Opinion
B301056
05-27-2020
In re OMERO O., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent. v. NOELY A., et al., Defendants and Appellants.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant Noely A. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Francisco M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Melania Vartanian for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK82189A-B) APPEAL from an order of the Superior Court of Los Angeles County. Annabelle G. Cortez , Judge. Dismissed in part and affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant Noely A. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Francisco M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Melania Vartanian for Plaintiff and Respondent.
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Noely A. (mother) appeals from an order terminating her parental rights to her children, Omero O. (born July 2007) and Francisco M. (born April 2015) pursuant to Welfare and Institutions Code section 366.26. After examination of the record, mother's appointed counsel was unable to identify any arguable issues. A letter brief filed by mother does not present good cause that an arguable issue exists. As set forth more fully below, mother's appeal is dismissed. (In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.).)
All further statutory references are to the Welfare and Institutions Code.
In Phoenix H., the Supreme Court held that where an appointed attorney in a juvenile dependency case is unable to find an arguable issue for appeal, the attorney should inform the court that he or she has found no arguable issues for appeal, file a brief setting out the applicable facts and law, and provide a copy of the brief to the parent. The Court of Appeal has discretion to permit the parent to file a brief upon a showing of good cause. (Phoenix H., supra, 47 Cal.4th at pp. 841-846.)
Francisco M., father of the child Francisco M. (father), also appeals from the order terminating his parental rights to Francisco. Father argues that the order should be reversed because the trial court erroneously found that father failed to demonstrate the beneficial parental relationship exception to termination of parental rights applied. We find no error and affirm the order.
BACKGROUND
Initial petition and detention
On June 14, 2017, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of mother's two children, Omero and Francisco. The petition alleged that mother placed Francisco in a detrimental and endangering situation when she transported him as a passenger in a stolen vehicle without proper child restraints. Mother had shoplifted $800 worth of merchandise and had 20 grams of methamphetamine in her possession while the child was in her care.
A social worker met with mother, who was in custody at a police station on the night of her arrest. Mother provided both of the children's father's names and stated that both fathers were in custody. When she was informed that the children would need to be taken into protective custody, mother started swearing and attempted to hit the social worker while holding the child Francisco, then age two.
The detention report, filed the same day, stated that Omero and Francisco had been detained in separate placements. Each child had their own father. Omero's father was incarcerated in Mexico. Francisco's father's whereabouts were then unknown. Omero, then age nine, had been living with his paternal grandparents, who were not interested in caring for Francisco.
The alleged father of Omero did not participate in the proceedings and is not a party to this appeal.
None of the children's parents were present at the June 14, 2017 detention hearing. DCFS was ordered to initiate a due diligence search for father. The children were declared dependents of the juvenile court and removed from their parents' custody. No parent was to have any visits with the children until the parent made contact with DCFS.
Due diligence to locate father
DCFS initiated a search for father and located him at North Kern State Prison in Delano, California. In January 2017, father had been sentenced to 64 months in prison for vehicle theft after being arrested on January 27, 2016. Father had a significant criminal history.
Mother stated she was not married to father and they were not in a relationship. Mother and father were not living together at the time of Francisco's conception or birth, and mother denied that father had ever supported her. However, father was at the hospital for Francisco's birth and signed the birth certificate. After the hospital visit, father made no effort to contact the child or have a relationship with him.
Arraignment hearing
At the July 7, 2017 arraignment hearing, mother and father were both present in custody. The court found father to be Francisco's presumed father. Both of the fathers were found to be nonoffending.
Jurisdiction/disposition report
DCFS filed a jurisdiction/disposition report on July 31, 2017. Mother had a long prior history with DCFS as well as a long criminal history. Father also had an extensive criminal history.
DCFS interviewed Omero who stated that he did not like living with mother. They would often move, go to motels, and did not have a place to live. Sometimes they would live on the streets. Omero had attended five different schools in the last three years. Omero felt that moving around was also not good for his little brother. Omero stated that he did not know his father. When he was told he had to go to court, he said that he did not want to see his mother as she had abandoned him. Omero expressed a desire to remain with his paternal grandparents. He did not like living on the streets with mother and felt scared all the time.
Francisco had been detained in a licensed foster home. Francisco's paternal grandmother (PGM) informed the social worker that father called once in awhile from jail. She stated that father would like the child to be raised by his sister Marlene. PGM was not interested in becoming a placement resource for the child as she did not have the means to care for the child. Father was expected to serve another two years in jail. DCFS recommended that father not be given reunification services because his sentence could exceed DCFS's ability to provide services.
