In re Joshua R. CA1/4 ( 2014 )

Filed 6/30/14 In re Joshua R. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re Joshua R., A Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A140055
v.
(Contra Costa County
John R., Super. Ct. No. J1200401)
Defendant and Appellant.
In this dependency appeal, John R. (father) seeks relief from the juvenile court
order terminating his parental rights with respect to his son, Joshua (born April 2005).
Specifically, father argues that the juvenile court abused its discretion by denying his
petition for modification heard in conjunction with the permanency planning hearing in
this matter. He also contends that termination of his parental rights was improper under
the “beneficial relationship” exception to adoption and because the juvenile court failed
to ascertain and consider Joshua’s wishes with respect to adoption as required by statute.
Seeing no error requiring reversal of the juvenile court’s termination order, we affirm.
1
I. BACKGROUND
Joshua R., the minor who is the subject of these proceedings, first came to the
attention of the San Francisco County Children’s Services Agency (Agency) in October
2011, when he was six years old. At that time, Joshua was living with his father and
step-mother in a San Francisco homeless shelter. In the early hours of October 15, 2011,
John R. and his wife got into an argument in front of Joshua, apparently involving the
family’s sleeping arrangements. According to John, the shelter had put a mattress on the
floor for Joshua, but he did not want his son to sleep on the floor due to the minor’s
allergies. John became increasingly agitated, yelling and making threats. In particular,
he reportedly told shelter staff that they had “ ‘[b]etter call CPS because I’m going to
drive my car with my son to the bridge and flip it.’ ”1 In fact, John became so distressed
during the incident that he broke his hand when he hit an object. The police were called,
and John was transported to San Francisco General Hospital and placed on a brief
psychiatric hold pursuant to section 5150 of the Welfare and Institutions Code.2 After the
altercation, the minor’s step-mother took the family car and left, telling shelter staff that
Joshua was not her son and that they should look after him.
According to the staff at the homeless shelter, Joshua was “frequently” left in their
care and they had previously taken him to the hospital for “swollen eyes and breaking
out.” In addition, the police reported that they had responded to a similar call from the
shelter within the last month, during which John R. had also required assessment under
section 5150. Moreover, upon investigation, the Agency learned that John R. had a long
1
At the contested permanency planning hearing in this matter, father denied ever making
this statement.
2
All statutory references are to the Welfare and Institutions Code unless otherwise
indicated. Pursuant to subdivision (a) of section 5150, “[w]hen a person, as a result of a
mental health disorder, is a danger to others, or to himself or herself, or gravely disabled,
a peace officer . . . or professional person designated by the county may, upon probable
cause, take, or cause to be taken, the person into custody for a period of up to 72 hours
for assessment, evaluation, and crisis intervention, or placement for evaluation and
treatment in a facility designated by the county for evaluation and treatment and
approved by the State Department of Health Care Services.”
2
criminal history, including convictions for grand theft (1979), burglary (1980), robbery
(1981), felony pandering (1984), and felony narcotics possession (1994), as well as
numerous probation violations. He was arrested in 2004 for sexual assault and assault,
and, most recently, on June 15 and December 24, 2011, for narcotics possession. Further,
Joshua’s mother had previously reported domestic violence by John and stated that he
had recently left threatening messages for her. Finally, John R. has a total of seven
children, three of whom had been involved in the dependency system at the time of the
October 2011 incident. Two adult children were previous juvenile court dependents. A
third, J.R., was removed from John R. due to his incarceration and remained in a
permanent plan of long term foster care with her maternal grandmother.3
As a result of the October 15 incident, the minor was detained in foster care. On
October 17, 2011, the Agency called John R. twice in an attempt to meet with him
regarding Joshua, but he stated he was too busy with a doctor’s appointment, getting his
car out of impound, and “other things.” The next day, the Agency filed a petition
alleging that Joshua came within the jurisdiction of the juvenile court under subdivisions
(b), (g), and (j) of section 300.
The minor was formally detained at the detention hearing on October 19, 2011.
Supervised visitation was ordered for both parents, with the Agency given the discretion
to move to unsupervised contact. On November 7, 2011, John R. was declared to be the
presumed father of Joshua. Then, on November 23, 2011, the Agency filed a first
amended petition which dropped the allegation under subdivision (g) of section 300 and
3
John R. has two additional children (half-siblings of Joshua) who were residing with
their mother at the time these proceedings commenced. According to social worker
reports filed in August and October 2013—immediately prior to the permanency
planning hearing in this matter— these two half-siblings (then ages three and five) had
recently also become the subject of dependency actions in Contra Costa County. Despite
John R.’s acknowledgement that the mother of these children “ ‘is crazy,’ ” he had failed
to visit the half-siblings—or provide any care or support for them—since June 2011.
