In re T.J. CA4/1

Opinion

Filed 3/19/14 In re T.J. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re T.J. et al., Persons Coming Under the Juvenile Court Law. D064559 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J517708A-B) Plaintiff and Respondent,

v.

TRACY J.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent. Tracy J. appeals from orders terminating his parental rights to his children, T.J.

and Nancy J., under Welfare and Institutions Code section 366.26. (Further statutory

references are to the Welfare and Institutions Code.) Tracy contends the juvenile court

erred when it determined the beneficial parent/child relationship exception did not apply

and terminated parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Tracy J. is the father of T.J., who is now four years old, and Nancy J., who is

almost three years old (together, the children). The children's mother, Michelle B.,

passed away in July 2013. On our own motion, we take judicial notice of this court's

opinions in Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415; In re Nancy J. (Feb.

16, 2012, D060221 [nonpub. opn.]; and Michelle B. v. Superior Court (Apr. 19, 2013,

D063054) [nonpub. opn.]. (Evid. Code, § 452, subds. (a) & (d).) The history of the

children's dependency cases is detailed in those opinions. We briefly review the facts

that are relevant to the issues raised in this appeal. (For brevity, and not out of any lack

of respect to Michelle, we focus on Tracy and his relationships with the children in this

opinion.)

T.J. and Nancy were removed from their parents' care at birth and adjudicated

dependents of the juvenile court because neither parent was able to provide regular care

to them. Tracy is intellectually disabled. A psychological evaluation indicated he

suffered from impairments in memory, reasoning, understanding, and communicating,

and would be unable to independently parent his children. The San Diego County Health

and Human Services Agency (the Agency) placed T.J., and later, Nancy, with a foster

2 family that was willing to adopt the children if Tracy and Michelle were unable to reunify

their family.

During the first 18 months of T.J.'s case, Tracy fully cooperated with the Agency,

made substantial progress with his court-ordered case plan, and demonstrated his ability

to feed, soothe, protect and care for his son. Tracy did not have any mental health or

personality disorders, substance abuse problems, or any history of crime or violence. The

Agency provided the parents with one three-to-four hour supervised visit a week. A

visitation supervisor and other professionals involved in the case characterized Tracy's

interactions with T.J. as "great," "very protective," "very loving and adoring," "protective

[and] alert," and "very nurturing, very loving." Tracy was described as a "very loving,

caring father" who was "very cognizant of [T.J.'s] safety." The social worker

acknowledged Tracy had a basic understanding of how to care for T.J. and that he

communicated extensively and played with his son, but she remained concerned that

Tracy would not be able to adequately care for T.J. in an emergency. At each review

hearing, the Agency asked the juvenile court to terminate reunification services, set a

section 366.26 hearing, and select adoption as T.J.'s permanent plan.

In July 2011, the juvenile court terminated reunification services in T.J.'s case and

set a section 366.26 hearing. (Nancy's dependency case was ongoing.) The parents

challenged the juvenile court's rulings. This court held that the Agency had unreasonably

limited the parents' visitation services and remanded the matter to the juvenile court with

directions to expand the parents' visitation with T.J., including unsupervised visitation as

3 appropriate, commensurate with the level of visitation and other services the juvenile

court had ordered in Nancy's dependency case.

Following remand in February 2012, the juvenile court implemented a new

visitation plan for the family. Once a week, the parents and the children participated in a

two-hour "Mommy & Me" class, followed by an unsupervised visit for approximately

one hour. On Wednesdays, when Tracy's independent living skills (ILS) worker,

Randlene Ostlund, helped him with independent living and parenting skills, the children

stayed with the parents for approximately six hours, including one hour of unsupervised

visitation. Every other week, the parents had a one-hour unsupervised visit with the

children in a park at some distance from their home (park visit), which required them to

make a 10-hour round-trip commute by public transportation. After regularly making the

difficult commute to see their children from January through May 2012, the parents

stopped attending the park visit. When the "Mommy & Me" classes ended in August, the

Agency refused to make alternative arrangements to maintain the parents' second weekly

visit because the parents were not taking advantage of the park visits. The parents

continued to have a six-hour visit with their children once a week.

In June 2012, the Agency recommended that the juvenile court terminate the

parents' reunification services and set a hearing under section 366.26. The children's

pediatrician expressed concerns about the parents' ability to safely care for the children

and meet their medical needs. (T.J. had severe asthma.) The parents continued to have

difficulties supervising both children together. T.J. liked to run and almost ran into a

street and a parking lot. Tracy put Nancy on a bed and walked away. She crawled off

4 the bed and fell on her head. The social worker reported that the parents made sure the

children had enough to eat and had plenty of toys but they required significant guidance

and direction to safely parent.

