Opinion
NOT TO BE PUBLISHED
APPEAL from an Order of the Superior Court of Los Angeles County No. CK57919. Albert J. Garcia, Commissioner.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Principal Deputy County Counsel, for Los Angeles County Department of Children and Family Services.
Anna L. Ollinger, under appointment by the Court of Appeal, for Aaron A. and Gabriel K., Minors.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Respondent Milton A.
ZELON, J.
Los Angeles County Department of Children and Family Services (Department) and minors Aaron A. and Gabriel K. appeal the dependency court’s orders selecting guardianship as the permanent plan after finding under former Welfare & Institutions Code section 366.26, subdivision (c)(1)(A) that Father Milton A. had maintained a beneficial relationship with the children, and the order denying rehearing on the section 366.26 orders. We reverse the orders, and remand to the dependency court with directions to conduct a new section 366.26 hearing.
The substantive provisions of Welfare & Institutions Code section 366.26, subdivision (c)(1)(A) are now found at section 366.26, subdivision (c)(1)(B)(i), effective January 1, 2008. (Stats. 2007, c. 583 (S.B.703), § 28.5 [rewriting section 366.26, subdivision (c) to make nonsubstantive changes].) All references herein, unless otherwise noted, are to the Welfare & Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 2, 2005, a few days after Gabriel was born with opiates in his system, the Department filed a petition under section 300 seeking to declare him and his two-year-old brother Aaron dependents. The petition alleged that Shyla K., the children’s mother, had a history of drug abuse and was a current user of cocaine and opiates and Father had an extensive criminal history. Mother denied using drugs and refused to disclose Aaron or Father’s whereabouts. On February 2, 2005, the dependency court ordered Gabriel detained and placed in shelter care, and denied the parents visitation until they provided the Department with their whereabouts. On February 7, 2005, the court issued a protective custody warrant for Aaron; the following day, Mother relinquished Aaron to the Department.
The Department’s jurisdiction and disposition report stated that DCFS had been unable to locate Father and Mother. Gabriel, who was premature, remained hospitalized. The Department recommended that the dependency court order no more than six months of reunification services due to the parents’ drug use and the age of the children.
On March 2, 2005, the dependency court sustained the petition after receiving Father and Mother’s pleas of no contest. The court ordered monitored visitation of not less than three times per week for three hours each visit; parenting classes for Father; drug counseling and testing for Mother; and an aftercare program for Mother. The court set August 31, 2005 for the six-month review hearing.
On July 22, 2005, the Department moved ex parte for an order that Aaron participate in play therapy to address aggression and anger management issues. The Department expressed concern about Gabriel’s safety because the two children had recently been placed together in an adoptive home. On July 22, 2005, the court granted the Department’s request and ordered play therapy.
The Department’s status review report prepared for the August 31, 2005 review hearing stated that the children were in a prospective adoptive placement and aside from Aaron’s aggressive behaviors, the children were otherwise doing well. The Department had been providing one-hour weekly visitation at the Department’s offices for the parents, who had not taken advantage of referrals for visitation monitors. However, the parents were regularly attending the visits. The Department reported that on May 18, 2005, Mother enrolled in a program at El Proyecto and complied with attendance rules; out of eight random drug tests, one was dirty for methamphetamines. In July 2005 Father signed up for parenting classes at El Nido Family Services; Father and Mother attended one class at El Nido, but did not return. The Department recommended termination of reunification for both parents because Father had not complied with his case plan, and Mother had only marginally complied with hers, and recommended termination of parental rights and adoption for the children. At the continued September 30, 2005 hearing, the court ordered the matter continued for a contested hearing October 26, 2005.
On October 26, 2005, the Department reported that Mother had relapsed on October 20, 2005 due to stress and the fear of losing her children; Mother reported the relapse herself to the Department. The Department’s report prepared for the continued hearing stated that the children remained placed in a confidential prospective adoptive placement. Although Father had signed up for parenting classes, he had missed six classes and would have to repeat the latest session, and would not complete the classes until late December. The Department recommended no further reunification for both parents.
At the hearing, the court found Mother had made sufficient progress to justify continued reunification, and over the Department’s objection, extended reunification for both parents and set the 12-month review hearing for March 1, 2006.
On December 12, 2005, the Department applied ex parte for liberalized visitation. Mother had maintained sobriety by submitting five clean tests since her last dirty test on October 20, 2005. She was still unemployed. Father, who was employed full time, had regularly been attending his makeup parenting classes and was expected to graduate December 12, 2005. The Department expressed concerns over the parents’ interactions with one another, and Father’s inability to manage his temper. The court granted the Department’s request; the new visitation program consisted of one hour of supervised visits for Mother at the Mommy and Me program, plus an additional one hour of unmonitored visitation for both parents at the McDonald’s across the street from Mother’s program. The Department required both parents to be present during unmonitored visitation.