John R.’s seventh child was born during the pendency of these proceedings to his then-
current wife.
3
added a subdivision (b) allegation regarding mother’s mental health issues.4 A contested
hearing on jurisdiction and disposition was set for January 30, 2012.
In the meantime, Joshua was moved to the home of his maternal grandparents on
December 9, 2011. The Agency had identified Joshua as “a very high need child in terms
of his emotional and behavioral presentation.” Specifically, Joshua’s behavior, cognition
and speech were noticeably delayed for his age, and he was a regional center client. In
addition, he suffered from enuresis, encopresis, allergies and anemia.5 Joshua had
previously been prescribed psychotropic medication, but was no longer taking it. He had
a possible diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and could be
aggressive, hitting other children and adults. Although Joshua had been enrolled in
several developmentally appropriate programs, his attendance appeared to have been
inconsistent. The Agency concluded that he would need “long term close supervision,
structure and services for his stabilization,” which he seemed to be receiving from his
grandparents.
At the contested hearing on January 30, 2012, both parents submitted to
jurisdiction after significant amendments were made to the first amended petition by the
juvenile court. As a result of these negotiated alterations, the sustained petition in this
matter contained only a single allegation involving John R., which stated: “The father’s
ability to care for the child is impaired in that he has been diagnosed with anxiety and
PTSD for which he requires further assessment and has started treatment. The father was
put on 5150 hold when he threatened to harm himself and others.”
4
Renee H., the minor’s mother, reportedly has developmental delays and mental health
issues, including schizophrenia. Although the couple supposedly shared custody of
Joshua—with Renee having the minor during the summer and John during the school
year—Renee showed little interest in reunification and generally supported the adoption
of the minor by her parents. She is not a party to these proceedings.
5
Indeed, it was determined during the course of this dependency action that Joshua has
the Thalassemia Anemia Trait, which is a gene mutation that leads to decreased
production of structurally normal blood cells. This condition requires monitoring,
medication for chronic anemia, and repeated blood transfusions.
4
In the dispositional phase of the proceedings, Joshua was declared to be a juvenile
court dependent and formally removed from the home of his father. In addition,
reunification services were ordered for both parents. Specifically, with respect to John
R., a reunification plan was ordered which included: participation in mental health
treatment, including medication as indicated; completion of a parenting class; completion
of a substance abuse assessment and any recommended treatment, including testing as
indicated; regular visitation with the minor; participation in the minor’s educational and
developmental planning; and maintenance of adequate housing. In particular, the Agency
noted that John, mother, and the minor all had mental health issues requiring treatment
and that “[i]t will be essential for the father to have effective mental health services in
place prior to the minor[’]s return to his care.”
As a final matter, the San Francisco juvenile court determined that the minor’s
legal residence was Contra Costa County and transferred the case to that jurisdiction. At
the transfer-in hearing on May 2, 2012, the Contra Costa County Children & Family
Services Bureau (Bureau) reported that John R. had moved to Stockton with his wife.
While he professed to be interested in reunification, he had “difficulty in following
through with requests and referrals for services, including travel arrangements for visits
with his son.” With respect to Joshua, the Bureau stated that “it is clear that he is a child
who has lacked stability and is likely suffering from his experiences.” Finally, it also
noted that John R.’s request that his son be transported to Stockton for visitation showed
no understanding regarding how hard the trip would be for Joshua or how important is
was for the minor to attend class regularly. At the conclusion of the hearing, the Contra
Costa juvenile court set a six month review for July 2012.
John R. failed to appear for the six month review, and his compliance with his
reunification plan was slight. Specifically, John R. had not participated in any mental
health services despite a number of referrals and—though he had completed a substance
abuse assessment—he had not followed through with the recommendations that he attend
a 12-step program and find a sponsor. Moreover, despite being provided with
transportation assistance by the Bureau, John had only visited with Joshua one time (on
5
June 29 for 90 minutes) since the case was accepted for transfer in April 2012. In fact,
John R. told his social worker on a number of occasions that completing his reunification
plan was just “too hard for him at this time.” Joshua, in the meantime, was reported to be
“very happy” in the home of his maternal grandparents. The Bureau noted that the minor
was now attending school on a regular basis and that “[i]t is important that this child be
given every opportunity to participate in school without absence.” The juvenile court
continued reunification services and ordered supervised visitation for John R. a minimum
of one hour twice per month.