In November 2012, the juvenile court found that the parents made substantive

progress with their case plans except in their ability to assess, and react to, emergency

situations. The juvenile court found that it would be detrimental to the children to return

to their parents' care, terminated reunification services, and set a section 366.26 hearing.

The section 366.26 hearing was held on June 28, July 15, August 30 and

September 6, 2013. The children's court-appointed special advocate (CASA) testified

that Tracy was "very playful" and "very attentive" in his interactions with the children.

The children seemed excited when they arrived for visits. Tracy actively engaged the

children. He climbed on the playground structure with them, introduced toys and played

with them. However, Ostlund had to remind Tracy to give T.J. his asthma inhaler and

also advised him to cut the children's food into smaller pieces. The CASA said the foster

parents had a more parental role with the children whereas Tracy's relationship with them

was more playful.

Jessika Ahlberg, an Agency adoptions social worker, observed two visits between

the children and their parents. Tracy removed toys, diaper bags, backpacks, food and

drinks from the car and brought them to the playground area. He "orchestrated" the visit,

staying in close proximity to the children. If T.J. and Nancy split up, Tracy would stay

with T.J. Tracy supervised T.J. without assistance. During one visit, Nancy laid her head

on Tracy's chest. Ahlberg said the children enjoyed spending time with Tracy. They had

5 fun. Tracy displayed age-appropriate parenting skills. The children knew Tracy as their

father and called him "dad" or "daddy". Ahlberg did not believe that the children had a

primary parental bond with Tracy. Instead, they viewed him more like an uncle or an

extended family member.

William Balliet, an Agency adoptions social worker, observed four visits between

the children and their parents, and visited the children in the foster family home. In

assessing the parent/child relationships between Tracy and his children, Balliet did not

observe the children seeking comfort or attention from their father. By contrast, they

were very talkative and engaged with their foster parents. Balliet believed that the

children would benefit from having continued contact with Tracy but it was not necessary

for their emotional well-being.

Dr. Yanon Volcani, Ph.D., a clinical psychologist, conducted a bonding study of

the children and their parents. Before observing the children with their parents, he

reviewed the social worker's reports, and interviewed Randene Ostlund and the children's

foster mother to gain an understanding of the extent and nature of visitation and contact

between the children and their parents. The foster mother advised him that she was

willing to allow some continued contact between the children and their parents but would

be reluctant to continue caring for the children under a plan of guardianship or long-term

foster care.

In looking at bonding, Dr. Volcani evaluated the frequency and manner in which

the child sought contact with the parent. He said Tracy was an adoring, engaged,

embracing and "childcentric" father. Tracy was enormously playful and resonative. He

6 was extremely adept at engaging with the children at their level. Tracy related to T.J. and

Nancy in a manner supportive of their emotional security with competence and

confidence. The children demonstrated significant attachments to their father. T.J. had a

clear understanding of the difference between his foster father and his own father.

Although T.J. and Nancy were "adoringly interactive" with their parents, Dr.

Volcani concluded that the children identified their foster parents as their primary

caregivers. T.J. identified his foster mother as the person he wanted to tuck him in bed at

night, read him a story, cook him dinner and feed him, bathe him, get him up in the

morning, feed him breakfast, help him get ready for the day, take care of him if he were

sick, and be with him if he were scared. He identified his foster father as the person he

wanted to take care of him if he were physically hurt and help fix a broken toy.

Dr. Volcani said if T.J. were not to see his father, his relationship with his foster

parents would buffer him from obvious and overt symptomology such as clinical

depression, but would not protect him from the loss of the person he knew as his father.

In some cases, such a loss could disrupt a child's development and lead to increased

incidents of behavioral and relational difficulties, and substance abuse. However, the

children also needed security and stability, which might preclude a plan of long-term

guardianship.

Randene Ostlund provided independent living skills and parenting instruction to

persons with developmental disabilities. She worked with Tracy 40 hours a month. His

visits with the children occurred while she was present. Ostlund spent approximately

1000 to 1200 hours with Tracy and the children in the last two-and-a-half years. The

7 children were always happy to see their father. Their happiness was evident from the

way they greeted him, the expressions on their faces and their body language. Tracy was

well bonded with his children and his children had formed a strong attachment to him.

Sometimes Nancy preferred her foster mother.

The juvenile court said the starting point for his analysis was that Tracy, despite

his efforts and attention to his children, did not have the intrinsic ability to parent them.

The juvenile court found that Tracy maintained regular visitation and contact with his

children, stating, "I would also even conclude that the child[ren] would, in fact, benefit

from continuing that relationship. I'm not going to deny that, it's a true fact, but we get

down to what I feel are the important words of the exception: Are there compelling

reasons that termination would be detrimental to the child because of that bond?"

In concluding that termination of parental rights would not be detrimental to the

children within the meaning of the parent/child relationship exception, the juvenile court

found that the children had a deep bond with the current caregivers. They had been in the

foster parents' care since they were infants. Tracy required supportive services to manage

his daily life and support his role as a father. The court terminated parental rights and

designated the foster parents as the children's prospective adoptive parents.

DISCUSSION

A

Tracy contends he has developed and nurtured beneficial relationships with his

children despite his disabilities and the Agency's improper limitations on his visitation.

He argues the evidence clearly establishes that his children have a significant bond to him

8 and would suffer serious harm if the parent/child relationships were terminated. Tracy

contends the relationships between him and his children are similar to the parent/child

relationship in In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), in which this court reversed

the order terminating parental rights.

The Agency points out that this court has confined S.B. to its extraordinary facts.

(In re C.F. (2011) 193 Cal.App.4th 549, 558-559 (C.F.). It argues this case is not similar

to S.B. because, unlike the parent in S.B., Tracy suffered from developmental disabilities,

which impacted his ability to adequately parent his children.

B

At a permanency plan hearing under section 366.26, the court may order one of

three alternatives—adoption, guardianship or long-term foster care. (In re S.B., supra,

164 Cal.App.4th at pp. 296-297.) There is a strong preference for adoption over the

alternative permanency plans. (Id. at p. 297; San Diego County Dept. of Social Services

v. Superior Court (1996) 13 Cal.4th 882, 888.) "In dependency proceedings, an order

terminating parental rights is not only conclusive and binding upon the birth parents, but

also effectuates a complete and final legal termination of the parental relationship.

[Citations.] The parent-child relationship enjoys no legal recognition after termination of

parental rights. [Citations.]" (In re C.B. (2010) 190 Cal.App.4th 102, 128.)

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of

parental rights where "[t]he parents have maintained regular visitation and contact with

the child and the child would benefit from continuing the relationship." In this context,

" 'benefit' " means that the parent-child relationship "promotes the well-being of the child

9 to such a degree as to outweigh the well-being the child would gain in a permanent home

with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn

H.).) "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.

(Ibid.) To prove the exception, a parent is not required to show that the child has a

primary attachment to the parent or that the parent has maintained day-to-day contact

with the child. (S.B., supra, 164 Cal.App.4th at p. 299.)

We determine whether there is substantial evidence to support the court's ruling by

reviewing the evidence most favorably to the prevailing party, and indulging in all

legitimate and reasonable inferences to uphold the court's ruling. (S.B., supra,

164 Cal.App.4th at pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do

not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary

conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)

C

Throughout the children's dependency proceedings, Tracy complied with every

aspect of his reunification case plans, regularly visited the children, and developed

relationships with them that were mutually affectionate and loving. Tracy's disability did

not diminish his love for his children, it focused it. The juvenile court found that the

children would benefit from continuing their relationship with their father, but would not

be seriously harmed by termination of parental rights because they had deep bonds with

their current caregivers.

10 While Tracy was no doubt as devoted to his children as the father in S.B. was to

his child, the record here supports a finding that continuation of the parent/child

relationship does not outweigh the benefit the children would gain from being adopted by

the family that has cared for them since infancy. (S.B., supra, 164 Cal.App.4th at p. 298.)

T.J. was placed with the foster parents when he was two months old. He is now four

years old. Nancy has lived with the foster parents since she was two days old. She is

almost three. They have known no other home. The foster parents have been the

children's sole caregivers. They know them as "mommy" and "daddy". During Dr.

Volcani's bonding study, T.J. chose his foster mother as the person he most wanted to

tuck him in bed, read him a story, cook him dinner and feed him, bathe him, get him up

in the morning, feed him breakfast, help him get ready for the day, take care of him if he

were sick, and be with him if he were scared. The juvenile court could reasonably

conclude that a plan of guardianship or long-term foster care could result in the children

being removed from the only home they have ever known, with devastating

consequences to the children's well-being.

In Tracy, the children have a father who has given them a full measure of his love,

devotion, attention and affection. The children's foster parents have given them no less.

In addition, the foster parents have provided a safe, stable home to the children, met their

needs for comfort, nourishment, guidance and appropriate care, and can offer them a

permanent home. In view of the children's young ages, their needs for security and

stability with a competent caregiver are paramount. (Autumn H., supra, 27

Cal.App.4th at p. 576.) The foster parents have existing bonded relationships with the

11 children that are parental in nature. They have the ability to make independent decisions

concerning the children's long-term interests in education, medical care and appropriate

relationships. We conclude there is substantial evidence to support the juvenile court's

finding the beneficial parent/child relationship exception did not apply. (§ 366.26, subd.

(c)(1)(B)(i).)

DISPOSITION

The orders terminating parental rights are affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.