In re Angela D. CA2/8 ( 2023 )

Filed 1/27/23 In re Angela D. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ANGELA D. et al., Persons
Coming Under the Juvenile Court B318408
Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. 19CCJP07061)
Plaintiff and Respondent,
v.
CRISTINA M. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Gabriela H. Shapiro, Judge Pro Tempore.
Affirmed.
Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant Cristina M.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant Nicholas D.
Dawn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
Cristina M. (Mother) and Nicholas D. (Father) appeal from
the juvenile court’s order terminating their parental rights to
their three children. The parents argue the court erred when it
concluded the beneficial parent–child relationship exception to
adoption did not apply. We affirm.
BACKGROUND
The family in this case consists of Father, Mother,
Angelina D. (born 2013), Rafael D. (born 2015), and
Christopher D. (born 2018).
1. Detention
The family came to the attention of the Orange County
Social Services Agency (the Agency) when it received report of a
car crash.
On September 17, 2019, Father was driving the family car
with Mother in the front passenger seat and the children—five-
year-old Angelina, four-year-old Rafael, and 11-month-old
Christopher—in the back seat. Mother and Father admitted they
were arguing while Father was driving. Father hit a curb, lost
control of the car, and hit another vehicle head-on at 40–45 miles
per hour. Father was arrested for felony driving under the
influence with a blood-alcohol content over 0.08. It was unclear if
the children were properly restrained in the vehicle.
2
The children were transported to Children’s Hospital
Orange County for medical treatment. Angelina sustained a non-
displaced right elbow fracture and superficial bruising to her left
cheek and left eyebrow. Rafael sustained a small hematoma at
the nasal bridge and a non-displaced nasal bridge ecchymosis.
Christopher displayed no acute stress from the accident, and his
skeletal survey came back negative.
On September 23, 2019, the Orange County Juvenile Court
issued a warrant allowing the Agency to remove the children
from the parents’ custody.
2. Jurisdiction
On September 25, 2019, the Agency filed a petition under
Welfare and Institutions Code section 300, subdivisions (a),
(b)(1), (g), and (j).1 The petition alleged Father drove Mother and
their three children while under the influence of alcohol, which
caused Father to lose control of the car and collide head-on with
another car (counts a-1, b-1). Contributing to the crash was
domestic violence between the parents while Father was driving
(counts a-2, b-2). Two of the three children sustained injuries
(counts a-3, b-3). Father was arrested for driving under the
influence of alcohol and for child endangerment. The petition
also alleged Father and Mother exposed the children to domestic
violence and substance abuse in the family home (counts a-4,
b-4); the parents had unresolved substance abuse problems
(counts b-1, b-5, b-7); Mother had mental health issues (count
b-6); Father had anger management issues (count b-8); Father
1 All undesignated statutory references are to the Welfare
and Institutions Code.
3
had a criminal history and was currently incarcerated due to the
crash (counts b-9, b-10, g-1); and the parents had a prior
dependency case when Angelina was detained in November 2013,
due to the parents’ substance abuse (count j-1). That case had
been terminated in February 2015, with the parents awarded
joint legal custody, Mother awarded physical custody, and Father
awarded monitored visits with Angelina.
On September 26, 2019, the Orange County Juvenile Court
detained all three children from the parents. The court found
Father was the presumed father. The court ordered a minimum
of six hours of monitored visits per week for Mother immediately
and for Father when he was released from custody. In the
meantime, Father was to receive two weekly monitored phone
visits. The children were placed with a maternal uncle and his
wife.
At the October 21, 2019 jurisdiction hearing, the court
dismissed count b-8, which alleged that Father had unresolved
anger management issues, and sustained the rest of the petition
under section 300, subdivisions (a), (b)(1), (g), and (j). The court
continued the disposition hearing and transferred the case to Los
Angeles County.
3. Disposition
The Los Angeles County Juvenile Court accepted the
transfer on November 4, 2019, and held the disposition hearing
on February 20, 2020. The children were declared dependents of
the court under section 300 and removed from the parents’
custody.