Adjudication hearing
The adjudication hearing was held on July 31, 2017. The juvenile court sustained the section 300, subdivision (b)(1) and (j) allegations against mother, finding that Francisco and Omero were at substantial risk of harm due to the actions of mother. Both minors were declared dependents of the court and removed from mother's custody. Francisco was also removed from father's custody. The juvenile court found that it would be detrimental to place Francisco with father.
Mother and father were granted reunification services and ordered to comply with case plans recommended by DCFS. Mother's case plan was to include drug testing, parenting classes, individual and mental health counseling, and a mental health assessment. The court ordered monitored visits for mother. Father's case plan included a full drug and alcohol program with aftercare, random or on-demand drug and alcohol testing, parenting classes, individual counseling to address case issues including criminal recidivism, and monitored visits. Sibling visits were to occur a minimum of every other week.
Status review reports
DCFS filed a status review report on January 29, 2018. Mother was not in compliance with her case plan as she was again incarcerated. Though she had been released from custody following her June 2017 arrest, a short time later she was arrested for being in possession of a firearm.
Father informed DCFS that he had been moved to La Palma Correctional Facility in Eloy, Arizona on October 24, 2017, and expected he would be there until August 2019. He was on a waiting list for all self-help programs. Father provided a memorandum dated November 21, 2017, from La Palma Correctional Center confirming that he was on a waiting list for parenting classes.
Francisco was doing well with his caregivers, though his behavior regressed after visiting mother in jail. He would become aggressive and possessive of his belongings, wet himself and required more attention. Francisco was having regular sibling visits with Omero every other Friday at a neutral location.
DCFS recommended continuing reunification services. Mother's reincarceration and father's continued incarceration were evidence of high risk and the need for continued services.
At the January 29, 2018, six-month review hearing, the juvenile court continued reunification services.
DCFS filed another status review report on July 30, 2018. Both children were doing well in their respective placements. Mother was released from custody in February 2018, but had not enrolled in any court-ordered programs, disclosed her address to DCFS, or met with the social worker. Visits were scheduled between mother and Francisco on Wednesdays and Fridays. However, mother had not consistently attended. When mother failed to attend visits, Francisco would become upset and shut down, ask to be hugged, and ask the daycare teacher if she loved him. DCFS submitted a mental health care referral in June 2018 to assist the child.
Father reported that he had been moved to Pleasant Valley State Prison in California, and in a letter to DCFS stated that he "was never in any self-help classes due to overcrowding and the fact that I dropped points and was transferred out back to California." Father reported that he was "trying to attend any and all self-help programs offered, unfortunately the prison I am incarcerated at doesn't offer any of these programs." Father stated he would inform DCFS if he was able to enroll. DCFS recommended that family reunification services be continued for mother, but terminated for father.
At the 12-month review hearing on July 30, 2018, the juvenile court found the progress of the parents towards alleviating or mitigating the causes necessitating out-of-home placement was minimal. However, the court granted further family reunification services to both parents.
At the December 17, 2018, 18-month review hearing, the juvenile court terminated reunification services for both parents, finding that their progress towards alleviating or eliminating the causes necessitating placement had been minimal. The court observed that DCFS had provided reasonable services to enable the children's safe return home. A permanency planning hearing was set for June 17, 2019.
Post-reunification period
In June 2019, DCFS reported that Francisco had bonded with his caregivers, who were dedicated to providing a safe and loving home for him. Francisco was meeting his developmental milestones, and the daycare and caregivers were working together to address his behavioral issues. Francisco's caregivers were motivated to proceed with adoption, and there appeared to be no impediments to that goal.
Omero also was doing well and remained with his paternal relatives, who wanted to proceed with adoption. Their adoption assessment had been completed and there were no impediments to adoption.
Father reported that he was scheduled to be released on July 8, 2019. He provided a progress letter dated April 5, 2019, which stated that father was actively participating in a substance use disorder treatment program, and was enrolled in anger management and criminal thinking classes. Father had completed 76.75 of 78 required hours of anger management, and 63.75 of 78 required hours of criminal thinking. Father was actively participating in the classes and engaging in group discussions. Father was seeking feedback and displaying a desire to grow and change his old habits.
Mother continued to have minimal contact with the children and was inconsistent with visitation. Mother would confirm visits but failed to attend. Mother's last visit with Francisco was on May 24, 2019, when she appeared at a sibling visit she was not scheduled to attend. Omero's caregiver reported that after not visiting Omero for two months, mother had come to the home unannounced and was permitted to have a one-hour visit.
In July 2019, mother entered a residential treatment program, which included a 14-day blackout period that prevented her from visiting with the children. After the blackout period, mother requested that visits take place at her facility, but Omero's caregivers were unable to transport him. Mother was not permitted to leave the facility due to behavioral problems.