The Department’s status review report for the March 1, 2006 12-month review hearing stated that the children remained in their pre-adoptive placement. Aaron was receiving therapy and Gabriel had been referred to Regional Center because of delays in gross motor development. Mother had relapsed and submitted a dirty test on December 30, 2005. Father claimed to have completed his parenting class, but had not provided proof to the social worker. The Department provided a very detailed report on the parents’ visitation and interaction with the children. The parents had been visiting weekly for one hour at the Department’s offices; Mother consistently attended, but Father’s visits were sporadic. The social workers monitoring the visits were concerned about Father’s limited interaction with the children and his lack of interest in them. During visits, Father would frequently leave the visitation room or leave the Department’s offices.
On one occasion, Aaron called his prospective adoptive mother “Mommy,” and Father said, “that is not your mom, that is your fake mom.” After the social worker asked Father to refrain from speaking of the foster mother in that manner, Father stated, “I don’t care, I don’t care . . . you took my kids from me, I don’t care. . . . That’s not his mom and I am not going to lie. If [Aaron] was calling somebody ‘daddy’ I would beat him up.”
At a December 2005 visit, Father spent much of the time reading a book and was “extremely disengaged, which was not new behavior.” Aaron unsuccessfully attempted to get Father’s attention while he was reading. Father called Gabriel a “crybaby” and said he was “spoiled.” When in Father’s arms, Gabriel became upset and looked to Mother, who was able to calm him down. Father would make negative comments about the Department or the prospective adoptive mother. Mother’s conduct with Gabriel was appropriate.
In December 2005 and January 2006 some visits were missed or cancelled due to the holidays and transportation difficulties. After learning of Mother’s relapse in late December and because of Father’s inability to handle the children on his own, the Department reinstituted monitored visitation at its offices. During a visit in early January, both children were sick with colds, yet Father showed no attention to Aaron. The Department was concerned about Father’s lack of warmth towards the children and his lack of engagement with them. The Department believed Father was not implementing what he had been taught in his parenting classes, and this had a negative affect on the children’s emotional well-being. In conclusion, the Department noted that the parents had been unable to progress satisfactorily in the compliance with the case plan in spite of over 12 months of reunification services.
At the March 1, 2006 hearing, the court set the matter for contest, continued it to March 21, 2006, and ordered the Department to prepare a supplemental report containing a status update on the parents’ compliance with reunification.
The Department’s report stated that the children remained placed in a prospective adoptive placement. Aaron was doing well in therapy and handled his anger well. Gabriel was in the process of being evaluated for Regional Center services, but the Department believed he would qualify. The Department had ruled out placement with Father’s mother, Ms. Davis. The Department noted that Father had required two sessions to complete his parenting courses. The Department was concerned about Father’s parenting skills, as evidenced at his visits with the children; it did not appear to the Department that Father integrated anything he had learned from his classes into his interactions with his children. In conclusion, the Department stated that it could not recommend further reunification services because the parents had not made sufficient progress.
At the March 21, 2006 hearing, the court took testimony from the social worker, who did not believe further services were in the best interests of the children because there was no guarantee Mother would complete her drug treatment program. The parents had been visiting once weekly with the children, with Mother spending most of the time with the children. Father spent much of the time reading a book. Father told the social worker he had not separated from Mother and that it was not his intention to do so.
The court found the parents had been complying with the reunification plan, and ordered continued reunification services. The court warned the parents that if they were not in compliance by July 28, 2006, the 18-month reunification period would have elapsed. The court found the parents were not visiting enough and ordered minimum visitation of three hours three days a week. The court set July 27, 2006 as the 18-month review hearing and ordered the Department to prepare an adoption assessment.
The Department’s report prepared for the hearing stated that Father had been cooperative with the Department and complied with court orders, although he was residing with Mother. The parents, however, were visiting regularly but Father was relying on Mother to care for the children at the visits. Gabriel was receiving Regional Center services, and Aaron still needed to work on self-regulation. Father had become more attentive to the children during visits, no longer read a book, and had been hugging, holding, kissing and feeding the children. However, he preferred watching Mother interact with the children rather than engaging in his own interaction, and continued to leave the visitation room for extended periods of time. He did not speak much to the children, and showed little warmth to them. Aaron would initiate conversation with Father, but Father would offer little response. In early April 2006, Mother had been asked to leave the program at El Proyecto because she had missed a drug test and unexcused absences. She refused to enter another program because she had “already done 11 months.”