The court ordered reunification services for the parents.
Mother was ordered to complete a full drug and alcohol program
with aftercare and weekly random or on-demand testing, a
4
parenting program, and individual counseling. Father was
ordered to participate in a full drug and alcohol program with
aftercare and weekly random or on-demand testing, a parenting
course, a 52-week domestic violence program for perpetrators,
and individual counseling. The court awarded each parent six
hours per week of monitored visitation: three two-hour visits per
week.
4. Reunification Period
The six-month review hearing, initially scheduled for
May 13, 2020, was continued to September 29, 2020, due to
COVID-19 restrictions. At the subsequent six-month review
hearing, the court ordered further reunification services.
At the contested 18-month review hearing on July 29, 2021,
the court found the Department of Children and Family Services
(Department) had provided reasonable family reunification
services, but the parents had not made substantial progress with
the court-ordered case plan. The court terminated the parents’
reunification services and set a section 366.36 hearing for
December 2, 2021. There was no change in visitation. Mother
and Father were advised of their writ rights.2
5. Section 388 Petitions
On December 1, 2021, Father filed three section 388
petitions that asked the juvenile court for six additional months
2 Mother and Father filed a Notice of Intent to File Writ
Petition on July 30, 2021. On December 28, 2021, after no writ
petition was filed, we concluded the proceeding as a non-
operative writ. (N.D. v. Superior Court (Dec. 28, 2021, B314124)
[nonpub. order].)
5
of family reunification services. Father’s petition stated—and the
attached exhibits substantiated—that Father was actively
involved in a substance abuse treatment program that he started
on May 8, 2021; he had attended 21 sessions of a 52-week
domestic violence program; he had attended seven sessions of
individual counseling; he completed a parenting program; and he
currently had ten consecutive negative drug tests. Father
believed reinstating reunification services was in the best
interests of his children because it would strengthen the bond
they had with him.
On January 25, 2022, Mother filed section 388 petitions
that also sought continued family reunification services.
Attached to Mother’s petitions were exhibits indicating she had
completed outpatient substance abuse programs and had been
compliant with her psychotropic medication.
Meanwhile, the Department filed an interim review report.
The report explained that a social worker had asked Angelina
who she wanted to live with, and the child said she didn’t know—
but during one of the monthly visits, she had told a social worker
she wanted to remain with her aunt and uncle. When Rafael was
asked who he wanted to live with, he said, “my aunt and uncle,
friends and family.”
The maternal grandmother told the social worker that
Mother had had problems with alcohol since her 20s, but the
grandmother did not know if Mother still was drinking because
Mother refused to speak with her. Likewise, the maternal
grandfather said Mother had been living with him since
September 2019, but they were estranged and did not
communicate. He explained that Mother lived with him because
the rest of the family wanted nothing to do with her.
6
The maternal grandmother reported that the children were
being well taken care of and were happy. Angelina had told her
grandmother that she did not want to return to Mother. Father
and Mother both testified.
After Father’s testimony, the children’s attorney joined
with the Department’s request that the court deny the parents’
section 388 petitions. Minors’ counsel argued that there was no
evidence supporting the parents’ claims that they were sober;
Mother had provided no evidence of clean drug tests since
July 2021, and Father had a recent positive test and had three
missed tests. Furthermore, Father had not completed his case
plan. Regarding the best-interest prong, the children’s attorney
noted that the children had been placed with their caretakers for
three years, and it was the children’s desire to remain there.
The court agreed with the parents that they had made
progress since family reunification services were terminated, but
concluded they failed to prove more than changing circumstances
and that providing them six more months of family reunification
services would be in the children’s best interests. Accordingly,
the court held there were no changed circumstances, and it would
not be in the children’s best interests to provide the parents with
additional reunification services. The petitions were denied.