DCFS recommended that parental rights be terminated. Both Omero and Francisco were bonded to their respective caregivers, who continued to provide the children with stable homes. Both sets of adoptive parents had completed adoption home studies and were approved. Both of the prospective adoptive families were ensuring that sibling visitation continued to occur, which was in the children's best interest. Adoption seemed to be the most appropriate plan for the children.
On June 17, 2019, father was present in court and was served with notice of the section 366.26 permanency planning hearing. Father's counsel asked that DCFS set up visitation for father with Francisco upon father's release. The court ordered that visits should commence if father was released.
On July 29, 2019, father contacted DCFS and informed the social workers that he had been released from prison and wished to commence visits. Father's time with Francisco was scheduled for Wednesdays between 12:00 and 1:00 p.m., with telephone contact on Thursdays between 5:30 and 6:00 p.m. Father attended three scheduled visits prior to the section 366.26 hearing, and missed one of three telephone calls.
Termination of parental rights
At the August 29, 2019 permanency planning hearing, DCFS asked that the court terminate parental rights. Both children had been in their respective placements since June 2017. The children were adoptable and there were no exceptions to termination of parental rights. Mother and father were present and objected. Father objected pursuant to the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). Father argued that he had utilized every opportunity to visit Francisco since he was released from prison, and that the child was bonded to him.
DCFS responded that the beneficial parental relationship exception did not apply. Father's first visit had been less than one month prior to the hearing. Previously, father was incarcerated and was not visiting with the child. The child was bonded to his prospective adoptive parents and DCFS argued it was in the child's best interest that parental rights be terminated.
The court noted that the focus at the section 366.26 hearing is to provide the child with a permanent and stable home, and adoption is the plan preferred by the Legislature. In determining whether the beneficial parental relationship exception to adoption applies, the parent has the burden of showing regular visitation and contact with the child, and that the child would benefit from continuing the relationship. While the court acknowledged that the few visits between father and Francisco had been positive, it found that the level of visitation between father and Francisco was not sufficient for father to meet the burden of showing this exception to adoption.
The juvenile court found by clear and convincing evidence, that the children were adoptable. The respective caregivers were attuned to each child's needs and were committed to providing each of them with a safe and stable home. The court found that it would be detrimental for the children to be returned to their parents and that no exception to adoption applied. The court therefore terminated parental rights, freeing the children for adoption.
Appeals
Mother filed a timely notice of appeal on September 26, 2019. On December 19, 2019, mother's appointed counsel filed a brief pursuant to Phoenix H. Mother's counsel advised mother that she was unable to find any arguable issues to raise in this appeal, and that mother may file a brief with this court within 30 days. On February 20, 2020, this court received a letter from mother.
Father filed a timely notice of appeal on October 25, 2019.
DISCUSSION
I. Mother's appeal
Once the juvenile court terminates reunification efforts and sets a juvenile dependency matter for a section 366.26 hearing, the court's focus is no longer on reunifying parent and child. Rather, the court's focus shifts to the child's need for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B). Mother did not argue at the section 366.26 hearing that any exception to termination of parental rights was applicable.
In her letter to this court, mother states that she has been sober since July 11, 2019. She completed 90 days in an inpatient rehabilitation center and presently attends an outpatient wellness center. Mother admitted that she has little contact with Francisco but stated that she speaks with Omero on a daily basis and sees him every weekend. Mother requested that she be able to share custody with Omero's caregivers.
The letter brief filed by mother does not present good cause that an arguable issue exists. Mother does not claim that the juvenile court erred in finding the children were likely to be adopted or in failing to apply any of the exceptions to termination of parental rights. Since mother does not raise any issues underlying the juvenile court's order terminating her parental rights, mother has failed to establish good cause requiring supplemental briefing. (In re Phoenix H., supra, 47 Cal.4th at pp. 841-842.) Mother's brief will be marked as received but not filed. Mother's appeal is dismissed.
II. Father's appeal
Father argues that the juvenile court erred in terminating his parental rights as he was a nonoffending parent who did all that was in his power to foster the parent-child bond. For the reasons set forth below, we find that the juvenile court did not err in determining that father failed to show the beneficial parent-child relationship exception to termination of parental rights.
A. Applicable law and standard of review
Once a juvenile court has ended reunification services and determined that a child is adoptable, the court is required to terminate parental rights unless it finds an applicable exception. (§ 366.26, subd. (c)(1).) One such exception permits the court to decline to terminate parental rights where termination would be "detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The parent bears the burden of proving that the exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) The parent must show more than "some benefit" from continuing visitation with the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.) "Interaction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) However, "frequent and loving" contact between a parent and child is not enough. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.)
Instead, the parent must show that "the relationship 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 Autumn H., supra, 27 Cal.App.4th at p. 575.) "In other words, the 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." (Ibid.) Factors the court should consider include "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (Id. at p. 576.)