During March, April, and May, the parents made up for several missed visits. During a visit in June, Father told the social worker he did not want to visit the children alone. He left the room during another visit. There were two visits in July, during one of which Father remained disengaged from the children. After about 25 minutes, Father left the room and never returned. The Department noted that the parents had failed to separate; Mother had failed to drug test on several occasions; neither parent had pursued the option of more frequent visitation; and Mother had indicated she did not want to resume drug testing. The Department therefore recommended termination of reunification services.
The Department’s report prepared for the continued August 31, 2006 18-month review hearing stated that the parents had continued to jointly visit the children. The children continued to reside at the home of their prospective adoptive parent. The Department was concerned that if the children were returned to Father, he would allow Mother unlimited access to the children. During their July 2006 visits, Mother was physically affectionate and very interactive with the children. Father was less interactive and was content to watch Mother interact, although Father had begun to make attempts to discipline the children and was more affectionate. However, Father was not consistent and would disengage during the visits. During their August 2006 visits, Father and Mother visited the children separately on two occasions. Father participated more actively during his visits, and made more consistent attempts at discipline.
The Department stated that Father was in compliance with court orders, but reported that Father lacked the skills to provide his children with healthy development. Father had recently moved in with his mother (Ms. Davis), whom the Department had previously rejected as a potential caregiver. Further, Ms. Davis had been the subject of a Departmental proceeding for physical abuse. Because of a lack of information relating to Ms. Davis’s previous case, the Department could not accurately assess the potential safety of the children in the home. The Department recommended termination of reunification.
At the August 30, 2006 hearing, the social worker testified that she had monitored three separate visits for Father. She noted that his interaction with the children had improved since she had taken on the case. At the last visit, however, she could sense that Father was exasperated because one child was crying and the other was yelling. Father had difficulty balancing his attention between them. The social worker did not recommend releasing the children to Father because she did not believe his living arrangement with his mother was appropriate, and she did not know whether he would be able to provide for Gabriel’s needs as a client of Regional Center services.
Father testified that he did not know what Gabriel’s needs were, although he understood his problems were caused by Mother’s drug use. Father had not attended physical therapy with Gabriel, did not know what medication Gabriel was taking, and did not know that Gabriel was not yet using utensils to eat. Father did not yet have daycare arranged for the children.
The court found that it would be detrimental to return the children to the parents and that the Department had made reasonable efforts to reunite the children with the parents. The court advised Father, “[t]he problem with your portion of the case, sir, is compliance is not sufficient. You can comply with something, but you really haven’t gotten anything out of it, and you’ve shown that. Your lack of interest, your failure to visit alone, your failure to know things about your children show that you are not ready to take these children now.” The court also expressed concern with the fact Father had not separated from Mother and he would give her access to the children. The court set December 20, 2006 as the selection and implementation hearing pursuant to section 366.26.
Father petitioned this court for extraordinary writ review of the order setting the selection and implementation hearing. We denied his petition on December 11, 2006. (In re Aaron A. (December 11, 2006, No. B 193484) [nonpub. opn.].)
The Department’s report prepared for the October 6, 2006 review hearing stated that the adoption home study for the caregiver had been approved on October 18, 2004. The children were bonded with the caregiver and the placement was appropriate.
The Department’s section 366.26 report stated that the parents were visiting weekly, separately, for one hour. Aaron was “rowdy” during visits and the parents had trouble controlling him. The prospective adoptive parent had bonded with both children and was interested in adopting them. She had been caring for them for a year and a half; the children were comfortable with her, and demonstrated anxiety when she was not in sight. The caretaker understood the children’s needs and was able to attend to them.
Gabriel had delayed speech, had asthma, and needed to use a nebulizer daily.
At the December 20, 2006 hearing, Father informed the court that he and mother were not living together. Concurrently, Father filed a petition under section 388 seeking to have Gabriel and Aaron placed with him. As grounds for the placement, he alleged regular visitation and completion of his court-ordered programs. The court set the matter for hearing on January 23, 2007.
The Department’s report prepared for the January 23, 2007 hearing stated although Father had completed his court-ordered parenting program and had visited regularly, the Department was concerned because he was living with his mother, who had a previous case with the Department that was open from 1986 to 1991 based on sustained allegations of physical abuse. Father’s employment history was sporadic. The Department believed the children would be adopted if parental rights were terminated.