6. Section 366.26 Hearing
Following the denial of the parents’ section 388 petitions,
the juvenile court trailed the section 366.26 hearing to the
following day. On February 4, 2022, the juvenile court accepted
into evidence the parties’ exhibits and indicated it would also
consider the evidence, testimony, and arguments presented
during the section 388 hearing.
7
The children’s attorney joined the Department’s request to
terminate parental rights. Minors’ counsel argued the children
were adoptable, the caretakers were willing to adopt them, and
there was no applicable exception to termination. In anticipation
of the parents’ arguments, the children’s attorney addressed the
beneficial parent–child relationship exception provided by
section 366.26, subdivision (c)(1)(B)(i). Counsel argued that
although the parents’ visitation had become more regular
recently, they had not visited consistently throughout the case—
and, in any event, 90 minutes of visitation each week did not
allow for the formation or continuation of the type of bond
necessary to prevent termination of parental rights. When the
court asked whether the caretakers would be willing to enter into
a post-adoption contract, the children’s attorney replied that the
caretakers were willing to let the children have contact with the
parents if they remained sober but were not currently interested
in continued parental visits.
Mother’s attorney asked the juvenile court to apply the
beneficial parent–child relationship exception. Counsel argued
that Mother had satisfied all requirements for the exception to
apply, and the children wanted and expected to be returned to
Mother’s custody. Father’s attorney stated, “Father is objecting
to termination of his rights today.”
The court analyzed each prong of the exception in turn.
Starting with the regular visitation and contact element, the
court stated: “The parents [must] show regular visitation and
evidence that they’ve maintain[ed] minimum visitation is not
sufficient. I need to show that they maintain that contact. The
parents have had contact. Parents and counsel have indicated
that the parents have visited as much as they can. That
8
visitation has remained monitored throughout dependency of this
case.” The court found: “At this time the visitation with the
children has been monitored. It is not as frequent as one would
like or need in order to determine that there’s an emotional
bond.”
As to the second prong of the exception, the court stated:
“With respect to prong two, I have to consider whether there’s a
substantial emotional attachment to the parents which implies
that the children would benefit [from] continuing that
relationship with the parents. [In re Autumn H. (1994)] 27
Cal.App.4th 567 stands for the proposition when parents and
children have interactions, it will always confer some kind of
incidental benefit to the child.”
The court next noted that whether the parents occupied a
“parental role” in the children’s lives was not a factor it could
consider. Rather, the parents were required to demonstrate
“their contact isn’t merely loving or more than friendly. They
have to demonstrate that if they are not involved in their
children’s lives anymore it would be detrimental to the children.”
The court held that there was no evidence that
demonstrated the children felt or expressed an emotional and
loving bond, and the parents’ representations as to what would
promote the children’s best interest were not credible.
Moving to the third prong of the exception, the court stated:
“The third prong is whether terminating the attachment would
be detrimental when balanced against the benefits of an adoptive
home. This is somewhat of a delicate balancing act that the court
has to do. I have to look at whether there’s a beneficial
relationship. I need to determine how important this
relationship is with the children. In terms of the ages of the
9
children, which I’ve referenced, the children are eight, six, and
three, I believe. The children have been out of the parents’ care
and for a significant period of time. They have thrived [with] the
caretakers since being removed from the parents’ custody. They
first came to the Department in 2019. Was a really serious
incident that resulted with them coming into the system. Since
2019, the children have resided with these caretakers. The
exception only applies where I can find this emotional
attachment was there. I wasn’t able to find in yesterday’s 388
hearing was [sic] a best interest prong. And that finding from
yesterday’s denial, I believe it’s a significant basis for the court to
use as an anchor for the analysis for whether or not I can
terminate parental rights today. For a much lower burden the
court did not find a best interest element, I can then use that and
argue that the relationship and the well[-]being of the child is out
weighted [sic] and they would gain more in a permanent home
with new adoptive parents than they would be negatively
impacted by not having a continued relationship with their
parents.”3
The court also noted the children were placed together, and
stated: “They appear to be thriving and doing well. They are no
longer in fear of instability and they are in a loving home, and I
believe that with the evidence before me, the shared experiences
the children have and the relationship that [they] currently have
3 It is unclear what the court meant by its “much lower
burden” remark. We need not determine what burden of proof
the court applied to the third prong of the beneficial relationship
exception, however, because we conclude that the first prong is
dispositive in this case.
10
with their current caretakers is more substantial.” The court
noted again that the parents’ contact with the children had never
progressed beyond monitored visits and telephone calls.
Thus, the court held that the parents had failed to meet
their burden of showing termination of the parent–child
relationship would be detrimental to the children and, therefore,
that the exception did not apply. The court then found, by clear
and convincing evidence, that the children were adoptable, and it
would be in their best interest to terminate parental rights. The
court terminated parental rights.
The parents filed timely notices of appeal.
DISCUSSION
Both parents contend the court erred when it found the
beneficial parent–child relationship exception to adoption did not
apply.4 As we explain, the court did not err when it terminated
the parents’ parental rights.
4 It is unclear from her briefing whether Mother also
attempts to challenge the court’s denial of her section 388
petition. Certainly, as the Department notes, she has presented
no cogent argument and cited no relevant authority to support
such an argument. (See Cal. Rules of Court, rule 8.204(1)(C)
[appellant’s brief must contain legal arguments supported by
citations to authorities and the record on the points made].) Nor
does she dispute, in her reply brief, the Department’s claim that
the issue is forfeited. As such, to the extent that Mother intended
to challenge the court’s ruling on that point, we do not address it.
(See People v. Stanley (1995) 10 Cal.4th 764, 793.)
11
1. The issue is not forfeited.
At the section 366.26 hearing, Mother’s attorney explicitly
raised the beneficial relationship exception. Father’s attorney
did not. Instead, Father’s counsel stated: “Father is objecting to
termination of his rights today.” The Department contends
Father’s appeal should be dismissed because he failed to ask the
juvenile court to apply the beneficial parent–child relationship
exception. (See, e.g., In re E.A. (2012) 209 Cal.App.4th 787, 790
[“General objections are insufficient to preserve issues for review.
[Citation.] The objection must state the ground or grounds upon
which the objection is based. [Citation.]”]; In re Richard K. (1994)
25 Cal.App.4th 580, 590 [“As a general rule, a party is precluded
from urging on appeal any point not raised in the trial court.”].)
We disagree.
Here, Father explicitly objected to termination of his
parental rights. The court was aware of the basis of Father’s
objection from Father’s arguments at both the termination
hearing and the section 388 hearing, during which counsel had
argued that the Department’s reports showed the children loved
Father, they cared deeply for him, and their bond with him
deepened as he showed them he was trying to be a better parent.
Indeed, it was so apparent that the beneficial parent–child
relationship exception was before the court that the children’s
attorney preemptively raised it.
Given that the court went on to address the exception at
length and in detail, we see no prejudice to the court or any of the
parties from counsel’s failure to raise the exception explicitly, and
as such, exercise our discretion to address the issue on the
merits. (See, e.g., In re Stuart S. (2002) 104 Cal.App.4th 203,
206; In re Karla C. (2010) 186 Cal.App.4th 1236, 1266–1267.)
12
2. Termination of Parental Rights and the Parent–
Child Benefit Exception
Once the juvenile court terminates a parent’s reunification
services, “ ‘the focus [of the proceedings] shifts to the needs of the
child for permanency and stability.’ ” (In re Celine R. (2003) 31
Cal.4th 45, 52.) At that point, adoption becomes the preferred
permanent plan for the child, and the court should order it
“unless exceptional circumstances exist.” (In re Casey D. (1999)
70 Cal.App.4th 38, 51.)
Section 366.26 requires the juvenile court to terminate
parental rights if it finds by clear and convincing evidence that
the child is likely to be adopted. (§ 366.26, subd. (c)(1).) A parent
may avoid termination of parental rights, however, if he can show
certain circumstances exist that support an exception to
adoption. (In re Caden C. (2021) 11 Cal.5th 614, 617 (Caden C.).)