At the contested 12 month review hearing on December 19, 2012, John R.
reported that he had entered an outpatient substance abuse treatment program at Highland
Hospital in Oakland on November 5, 2012. In addition, he supplied documentation
indicating that he had attended the program 39 times, including classes in anger
management, parenting and substance abuse. However, prior to November 5, he had
continued to use cocaine and ecstasy on a recreational basis and had not engaged in any
substance abuse treatment during the reunification period. Moreover, John R. had still
not participated in any mental health services. Specifically, he ignored numerous mental
health referrals while the case was pending in San Francisco. In addition, although he
was given a San Joaquin County referral by the Contra Costa County social worker and
called for an appointment in her presence, he failed to follow through and stated that he
was unable to participate in counseling because his life was “not stable.” At best, John R.
testified that there was a possibility that mental health treatment “will come along” if he
progressed in his outpatient drug treatment program. Finally, according to the 12-month
review report, John R. had visited with the minor only three times, despite the fact that he
had relocated from Stockton to Richmond. A supplemental report documented one
additional visit on December 14, 2012. Indeed, John R. confirmed that, since Joshua’s
dependency action was transferred to Contra Costa County in April 2012, he had only
attended four or five visits with his son. Joshua, for his part, continued to do “extremely
well” in the home of his maternal grandparents.
6
Under these circumstances, the juvenile court concluded that there was no
substantial probability that Joshua could be safely returned to John R.’s physical custody
within six months if additional reunification services were provided. (See § 366.21,
subd. (g)(1).) Rather, citing John R.’s unavailability, his continued drug use, his
“sporadic” visitation with the minor, and the lateness of his engagement in reunification
efforts, the juvenile court terminated reunification services and set the matter for a
permanency planning hearing pursuant to section 366.26. At that point, John R.’s request
that the Bureau be given the discretion to move to unsupervised visitation “if he can
provide a safe track record” was denied by the juvenile court judge.
While the minor’s permanency planning hearing was pending, John R. filed a
request for modification pursuant to section 388 on August 12, 2013. Specifically, John
requested that reunification services be reinstated based on his continued progress in his
outpatient substance abuse treatment program. At the conclusion of the contested
permanency planning hearing on October 9, 2013, the juvenile court denied John R.’s
388 request, stating that “[a]t best” John was “making some progress in what has, for
him, been a lifetime addiction issue.” The court went on to emphasize John R.’s lack of
any mental health treatment: “Most importantly, though, the serious problems that
originally led to the dependency have really not been addressed at all by [John R.]. The
mental health treatment and assessment component of the plan has even now not come
close to being addressed.” Thus, John R.’s “burden fell far short of the needed showing”
to support the requested modification.
The juvenile court then considered the appropriate permanent plan for Joshua.
Specifically, after argument, the court refused to apply the “beneficial relationship”
exception to block the adoption of the minor and terminated the parental rights of both
John R. and Renee H. A timely notice of appeal from father brought the matter before
this Court.
7
II. DISCUSSION
A. Alleged Report Inaccuracies
Underlying all of father’s claims of error in this matter is his repeated assertion
that his due process rights were violated because both child welfare agencies involved in
the case routinely submitted incomplete, inaccurate, and inconsistent reports to the
juvenile court, thereby irredeemably tainting the proceedings. Specifically, father
complains that Bureau reports filed after the case was transferred to Contra Costa County
consistently repeated jurisdictional allegations expressly found by the San Francisco
juvenile court to be “not proven true.” In addition, father criticizes the reports’
descriptions of his visitation with the Joshua, arguing that they are so inconsistent that
they cannot be deemed reliable. As a remedy, he requests that the case be reversed and
remanded so that the juvenile court can reconsider its decisions based on accurate
information. While we could decline to consider father’s allegations because he failed to
raise them in the juvenile court (In re G.C. (2013) 216 Cal. App. 4th 1391, 1398-1399
(G.C.); In re Crystal J. (1993) 12 Cal. App. 4th 407, 411-412 (Crystal J.); see also Evid.
Code, § 353, subd. (a)), we chose to reject them on their merits both to point out a critical
flaw in father’s understanding of the dependency process and to confirm that the
proceedings below were fundamentally fair.6
It is true that, at the jurisdictional hearing in this matter, the juvenile court judge
modified the first amended petition by deleting a number of allegations involving father’s
history of domestic violence, his extensive criminal record, and previous dependency
proceedings involving his other children. Additionally, the father’s specific statement
that he threatened to flip his car with Joshua in it was also stricken from the petition.