The Department’s report prepared for the contested section 366.26 hearing and the hearing on the section 388 petition stated that Aaron addressed Father as “Milton,” but appeared eager to see him and “appear[ed] to have some understanding that [Milton] was his father.” Aaron had been acting out and expressing confusion about the dependency proceedings. In spite of the fact that Father had completed a parenting class, the Department had lingering doubts about his ability to parent because only recently had Father begun to engage with the children during visits.
At a January 2007 visit, when Aaron misbehaved, Father waved a fist in Aaron’s face. In February 2007, when Gabriel was ill and missed a visit, Father did not follow up to inquire about Gabriel’s well-being. Gabriel required a daily nebulizer mask for his asthma, and was a picky eater and required a supplement for sufficient nutrition. The Department was dubious that Father could provide the level of care the children needed. The matter was continued three times, to April 11, 2007, June 5, 2007, and June 28, 2007.
At the June 28, 2007 hearing, the court first heard testimony on the contested section 388 petition. The social worker testified that she had been on the case for a year, Father had completed his parenting classes, had visited regularly, and had showed improvement in the quality of his visits. The children seemed bonded with Father. At a visit in late March 2007, Father raised his fist in Aaron’s face. Otherwise, although the social worker would not consider Father’s behavior inappropriate, he did not seem to know how to discipline the children. Aaron would run to Father and say “Milton” or “Daddy” and hug him, but Gabriel was less bonded to Father. The children’s case had been opened in February 2005, but as of June 2007, Father’s visits were still monitored.
The adoption social worker testified that she had observed one visit with Father and the children, which was on May 11, 2007. Father and Aaron were standing and Aaron was pulling on Father’s shirt. Father took Aaron to the couch, held him with both of Aaron’s arms, sat him down, and asked Aaron if he was retarded. The social worker intervened and asked whether Aaron wanted Father to read him a book because she was concerned about Father’s affect, which was very flat. Father was not smiling or showing any interest in the child, and had looked angry when he asked Aaron if he was retarded.
Father testified that he would take care of the children if they were returned to him. Because he worked, he would put them in daycare, but he did not know where. “I don’t have a plan right now because you guys [are] playing all of these games, like dragging this out. Yeah, I have a plan.” Father claimed to be working, but would not say where. He stated he was separated from Mother, and denied seeing her. If the children were released to him, he would follow court orders regarding visitation with Mother. Father knew that Gabriel used a nebulizer and was a client of Regional Center, but did not know what services Gabriel received. Father knew that Gabriel received physical therapy because “there[ was] something wrong with him,” but did not know the details of Gabriel’s condition. Although Father had taken parenting classes, he did not remember what he had been taught because “I don’t need a parenting class to teach me how to discipline my children because I already know how to do that.” Father stated he would not physically abuse his children.
Father requested the children be returned to him, arguing that he had completed his parenting classes, was bonded to the children, and had been visiting on a regular basis. He contended his interactions were appropriate and had been improving, except for one occasion when he waved his fist in Aaron’s face. The Department argued that Father had a serious anger management issue and had not learned what he needed to learn from his parenting classes. Further, the Department pointed out that Father had no serious plan for the children’s care, could not control his anger towards a four-year-old in a setting with a social worker, and had not yet progressed to unmonitored visitation.
The court stated that it found Father had not learned how to control himself. However, the court found that the benefits exception had been met. “I am stuck with the .26 now, but the exception has been made as far as I am concerned in this testimony. This is a carryover to the .26. I tried to help him. So that puts me in the posture of denying the 388. Put it all on the .26 then. And the testimony is going to be the same. It’s not going to change. It is going to go. It will either be legal guardianship or long-term foster care at this point. You all realize what’s happened. It doesn’t need to be triple testimony for this thing.” The court stated its intention to give Father unmonitored visitation and to increase Father’s visits, and denied Father’s section 388 petition.
At the parties’ request, the court accepted all of the testimony on the section 388 petition for purposes of the section 366.26 hearing. The Department requested the court to terminate parental rights because the showing required to satisfy the beneficial relationship exception had not been made. The Department argued Father did not know anything about the children’s needs and had made no effort to learn anything from the social worker. Father argued the evidence established he was bonded with the children: he had visited regularly, there was appropriate interaction between him and the children, and Father had availed himself of the services offered to him. The children argued that Father, after two years, was still receiving monitored visits; he had not contacted Regional Center regarding Gabriel’s services; at visits, the children went to Mother for comfort; only during the last six months had Father’s visits improved; the only bond demonstrated was that Aaron was happy to see Father and they had a good time together during their monitored visits.
The court found by clear and convincing evidence it was likely that the children would be adopted, but that it would not terminate parental rights because Father had established a bond sufficient to invoke section 366.26, subdivision (c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A)). The court ordered unmonitored visits for Father. Both the Department and the children objected to unmonitored visitation. The court advised Father that he was not to visit the children with Mother, and ordered two hours of visitation twice a week with discretion to liberalize.