One exception exists where there is a beneficial
relationship between the parent and child. (Caden C., supra,11 Cal.5th at p. 617.) To establish the beneficial parent–child
relationship exception, the parent must show, by a
preponderance of the evidence, that: (1) he has “maintained
regular visitation and contact with the child and the child would
benefit from continuing the relationship” and (2) the court finds
that the relationship provides a “compelling reason for
determining that termination [of parental rights] would be
detrimental to the child.” (§ 366.26, subd. (c)(1)(B)(i).)
In Caden C., the California Supreme Court clarified how
this exception works: “The language of [the beneficial parent–
child relationship] exception, along with its history and place in
the larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
13
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
p. 630.)
In determining if the beneficial parent–child relationship
exception applies, “the court acts in the child’s best interest in a
specific way: it decides whether the harm of severing the
relationship outweighs ‘the security and the sense of belonging a
new family would confer.’ [Citation.] ‘If severing the natural
parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that,’ even considering the
benefits of a new adoptive home, termination would ‘harm[ ]’ the
child, the court should not terminate parental rights. [Citation.]
That subtle, case-specific inquiry is what the statute asks courts
to perform: does the benefit of placement in a new, adoptive
home outweigh ‘the harm [the child] would experience from the
loss of [a] significant, positive, emotional relationship with [the
parent?]’ [Citation.] When the relationship with a parent is so
important to the child that the security and stability of a new
home wouldn’t outweigh its loss, termination would be
‘detrimental to the child due to’ the child’s beneficial relationship
with a parent.” (Caden C., supra, 11 Cal.5th at pp. 633–634,
italics omitted.)
The Supreme Court also clarified that a parent’s failure to
make adequate progress with his case plan or to address the
issues that led to the child’s dependency, while sometimes
relevant to evaluating the quality of the parent–child
relationship and weighing the consequences of severing that
relationship against the benefits of a permanent adoptive home,
is not a categorical bar to establishing the exception. (Caden C.,
14
supra, 11 Cal.5th at pp. 637–638.) The critical question is
whether the child’s relationship with his parent is so significant
that it outweighs the benefits of adoption, not whether the parent
has satisfactorily addressed the issues that led to dependency
proceedings. (Id. at pp. 635–636.)
Thus, to show the beneficial parent–child relationship
exception applies, the parent bears the burden of establishing
three elements: (1) regular visitation and contact with the child,
taking into account the extent of visitation permitted; (2) the
existence of a substantial, positive, emotional attachment
between the child and the parent—the kind of attachment
implying that the child would benefit from continuing the
relationship; and (3) that terminating the parent–child
relationship would be detrimental to the child even when
balanced against the countervailing benefit of a new adoptive
home. (Caden C., supra, 11 Cal.5th at p. 636.) In evaluating
whether the exception applies, courts should look to several
factors, including the age of the child, the amount of time he
spent in his parent’s custody, the quality of interaction between
parent and child, and the child’s particular needs. (In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) If the parent
establishes all three elements, the exception applies, and the
court should select a permanent plan other than adoption.
(Caden C., at pp. 636–637.)
3. Standard of Review
Typically, the juvenile court’s findings on the first two
elements—regular visitation and whether the child would benefit
from continuing the relationship—are reviewed for substantial
evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) Courts
review the third element using a hybrid standard: reviewing
15
factual determinations for substantial evidence and the weighing
of the relative harms and benefits of terminating parental rights
for an abuse of discretion. (Ibid.)
But where, as in this case, the appellant contends that the
court below erred in finding he did not meet his burden of proof,5
we must determine whether the evidence compels a finding in
favor of the appellant as a matter of law. (In re I.W. (2009) 180
Cal.App.4th 1517, 1528, disapproved of on another ground in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
“Specifically, the question becomes whether the appellant’s
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’
[Citation.]” (I.W., at p. 1528.)