Courts of Appeal have applied different standards of review regarding the exceptions to termination of parental rights set forth in section 366.26, subdivision (c)(1). Several courts have applied the substantial evidence standard of review. (See In re Naomi P. (2005) 132 Cal.App.4th 808, 824; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 (Brandon C.).) Others have applied an abuse of discretion standard. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Recently, courts have applied a dual standard to review decisions on the section 366.26, subdivision (c)(1)(B)(i) exception. The determination as to whether a beneficial parental relationship exists is reviewed for substantial evidence, while the determination of whether the relationship constitutes a "'compelling reason for determining that termination would be detrimental to the child'" is reviewed for abuse of discretion. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) We note that "[t]he practical differences between the two standards of review are not significant." (Jasmine D., at p. 1351.) Both require deference to the trial judge. (Ibid.)
The Supreme Court is currently reviewing the appropriate standard of review regarding the beneficial parental relationship exception to adoption. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.) Under the circumstances, we evaluate the juvenile court's decision under both standards.
B. The record supports the juvenile court's decision that father did not meet his burden of proving the beneficial parental relationship exception to termination of parental rights
At the time of the section 366.26 hearing in August 2019, Francisco was four years old and had been with his foster parents since June 2017. The caregivers had an approved adoption home study and were committed to providing a safe and loving home for Francisco. Francisco was happy and meeting his developmental milestones. The caregivers were involved in the child's mental health services and ensured he was able to attend his sibling visits.
Father was not involved in the child's life. Father had contact with Francisco only during his first four months of life, and made no attempt to visit with the child after that time. Father was not a custodial parent and was incarcerated for much of Francisco's life. Father has an extensive criminal history. By the time of father's release from prison in July 2019, Francisco's caregivers had been providing a stable home for Francisco for over two years. Father had only three visits with Francisco and participated in two out of three telephone calls prior to the section 366.26 hearing.
Father's three visits with Francisco during the two-year pendency of the juvenile court proceedings did not constitute "regular visitation and contact" pursuant to section 366.26, subdivision (c)(1)(B)(i). Further, the juvenile court did not err in determining that, under the circumstances, any incidental benefit to Francisco of continuing his relationship with father was outweighed by the benefit Francisco would gain in a permanent home with his prospective adoptive parents with whom he has resided for over two years and who have been committed to providing him a loving home.
Father cites In re Amber M. (2002) 103 Cal.App.4th 681, 690 (Amber M.) for the proposition that the failure to reunify does not establish the absence of a parental relationship. In Amber M., three young children had been out of their mother's custody for more than two years. A grandmother desired to adopt the girls and a grandfather desired to adopt the boy. The juvenile court terminated parental rights, but the Court of Appeal reversed, stating that mother not only maintained regular visitation, but she met her burden of showing a beneficial relationship. (Id. at p. 689.) A psychologist had conducted a bonding study and found that one of the children shared a "primary attachment" with mother that would be detrimental to sever. The child's therapist agreed that it was important for the parental relationship to continue. (Id. at pp. 690-691.)
The matter before us is distinguishable. Father has not maintained regular visitation with Francisco. Further, father has failed to show a primary attachment between Francisco and himself, and has presented no opinions from any professional who attested to the type of strong bond that existed between the parent and the children in Amber M. In fact, the record shows that father has no parental relationship with Francisco at all.
Father next cites Brandon C. In Brandon C., the mother attended weekly monitored visits with her children and regularly provided them with "'comfort, nourishment or physical care.'" (Brandon C., supra, 71 Cal.App.4th at p. 1537.) Although mother's visitation was limited, the Brandon C. court determined that the benefit to the children "must be considered in the context of the very limited visitation mother was permitted to have." (Id. at p. 1538.) In contrast to the matter before us, the mother in Brandon C. visited her children nearly every week throughout the dependency proceeding. Father in this matter has not showed such consistent visitation.
Finally, father cites In re Casey D. (1999) 70 Cal.App.4th 38, for the proposition that the court must not "set an impossible standard nor mandate day-to-day contact." (Id. at p. 51.) However, the Casey D. court affirmed the juvenile court's finding that the parent in that case had not proved the parental relationship exception to termination of parental rights. The parent had an enjoyable, and positive relationship with the child, but the relationship was more that of a "friendly visitor" than a parent. (Id. at pp. 45, 52-53.) The juvenile court in this matter did not set an impossible standard nor mandate day-to-day contact. Instead, it appropriately evaluated father's minimal contact with the child and determined that the benefit of adoption would outweigh any benefit from maintaining the parental relationship.
DISPOSITION
Mother's appeal is dismissed. The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT