In re L.P. CA4/2

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1 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 2 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

4 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

5 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.

6 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

7 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

8 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

9 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.”

10 (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.)

11 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

12 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.