4. The parents have not demonstrated regular
visitation.
In addressing the beneficial parent–child relationship
exception to termination of parental rights, the court commented
on the first prong—whether the parents maintained regular
visitation and contact with the children: “The parents have had
contact. Parents and counsel have indicated that the parents
have visited as much as they can. That visitation has remained
monitored throughout dependency of this case.”
5 In Caden C., unlike in this case, the juvenile court found
the mother met her burden to establish the beneficial parent–
child relationship exception, but the appellate court reversed the
juvenile court’s ruling. (Caden C., supra, 11 Cal.5th at pp. 628–
629.)
16
“Regular visitation exists where the parents visit
consistently and to the extent permitted by court orders.” (In re
I.R. (2014) 226 Cal.App.4th 201, 212 (I.R.).) The record shows
that Mother and Father did not visit regularly, according to this
definition.
4.1. Mother’s Visitation
At the detention hearing, the Orange County Juvenile
Court ordered a minimum of six hours of monitored visits a week
for Mother immediately and for Father when he was released
from custody. In its Jurisdiction/Disposition Report, the Agency
wrote that on October 15, 2019, the caregiver reported that
Mother had alcohol on her breath during her October 10, 2019
visit. Mother’s visits were put on hold until the accusation could
be investigated.
When Los Angeles County received the case, the caregivers
reported that since the detention hearing, Mother had visited two
days a week, monitored by the maternal grandfather. Mother
cancelled a few visits at the last minute, and the caregivers were
concerned about Mother’s alcohol use because she smelled of
alcohol during the October 10, 2019 visit. The caretakers also
reported the children were “whiny” and “defiant” after visits.
The Los Angeles County Juvenile Court ordered six hours
per week of monitored visits: three times per week for two hours
per visit. At the beginning of the first status review period,
Mother was visiting twice a week, monitored by the caretakers.
But by the time of the hearing, the caretakers no longer wanted
to monitor Mother’s visits because she tried to get the children to
talk to Father on the telephone when they appeared uninterested
in doing so, and because she smelled of alcohol during a visit.
17
The caretakers had also had to advise her not to raise her voice to
the children.
Thus, beginning in February 2020, the maternal
grandfather began monitoring Mother’s visits. Angelina and
Rafael reported they enjoyed going to restaurants with Mother
and the maternal grandfather.
In July 2020, however, one of the caretakers reported that
Angelina told him Mother had been drinking alcohol during
visits. Mother denied the claim. The maternal grandfather said
Mother was drinking alcohol often at that time and was not doing
well in that regard, but he ensured she did not drink during
visits. Nevertheless, the social worker informed the maternal
grandfather he could no longer monitor Mother’s visits because
he had not reported that Mother had relapsed and was drinking
daily while visiting the children. After the social worker
cancelled an upcoming visit, Mother enrolled in an inpatient
program.
For the next review hearing, the Department reported that
Mother telephoned the children four times per week from her
inpatient substance-abuse program. The children would also
FaceTime Mother. But there was no report of any in-person
visits, and Mother did not telephone the children at all during
October 2020, when she had left the program and was living with
the maternal grandfather.
Mother began visiting the children again in November
2020, after Father was released from prison. Yet although the
court had allowed her three two-hour visits each week, she only
visited twice per week and telephoned the children three times
per week. And, when the social worker asked the caretakers
about Mother’s complaint that she was not informed of the
18
children’s school progress, they said that for the first 10 months
or so, when they contacted Mother about such issues she didn’t
respond. It was only after Father was released from prison that
Mother started coming around and engaging with the children.
During the hearing on her section 388 petition, Mother
testified she was only visiting once a week for 90 minutes. This
was consistent with the section 366.26 report, which said Mother
and Father were visiting the children on Thursdays for two to
three hours, with Father visiting for the first half of the visit
while Mother visited during the second half of the visit. Mother
also telephoned the children three times a week, monitored by
the caretakers.
Mother testified that she constantly asked for more
visitation time. But she also acknowledged that her request had
not been denied: The Department told her it did not have the
resources to monitor more than the 90 minutes she visited each
week. The social worker confirmed this account—and explained
that Mother had never identified anyone else who could act as a
monitor and, thereby, secure additional visitation time.
In sum, the record shows the juvenile court ordered six
hours of weekly visitation time: three two-hour visits. Mother’s
continued alcohol abuse resulted in her losing two monitors—and
her failure to name other possible monitors left her with a single
90-minute visit each week. This record supports the juvenile
court’s finding that Mother failed to prove the first prong of the
beneficial parent–child relationship exception.
4.2. Father’s Visitation
On September 26, 2019, the Orange County Juvenile Court
ordered a minimum of six hours of monitored visits a week for
Father when he was released from custody. On October 15, 2019,
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the Agency reported that Father had not contacted the social
worker to arrange for visits since his release from jail on
October 3, 2019. At the section 388 petition hearing, Father
testified that he was incarcerated when the case began. He was
released ten days later and rearrested about a month after that.
Therefore, Father failed to visit his children for a month between
his two arrests.
At the disposition hearing, the Los Angeles Juvenile Court
likewise ordered six hours of weekly visitation: monitored visits
three times per week for two hours per visit. That order
remained in effect throughout the case.
Father’s second incarceration lasted 13 months. Initially,
the caregivers monitored Father’s phone calls with the children.
When the caregivers told the Department they didn’t want to
continue monitoring the calls, the children began writing letters
to and drawing pictures for Father. Therefore, during this time,
Father was unable to visit and only spoke with the children by
telephone when the maternal grandfather monitored his phone
calls during Mother’s visits. The children said they enjoyed their
telephone calls and wanted to continue sending Father drawings.
At some point after the first status review hearing, the
caretakers started monitoring Father’s phone calls with the
children again. The children continued to enjoy speaking with
Father on the phone. Father was released from prison on
November 17, 2020.
For the March 23, 2021 review hearing, the Department
reported that Father was visiting the children twice a week for
90 minutes and telephoning the children three days a week. The
social worker saw Angelina and Rafael hug Father and appear
comfortable and playful with him. Father ensured the children
20
were safe and brought them lunch and snacks. He appeared to
bond well with the children and engaged them in conversation as
he pushed them on the swings or played catch; the children
followed Father’s directions and interacted with him well.
During visits at the library, the parents would bring dinner, play
hide-and-seek, and help the children with homework. The
children appeared to enjoy their visits and were talkative and
energetic.
In sum, however, the record shows that Father had only
one in-person visit for the first 14 months of the case and, when
he was released from prison, instead of visiting for six hours each
week—three two-hour visits—he visited for only 90 minutes. As
with Mother, the Department asked Father to identify additional
monitors so he could increase his visitation time, but Father
failed to do so.
In short, Father, like Mother, has not established, as a
matter of law, that he maintained sufficiently regular visitation
and contact with the children to meet the first prong of the
beneficial parent–child relationship exception. (In re I.R., supra,
226 Cal.App.4th at p. 212 [parents must demonstrate that they
visited consistently, to the extent permitted by the juvenile
court].) To be sure, parents do not need to visit on every possible
occasion to make this showing. (In re Jeremy S. (2001) 89
Cal.App.4th 514, 522.) Here, however, although the parents
sometimes visited consistently, and the children were happy to
see them when they did, they used only a fraction of their allotted
visitation time. They could not, or would not, provide additional
monitors. Thus, due to the lack of sufficient regular visitation
and contact, the court did not err when it terminated parental
rights.
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DISPOSITION
The court’s order terminating the parents’ parental rights
and setting adoption as the permanent plan is affirmed.
HARUTUNIAN, J.*
We Concur:
STRATTON, P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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