In re R v. CA5 ( 2021 )

Filed 4/22/21 In re R.V. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re R.V., a Person Coming Under the Juvenile
Court Law.
MERCED COUNTY HUMAN SERVICES F081708
AGENCY,
(Super. Ct. No. 19JP-00105-A)
Plaintiff and Respondent,
v. OPINION
MARCO V. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and
Appellant T.B.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant Marco V.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
Appellants Marco V. (father) and T.B. (mother) appealed from the juvenile court’s
order terminating their parental rights (Welf. & Inst. Code, § 366.26)1 as to their now
20-month-old daughter, R.V. After reviewing the juvenile court record, the parents’
court-appointed counsel informed this court they could find no arguable issues to raise on
the parents’ behalf. This court granted the parents leave to personally file a letter setting
forth a good cause showing that an arguable issue of reversible error exists. (In re
Phoenix H. (2009) 47 Cal.4th 835, 844.)
Appellants filed letters but failed to address the termination findings or orders or
set forth a good cause showing that any arguable issue of reversible error arose from the
section 366.26 hearing. (In re Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently,
we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Newborn R.V. (the baby) was taken into protective custody in August 2019 by the
Merced County Human Services Agency (agency) because of her parents’ history of
domestic violence and violent behavior. Two months before, police responded to a report
of a domestic disturbance at their apartment, which resulted in father being injured and
mother arrested. The baby was placed with a nonrelated extended family member in
Merced County.
The parents have a significant history with child protective services. When the
baby was born, mother had an open child dependency case regarding another daughter
who was removed as a newborn in April 2018 after mother and the daughter tested
positive for methamphetamine. Mother also had untreated mental health and domestic
violence problems. The juvenile court provided her reunification services but terminated
them at the 18-month review hearing in November 2019 and returned the daughter to her
father’s custody with family maintenance services. The court dismissed its dependency
1 Statutory references are to the Welfare and Institutions Code.
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jurisdiction in June 2020. Previously, mother lost custody of her 10-month-old son in
September 2015 after he sustained fractures of the tibia and fibula in both legs and
multiple bruises on his body. Mother could not explain how he sustained the injuries.
She later provided information that led to the arrest of a boyfriend. She was provided
mental health and substance abuse services but did not complete them. The juvenile
court terminated reunification services in June 2016 and parental rights in October 2016.
Father has seven other children, none of whom are in his care. In 2009, the agency
removed his daughter and he was offered reunification services. In February 2011,
visitation was terminated after he threatened to abduct the child. In April 2011,
reunification services were terminated and in September 2011, his parental rights were
terminated.
The agency filed a dependency petition seeking the baby’s removal under
section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Under both
subdivisions, the agency alleged there was domestic violence in the home; the mother had
an open family reunification case for another child and was not meeting her case plan
objectives; and both parents had significant child welfare history in which parental rights
had been terminated after they received reunification services.
The juvenile court ordered the baby detained and conducted a contested
jurisdictional/dispositional hearing on November 20, 2019. It was elicited during
testimony that the parents engaged in domestic violence the night before the hearing.
The court adjudged the baby a dependent child and denied the parents reunification
services for failure to reunify with the baby’s siblings and remedy their drug abuse and
domestic violence issues and, in mother’s case, her mental health issues. (§ 361.5,
subd. (b)(10) & (11).) The court set a section 366.26 hearing.
The agency recommended the juvenile court terminate parental rights. The baby
was physically healthy and there were no concerns about her development or mental or
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emotional status. She appeared to have a strong bond with her caretakers who wanted to
adopt her.
Mother wanted custody of the baby. She told the social worker she was taking
classes, was half-way through an anger management program and was reading the Bible
every night.
The parents visited the baby and visits generally went well. Their interaction with
her was appropriate. They sang to her and rocked her. However, there were two
incidents that raised concern. At a visit in January 2020, the social workers heard father
yelling in the lobby at the visitation center. Law enforcement had to be called because of
his aggressive behavior. His visits were subsequently scheduled on a date and location
where a deputy was available. During a visit in February 2020, father asked for
assistance, claiming mother was out of control. He said he was leaving her, and she was
upset.
The juvenile court conducted a contested section 366.26 hearing on July 29, 2020.
Only father testified. It was a “lie” that he and mother could not reunify with the baby.
He faulted county counsel for removing the baby from their custody. He faulted his trial
attorney in his previous dependency case for causing him to lose custody of his daughter.
He failed to reunify with her because the court did not do its job. He and mother were
under stress and he experienced depression in the last year.
Counsel for the parents argued for legal guardianship instead of adoption,
contending the restrictions imposed by the pandemic prevented them from demonstrating
their ability to raise the baby. Minor’s counsel concurred in the agency’s
recommendation to terminate parental rights, adding the parents failed to establish any of
the exceptions to adoption applied.
The juvenile court found by clear and convincing evidence the baby was likely to
be adopted and that none of the exceptions to adoption applied. The court terminated
parental rights.
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DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible
error or other defect and present argument and authority on each point made. If the
appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th
952, 994.)
At a termination hearing, the juvenile court’s focus is on whether it is likely the
child will be adopted and if so, the court is required to order termination of parental
rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely
to be adopted, the juvenile 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).
Neither parent argued at the contested hearing that any of the exceptions to
adoption applied. The most commonly applied, the beneficial parent-child exception,
requires the parent to show he or she maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship. (§ 366.26,
subd. (c)(1)(B)(i).) Although the parents regularly visited the baby, they never had
custody of her, and she bonded to her care providers. Consequently, they could not show
that severing their parental rights would be detrimental to her.
Nor do the parents contend the juvenile court’s findings and orders from the
termination hearing are error. Mother claimed to have two years, eight months and
seven days of sobriety when she wrote her letter, apparently in December 2020. She
completed the services she was required to complete in her other daughter’s case, but the
social worker did not like her. She asks for a chance to prove she is a better mother.
Father states that he and mother have stable housing and he is employed. When he met
mother, he had seven years of sobriety. He has been involved in Christian ministry for
many years, assisting the elderly in his community and helping with food drives. Giving
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birth to the baby was part of their plan to have a family. They were prepared for her
arrival home with everything a baby would need. He believes the agency’s removal of
the baby from their custody is a heartless act of gross negligence.
By the time a dependency case reaches the stage of a section 366.26 hearing, there
are few decisions left to make. If the child is likely to be adopted, the juvenile court must
terminate parental rights unless, as we mentioned above, the parent establishes that one of
the exceptions to adoption applies. Here, the baby was likely to be adopted and none of
the exceptions applied. Consequently, the court had no choice but to terminate parental
rights.
Since appellants failed to raise any arguable issues from the termination hearing in
their letters, we conclude there is no good cause to merit additional briefing. Further,
though we are not required to do so, we have reviewed the record as it relates to the
termination hearing and have found no arguable issues. Consequently, we dismiss the
appeal.
DISPOSITION
The appeal is dismissed.
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