California Court of Appeal Nov 9, 2020 No. E074867Unpublished
Filed 11/9/20 In re A.T. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.T. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNANDINO COUNTY E074867 CHILDREN AND FAMILY SERVICES, (Super.Ct.Nos. J271117 & J271119) Plaintiff and Respondent,
v. OPINION
A.T.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel and Dawn W. Martin, Deputy County
Counsel for Plaintiff and Respondent.
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A.T. (father) appeals the juvenile court’s order terminating his parental rights over
two of his sons and freeing them for adoption by their current caregivers. He argues the
parental benefit exception to terminating parental rights applies to him because he
consistently visited his sons throughout this dependency proceeding and because his sons
are bonded to him. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory
citations refer to this code.)
We conclude the juvenile court correctly determined the exception does not apply
in this case. Though the boys had regular and positive supervised visits with father,
positive contacts and evidence of a bond do not, by themselves, constitute a compelling
reason to deprive a dependent child of the permanency benefits of adoption; there must
also be evidence that the child will suffer detriment if the parent-child relationship is
severed. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316.) In this case, the boys
have been out of father’s care and in the home of the same foster family for over three
years. They are happy, comfortable, and thriving in their current home, and there is no
evidence they would suffer detriment from the termination of father’s parental rights. We
therefore affirm.
I
FACTS
A. Jurisdiction and Removal
When this dependency proceeding began, father and Angela B. (mother, who is
not a party to this appeal) had been in a relationship for about five years. They have three
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sons together, A.T., Aaron T., and Ashton T., and mother has two other sons who are the
boy’s half siblings—Alexander B., who is now over 18 years old, and Amon T., who was
an infant at the start of this case. Though the underlying dependency proceeding involved
all five boys, and though the juvenile court terminated father’s parental rights over all
three of his biological sons, father challenges the termination of his parental rights over
A.T. and Aaron only, not Ashton. A.T. was born in 2011 and is now nine years old, and
Aaron was born in 2014 and is now six years old. Ashton is father’s middle son, born in
2012.
The family has a child welfare history with the San Bernardino County Children
and Family Services (the department) predating this case. The social worker found
several substantiated findings of general neglect going back as far as 2003, as well as
more recent referrals that the department ultimately deemed unfounded. In 2016, the
department opened an investigation of the family in response to referrals alleging the
home was unsafe and unsanitary and the parents were using drugs and engaging in
domestic violence. During the investigation, mother was arrested for a domestic violence
incident that occurred in front of the children, and father was arrested for possessing drug
paraphernalia. The department ultimately closed the investigation because the parents
cleaned the home and participated in services, though father refused to drug test.
The current dependency proceeding arises from a referral the department received
in April 2017 alleging mother was not providing stability or housing for her children.
When the social worker interviewed mother’s oldest son, Alexander (who, again, is not
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father’s biological child), he said father was abusive and would choke and hit him, and
mother did nothing to stop him.
The department then received a referral alleging father was using crystal
methamphetamine in the home in front of the children. The social worker made an
announced visit to father’s home and found it unsafe and unsanitary. There were animal
feces on the ground and mold and mildew throughout the home. There was also an
excessive amount of junk in the backyard that appeared unsafe for children and which the
boys had easy access to. The paternal grandmother was at the home and appeared to be
under the influence of a controlled substance. She told the social worker she was a
recovering alcoholic.
Father denied using methamphetamine but refused to take a drug test. He admitted
he had recently been arrested when the police responded to his house on a domestic
violence call because he had a warrant for unpaid child support.
On May 22, 2017, the department obtained a detention warrant and placed all five
children in the same foster home, then filed dependency petitions on their behalf. The
petitions alleged the children came within section 300, subdivision (b) (failure to protect)
based on father’s drug use, the unsafe and unsanitary condition of the home, and
domestic violence between the parents. The court detained the children and authorized
drug testing for father.
When the social worker met with father the following month, the home was still
unsanitary and appeared to be unsafe. There were rat feces on the floor and dirty dishes
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piled in the sink. Father denied using any drugs. He said he had smoked marijuana every
day since he was 18 but had just stopped at the beginning of the year. He also said he’d
used methamphetamine only a handful of times. He believed mother’s drug problems
were being projected onto him.
At the contested jurisdiction and disposition hearing in August 2017, father pled
no contest to the petition and the court found the substance abuse allegation against him
true, adjudged all five boys dependents, removed them from parental custody, and
ordered them placed in foster care. The court ordered the department to provide
reunification services for both parents.
B. The Six-Month Review Period
Father showed promise at the very beginning of the reunification period. He
participated in counseling and completed a parenting class and a domestic violence
program. He also consistently attended visits. The social worker noted that the boys were
bonded to him, and he interacted with them appropriately. The boys told the social
worker they have a “fun time” at father’s house, and A.T. would “constantly” say he was
eager to go back home. Based on these positive developments, the social worker told
father she believed they could transition to unsupervised visits as soon as he could
demonstrate his home was safe. When she inspected the home in October 2017, however,
it was still unsafe and unsanitary. She gave father another chance to clean the home, and
when she reinspected about a week later, it was free of hazards.
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Father’s visits transitioned to unsupervised, but by February 2018, the home was
once again unsafe and he was proving difficult to reach. The social worker told him that
in order for his sons to be returned home, he must consistently drug test clean, stay in
contact with the department, and keep his home hazard-free.
The department referred him to an outpatient program for substance abuse in June
2017, but by the time of the May 2018 six-month review hearing he still had not enrolled
in the program (despite reminders from the social worker). In addition, he missed a drug
test in December 2017. His next two drug tests were positive for ethanol, a result of his
diabetes. The court terminated mother’s services and continued father’s for another six
months.
C. The 12-Month Review Period
During this reunification period, father remained difficult to contact and
uncooperative on his case plan. He neither drug tested nor participated in an outpatient or
12-step program. He claimed it was hard for him to drug test because he had to use public
transportation.
The boys were doing well in their foster parents’ care. They reported feeling safe
with their foster mother and said they trusted her and would go to her if they needed help.
Visits with father were still going well, too, and had even transitioned to overnights. The
boys also reported that they also felt safe with father.
However, at the 12-month status review hearing in October 2018, counsel for the
children asked the court to order that visits revert back to supervised based on father’s
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failure to address his substance abuse issues or drug test. The court agreed with counsel,
issued new visitation orders, and reminded father that he needed to attend a substance
abuse program and drug test. Father replied that he understood, and the court continued
his services for another six months.
D. The 18-Month Review Period
Things continued in much the same way during this review period as they had in
the previous one. Father failed to drug test and to participate in a substance abuse
program, the boys were still doing well in their foster parents’ care, and visits with father
were still going well, too. The boys reported that they still trusted both their foster family
and their father and would look to either if they needed help. Aaron and A.T. were happy
and doing well in school. Ashton, on the other hand, was exhibiting some negative
behaviors in class. The boys told the social worker they would like to be able to return
home to father. The department recommended that the children remain in foster care with
a permanent plan of returning home.
The court held a review hearing in November 2018. Counsel for the boys objected
to offering father reunification services under the permanent plan, arguing that he had not
participated in services up to that point and there was no indication he would suddenly
start doing so. The court chastised father for failing to make progress on his substance
abuse issues and terminated his reunification services. However, because the court found
father’s visits were going well, it selected foster care with a goal of return home as the
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boys’ permanent plan, and ordered that father receive up to six months of additional
services under that plan.
E. The Permanency Planning Hearing and Termination of Parental Rights
By May 2019, the department had changed its recommendation for the boys’
permanent plan to adoption with their current caregivers and termination of father’s
parental rights. According to the social worker, father continued to make no efforts to
address his substance abuse problem and was still “extremely difficult” to get in contact
with. In a report to the court, the social worker wrote: “For the past year, [I have] stressed
the importance of communication and had notified the father to check in with [me] on a
weekly basis. Due to lack of communication, it has also been difficult for [me] to see if
[he] has been able to maintain a home free of hazards. In addition, . . . even after [being]
told multiple times about randomly testing and participating in his outpatient program,
[he] has failed to participate in his services.” She said father had told her that he didn’t
need substance abuse services.
The social worker reported that although father was still consistently visiting with
the boys, the foster parents had started to take the boys to visits because he had been late
on multiple occasions. And, despite being told by the court at the October 2017 status
review hearing that he could have overnight visits with the boys if he tested clean, father
still had not taken any drug tests.
The boys continued to do well in their foster home, and the foster parents viewed
them as part of their family. The foster parents were in the process of adopting the boys’
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half brother Amon, and they wanted to adopt A.T. and Aaron as well.1 The foster parents
were strong advocates for the boys and ensured their needs were being met. The social
worker reported that she had seen the boys in their current home and “it is evident the[y]
feel safe and bonded.” The foster parents also had two biological children who treated the
boys like siblings.
On May 21, 2019, the court terminated father’s reunifications services and set a
section 366.26 permanency planning hearing. Leading up to the hearing, the department
filed a report supporting its adoption recommendation. The social worker said A.T. and
Aaron were in good physical and emotional health and continued to do well in school.
Aaron had just started preschool and A.T. was starting second grade. A.T.’s first grade
teacher said he was a “fantastic student” who had “excelled” in the class. A.T. told the
social worker he wanted to be an astronaut when he grows up, and Aaron said he wanted
to be a parent.
Father was seeing the boys unsupervised once a week, with the foster parents
facilitating the visits because he still had transportation problems. In June, the foster
parents started to notice the boys were coming back from visits with father covered in
bug bites. They told father about it, but he minimized the issue, and it continued to
happen. The social worker examined the boys and found that Ashton’s back was
“covered” in bites and that A.T. and Aaron had bites as well. As a result, the department
1 Due to concerns over Ashton’s behavior, however, the foster parents wanted to get services for him and continue to be his caretakers for another year before making an adoption decision. 9
filed an ex parte request that father’s visits be reduced to once a month and revert back to
supervised. The juvenile court granted the request on August 28, 2019.
Around that same time, the department received a new referral regarding father.
The referral alleged that Ashton had found a gun on father’s floor during a visit and had
played with it. The referral also alleged that father had bruised Ashton’s upper arm by
grabbing him too hard. The referral was under investigation when the department filed its
report.
In mid-September, A.T. told a social worker that back when he’d had
unsupervised visits at father’s home, there was no running water and he’d gotten sick
because father let him drink multiple cans of soda.
The department’s report also contained an adoption assessment describing the
foster family. The parents had been married for 30 years and had two biological sons (a
22-year-old and an 8-year-old). They had also recently adopted Amon, the boys’ half
brother. They were open to maintaining ongoing contact with the boys’ birth family after
adoption if contact was appropriate and in the boys’ best interests. The boys had been
living with the foster parents for over two years, were affectionate with them,
comfortable in their presence, and called them “mommy and daddy.” When asked how he
felt if he were to stay with the foster parents and not return home, A.T. said he would be
“sad but okay.” The department believed that adoption was in the boys’ best interests.
The permanency planning hearing took place on February 27, 2020. Father argued
the parental benefit exception to terminating his parental rights applied. He testified that
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he had consistently maintained positive visits with the boys. He said his bond with the
boys was “extremely strong,” and they told him every time they saw him that they
wanted to return home.
The court found father had failed to demonstrate the exception applied. It found
there was no evidence of a beneficial parental relationship or that there would be great
harm to the boys in severing their relationship with him. As a result, the court terminated
father’s parental rights and ordered adoption as the boys’ permanent plan. Father filed a
timely notice of appeal.
II
ANALYSIS
Father argues the trial court erred by concluding the parental benefit exception
did not apply. We disagree.
When a parent fails to reunify and the dependency enters the permanency planning
stage, the focus shifts from keeping the family together to the needs of the child for
permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmine
D. (2000) 78 Cal.App.4th 1339, 1348 [“By the time of a section 366.26 hearing, the
parent’s interest in reunification is no longer an issue and the child’s interest in a stable
and permanent placement is paramount”].) As a result, the Legislature prefers adoption as
the permanent plan where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “At
a permanency plan hearing, the court may order one of three alternatives: adoption,
guardianship or long-term foster care. [Citation.] If the dependent child is adoptable,
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there is a strong preference for adoption over the alternative permanency plans.” (In re
S.B. (2008) 164 Cal.App.4th 289, 296-297.)
Once the juvenile court finds a child is adoptable, the parent bears the burden of
proving an exception to terminating parental rights applies. (In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1343.) The parental benefit exception at issue here applies when (i)
the parent has “maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship” and (ii) the court finds that the parent-
child relationship presents a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B)(i).) “[I]t is
only in an extraordinary case that preservation of the parent’s rights will prevail over the
Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78
Cal.App.4th at p. 1350.)
Starting with In re Autumn H. (1994) 27 Cal.App.4th 567, our appellate courts
have routinely interpreted the exception to apply to only those parent-child relationships
the severance of which “would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed.” (Id. at p. 575; In re Jasmine D.,
supra, 78 Cal.App.4th at pp. 1347-1348; In re G.B. (2014) 227 Cal.App.4th 1147, 1161.)
“The Autumn H. standard reflects the legislative intent that adoption should be ordered
unless exceptional circumstances exist, one of those exceptional circumstances being the
existence of such a strong and beneficial parent-child relationship that terminating
parental rights would be detrimental to the child and outweighs the child’s need for a
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stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70
Cal.App.4th 38, 51.)
“[T]he court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
family would confer. If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights are not
terminated.” (In re J.C. (2014) 226 Cal.App.4th 503, 528-529, italics added.)
We review the juvenile court’s finding on the existence of the beneficial parental
relationship for substantial evidence. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)
Whether “the relationship is a ‘compelling reason’ for finding detriment to the child” is a
“‘quintessentially’ discretionary decision” that we review for abuse of discretion.2 (Id. at
p. 1315.)
Here, it’s undisputed that father maintained contact with A.T. and Aaron during
the reunification period and leading up to termination of his parental rights, even if much
of that contact was facilitated by the foster parents. We therefore focus our analysis on
the second element of the exception, that the parent-child bond is so substantial and
2“Appellate courts are divided over the appropriate standard of review for an order concerning the applicability” of the parental bond exception. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have reviewed the decision for abuse of discretion and others for substantial evidence. Other courts have combined the two and taken a hybrid approach, as we do. (Ibid.) Our Supreme Court recently granted review of the issue. (In re Caden C. (2019) 249 Cal.Rptr.3d 520, 444 P.3d 665.) 13
positive that freeing the boys for adoption would be detrimental to their well-being. (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
Father argues he has demonstrated that A.T. and Aaron would suffer detriment if
adopted because they share a very strong bond with him. He points out that, at the
beginning of the reunification period, even the department described his relationship with
his sons as “extremely bonded.” While there is certainly evidence in the record that A.T.
and Aaron enjoyed their visits with father and expressed a desire to return home, the
problem for father (and for many parents at this stage in a dependency), is that the record
contains just as much—if not more—evidence that the boys loved their caregivers and
were happy and comfortable in their home. The boys called the foster parents “mommy
and daddy,” and their half brother Amon had recently been adopted by them. Though the
boys may have been sad at the end of their visits with father, they exhibited no lasting
negative impacts from not being able to live with him. In fact, by all indications, they
were thriving in the foster parents’ care, excelling both academically and emotionally.
And though the boys may have been too young to express their feelings about adoption,
A.T. told the social worker he would be “sad but okay” if he couldn’t return home to
father.
Unfortunately for father, a shared affection between a parent and child is simply
not enough to warrant foregoing an adoption in a safe and stable home once reunification
efforts have failed. And in this case, it bears noting that reunification failed emphatically,
as father made absolutely no effort to treat the problem that led to removal—despite
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being told numerous times for almost two years that the only thing standing between him
and his sons was substance abuse treatment and clean drug tests.
It also bears mentioning that the evidence regarding father’s visits was not
unanimously positive. While there were no issues during supervised visits, there were
issues when visits were unsupervised. A.T. reported not having running water and getting
sick off too much soda. The foster parents reported that the boys would come back from
visits with numerous bug bites. And the department received a report that Ashton had
found a gun at father’s house and father had injured Ashton’s arm. But even if we
overlook these issues, our courts have emphasized time and again that positive visits, on
their own, are not enough to outweigh the permanency benefits of adoption, especially
where the child has developed a bond with the current caregivers, as these boys have.
“No matter how loving and frequent the contact, and notwithstanding the existence of an
‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental
role” in the child’s life.’” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) While the
evidence of a strong bond that father relies on may support an inference that he was an
affectionate figure in the boys’ lives, it falls short of demonstrating he occupied a
parental role.
In short, there is no evidence in this record to support a conclusion that the boys
would be greatly harmed if freed for adoption. And as a result, it was entirely reasonable
for the juvenile court to conclude their relationship with father did not outweigh the
benefits of adoption. At this point the boys have been out of father’s care and in the stable
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care of the foster parents for over three years, which is half of A.T.’s young life. They
deserve the permanency benefits adoption will provide.
III
DISPOSITION
We affirm the order terminating father’s parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.
16
AI Brief
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Holding. The court held that the parental benefit exception to the termination of parental rights did not apply because the father failed to demonstrate that the children would suffer significant detriment from the severance of the parent-child relationship.
Issues
Did the juvenile court err in concluding the parental benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply?
Did the father meet his burden of proving that the parent-child relationship was so beneficial that its termination would cause the children great harm?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“positive contacts and evidence of a bond do not, by themselves, constitute a compelling reason to deprive a dependent child of the permanency benefits of adoption; there must also be evidence that the child will suffer detriment”
“a shared affection between a parent and child is simply not enough to warrant foregoing an adoption in a safe and stable home once reunification efforts have failed.”