On June 29, 2007, the Department filed a petition for extraordinary writ review challenging the dependency court’s order of unmonitored visitation. On July 12, 2007, the Department filed an amended notice of appeal challenging the grant of unmonitored visitation, and on August 2, 2007, filed a supplemental notice of appeal appealing the denial of rehearing. On August 2, 2007, we ordered that, pending disposition of this appeal or further order, the dependency court’s visitation order was stayed. On August 8, 2007, we dismissed the Department’s writ petition due to the stay of the visitation order.
On June 29, 2007, the court appointed the foster mother the children’s guardian and issued letters of guardianship. On July 8, 2007, the Department sought rehearing under section 252; the court denied the request on July 20, 2007.
DISCUSSION
The Department and the children argue that Father did not meet his burden of showing a beneficial relationship sufficient to thwart adoption or that termination of parental rights would harm the children, and that the dependency court erred in selecting guardianship as the permanent plan; they also argue that the dependency court erred in failing to grant the Department’s application for rehearing. The Department asks this court to reverse the orders of the trial court; the children ask this court not only to reverse those orders, but to direct the dependency court to enter an order terminating parental rights and freeing the children for adoption. We reverse, and direct the dependency court to conduct a new section 366.26 hearing to consider whether the benefits of a continued relationship with Father outweigh the children’s interests in being placed in a stable, adoptive home.
At the section 366.26 hearing, the dependency court is required to select and implement a permanent plan. Where a family cannot be reunified, the statutory preference is for terminating parental rights and placing the child in an adoptive home. (§ 366.26, subd. (b)(1).) Adoption is the preferred placement because it offers the prospect of a secure, permanent home. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Subdivision (c)(1)(B)(i) of section 366.26 creates an exception to the preferred permanent plan of adoption where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” To invoke the exception, a parent has the burden to show that he or she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, and the termination of parental rights would be detrimental to the child. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
However, the statute does not further define the sort of relationship that will trigger the beneficial relationship exception. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) Courts have interpreted the exception to require a relationship that promotes the child’s well-being to a degree that outweighs the benefits the child would gain from a permanent home with new adoptive parents, such that severing the natural parent/child relationship would deprive the child of such a substantial, positive emotional attachment and the child would be greatly harmed. Thus, in evaluating whether to apply the beneficial relationship exception, the court must balance the parent’s regular visitation with the child against the benefits to be obtained if the child were to be placed in a permanent, adoptive home. (In re Helen W. (2007) 150 Cal.App.4th 71, 81 [applying two-prong balancing test]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [same].) The court must balance “the strength and quality of the natural parent/child relationship” against “security and sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Helen W., supra, 150 Cal.App.4th at p. 81.)
“The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (Autumn H., supra, at pp. 575-576.) With respect to the need for day-to-day contact, In re Casey D. (1999) 70 Cal.App.4th 38 stated the beneficial parent-child concept described in Autumn H. was “a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. . . . 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 stable and permanent home that would come with adoption. That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (Id. at p. 51.) The parent must show more than frequent and loving contact and must be more than a friendly visitor or friendly nonparent relative. (In re Helen W., supra, 150 Cal.App.4th at p. 81.)
Here, the records indicates that the dependency court relied on the testimony relating to Father’s section 388 petition in making its ruling on the beneficial relationship exception. However, under Autumn H., the dependency court is required to balance the nature of the children’s relationship with Father against the benefits to them of adoption. Because the court relied on the section 388 testimony, the record before us, although it would support the findings made, does not indicate whether the dependency court considered and balanced the remaining factors under Autumn H. We remand for a new section 366.26 hearing to consider these remaining factors to determine whether the beneficial relationship exception applies. In holding that hearing, the dependency court may consider all developments subsequent to this appeal, and is not limited to events occurring prior to the entry of its June 28, 2007 and June 29, 2007 orders.
Because we reverse and remand for a new hearing, we need not consider arguments relating to its denial of the Department’s petition for rehearing. Nor do we evaluate whether the grant of unmonitored visitation to Father was proper, as that issue will necessarily be revisited on remand.
DISPOSITION
The orders of the superior court of June 28, 2007 and June 29, 2007 are reversed. The matter is remanded for the dependency court to conduct a new section 366.26 hearing and to make appropriate orders concerning visitation in accordance with this opinion. Pending that hearing, the stay of the order for unmonitored visitation shall remain in effect.
We concur: PERLUSS P. J., WOODS J.