSSION
A. Governing Law and Standard of Review
“At the section 366.26 hearing, the focus shifts away from
family reunification and toward the selection and implementation
of a permanent plan for the child.” (In re S.B. (2009)
46 Cal.4th 529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614,
630 (Caden C.).) “‘Once the court determines the child is likely to
be adopted, the burden shifts to the parent to show that
termination of parental rights would be detrimental to the child
under one of the exceptions listed in section 366.26, subdivision
(c)(1).’” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225;
accord, In re Celine R. (2003) 31 Cal.4th 45, 53 [“the court must
order adoption and its necessary consequence, termination of
parental rights, unless one of the specified circumstances
provides a compelling reason for finding that termination of
parental rights would be detrimental to the child”].)
Under section 366.26, subdivision (c)(1)(B)(i), “the parent
may avoid termination of parental rights” if the parent
establishes by a preponderance of the evidence “that the parent
has regularly visited with the child, that the child would benefit
from continuing the relationship, and that terminating the
relationship would be detrimental to the child. [Citations.] The
language of this exception, along with its history and place in the
argument on appeal. (See Tiernan v. Trustees of Cal. State
University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not
raised on appeal “deemed waived”]; Limon v. Circle K Stores Inc.
(2022) 84 Cal.App.5th 671, 687 [“‘Issues not raised in an
appellant’s brief are deemed waived or abandoned.’”].)
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larger dependency scheme, show that the 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 adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the
parent “‘visit[s] consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at
p. 632; accord, In re I.E. (2023) 91 Cal.App.5th 683, 691.)
Whether “‘the child would benefit from continuing the
relationship’” with his or her parent is shaped by 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.’”
(Caden C., at p. 632; accord, In re Katherine J. (2022)
75 Cal.App.5th 303, 317.) When determining whether
termination of parental rights would be detrimental to the child,
courts need to consider “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.” (Caden C., at p. 633; accord, In re D.P. (2022)
76 Cal.App.5th 153, 164.) “‘If 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.” (Caden C., at p. 633;
accord, In re Katherine J., at p. 317.) “While application of the
beneficial parental relationship exception rests on a variety of
factual determinations properly reviewed for substantial
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evidence, the ultimate decision that termination would be
harmful is subject to review for abuse of discretion.” (Caden C.,
at p. 630; accord, In re I.E., at p. 691.)
B. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception Did Not
Apply
Father contends and the Department concedes Father
established the first two elements of the beneficial parental
relationship: (1) “‘regular visitation’” and (2) “‘the child would
benefit from continuing the relationship.’” (Caden C., supra,
11 Cal.5th at p. 632.) Father consistently visited Jadon once
every one or two weeks for two hours each visit, although he was
allowed two visits each week. Jadon was four years old when he
was detained from Father. By the time of the section 366.26
hearing, Jadon was six years old and had spent two years out of
Father’s physical custody. But Jadon knew Father was his
father, and Jadon stated he loved Father. Maria reported Jadon
looked forward to visits with Father, and Father testified Jadon
was “very happy to see” him at visits. During visits, Father and
Jadon would play together at the local park or go out to eat pizza.
The parties disagree on the third element: whether
termination of the parental relationship would be detrimental to
Jadon. (Caden C., supra, 11 Cal.5th at p. 633.) Father contends
the juvenile court abused its discretion in finding the benefits to
Jadon of continuing his relationship with Father did not
outweigh the benefits of adoption. There was no abuse of
discretion.
As discussed, Jadon said he loved Father and was happy to
see him. And Father testified Jadon would “get a little sad” at
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the end of visits, but he cheered up when he learned he would see
Father the following week. However, Maria reported Jadon did
not cry after visits or ask about Father when they were not
together. The juvenile court found Jadon had “a bond” with
Father, but the record does not reflect a “substantial, positive,
emotional attachment.” (Caden C., supra, 11 Cal.5th at p. 636.)
Rather, the relationship was more similar to that of a friendly
relative having play dates with Jadon. As the Court of Appeal
explained in In re Katherine J., supra, 75 Cal.App.5th at page
318, “the beneficial relationship exception demands something
more than the incidental benefit a child gains from any amount of
positive contact with her natural parent.” (Accord, In re B.D.,
supra, 66 Cal.App.5th at p. 1230.)
Moreover, for the prior two years, Maria met Jadon’s needs,
and Jadon was happy in Maria’s home. And Maria and Edgar
wanted to adopt all three children. On this record, the juvenile
court did not abuse its discretion in finding it would not be
detrimental to Jadon to sever his relationship with Father when
balanced against the benefits of a permanent home with the
maternal grandmother, maternal uncle, and siblings.8
8 Father contends the appropriate permanent plan is legal
guardianship, and not adoption. But as the Supreme Court
explained in In re Celine R., supra, 31 Cal.4th at page 53, “In
order of preference the choices are: (1) terminate parental rights
and order that the child be placed for adoption (the choice the
court made here); (2) identify adoption as the permanent
placement goal and require efforts to locate an appropriate
adoptive family; (3) appoint a legal guardian; or (4) order long-
term foster care. (§ 366.26, subd. (b).) . . . . ‘Adoption is the
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DISPOSITION
The juvenile court’s order terminating Father’s parental
rights is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
Legislature’s first choice because it gives the child the best
chance at [a full] emotional commitment from a responsible
caretaker.’ [Citation.] ‘Guardianship, while a more stable
placement than foster care, is not irrevocable and thus falls short
of the secure and permanent future the Legislature had in mind
for the dependent child.’” (Accord, Caden C., supra, 11 Cal.5th at
p. 631 [“‘[t]he statutory exceptions merely permit the court, in
exceptional circumstances [citation], to choose an option other
than the norm, which remains adoption’”].)
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