According to father, these modifications to the original petition amounted to a finding by
the juvenile court that the stricken allegations were not proven true. As a consequence,
6
Father’s assertion to the contrary notwithstanding, his testimony at the permanency
planning hearing challenging the veracity of certain statements contained in the reports
submitted by the social worker was not the equivalent of a formal objection to the
adequacy of those reports, or of any previous reports filed in connection with earlier
hearings.
8
father argues, his due process rights were violated because the stricken allegations were
later repeated in numerous social worker reports “as if the allegations had been proven
true” and were relied on by the parties and the juvenile court in making their
recommendations and determinations. The short answer to father’s contention is that it is
simply wrong. While the juvenile court did agree to make the alterations to the petition
requested by the parties, it did so to facilitate a negotiated settlement and submission of
the matter, a common practice in juvenile court. There was never a contested hearing on
these issues; nor was there a finding that they were untrue. They were simply removed
from the petition as unnecessary to support the assumption of jurisdiction by the juvenile
court.7
Since it was never determined by the juvenile court that the complained-of
allegations were untrue, they were appropriately included in subsequent social worker
reports and were a proper basis for decision making. It is well settled that social worker
reports—including any hearsay evidence they contain—are generally admissible at any
phase of the juvenile dependency process. (§§ 281, 355, subd. (b); In re Malinda S.
(1990) 51 Cal. 3d 368, 376-377, superseded by statute in part as stated in In re Cindy L.
(1997) 17 Cal. 4th 15, 22, fn. 3; In re Keyonie R. (1996) 42 Cal. App. 4th 1569, 1572-
1573.) Indeed, “[o]ne specific area of dependency jurisprudence where the rules of
evidence are relaxed is with respect to the reports and social studies prepared by the
caseworker assigned to the family. The reports and studies contain not only the
observations and recommendations of the caseworker, but also hearsay statements from
family members and other witnesses. Despite their hearsay content, such reports are
admissible to assist the court in its determinations.” (In re Lesly G. (2008) 162
Cal. App. 4th 904, 914-915 (Lesly G.).)
7
While the original record on appeal failed to include transcripts of the early hearings in
this matter, we sought augmentation on our own motion to confirm that no express
findings regarding the challenged allegations had been made. (See California Rules of
Court, rule 8.155(a)(1)(B).)
9
Indeed, the juvenile court has broad discretion to admit and consider evidence and
to make orders consistent with the best interests of a dependent minor. (See §§ 202,
subd. (b) [dependent minors shall receive “care, treatment, and guidance” that is
“consistent with their best interest”], 300.2 [primary purpose of dependency statutes is
“to ensure the safety, protection, and physical and emotional well-being of children who
are at risk . . .”]; 362, subd. (a) [juvenile court may make “any and all reasonable orders
for the care, supervision, custody, conduct, maintenance, and support of the child”]; In re
Cindy L., supra, 17 Cal. 4th 15, 35 [juvenile court’s admission of hearsay evidence
reviewed for abuse of discretion]; In re Chantal S. (1996) 13 Cal. 4th 196, 201 [in
dependency proceedings, “[t]he juvenile court has a special responsibility to the child as
parens patriae and must look to the totality of a child’s circumstances when making
decisions regarding the child”]; In re Jose M. (1988) 206 Cal. App. 3d 1098, 1103-1104
(Jose M.) [juvenile court “has broad discretion to determine what would best serve and
protect the child’s interest”].) Given its mandate, “[i]f the juvenile court was not allowed
to consider a complete social study report, it would not have ‘a coherent picture of the
child’s situation’ [citation] and would be severely limited in its ability to protect the
child.” (Jose M., supra, 206 Cal.App.3d at p. 1105.)
It is true that, at the contested permanency planning hearing in this matter, father
denied ever making the statement that he intended to flip his car with Joshua in it. John
R. has never claimed, however, that the admittedly prejudicial evidence of his domestic
violence history, his significant criminal record (including a felony drug conviction), and
his prior involvement with the dependency courts was untrue. A parent is not entitled to
exclude evidence merely because they disagree with it or because it is prejudicial to their
interests. (In re Marianne R. (1980) 113 Cal. App. 3d 423, 427-428.) In particular, when
determining whether a child is in present need of the juvenile court’s protection, the court
may consider past events. (In re Petra B. (1989) 216 Cal. App. 3d 1163, 1169.) If John R.
disagreed with information contained in the social worker reports, he was free to cross-
examine the social workers, present his own evidence, and subpoena any persons whose
hearsay statements appeared in the reports. And, as stated above, he did testify at the
10
contested permanency planning hearing that he never made the statement about flipping
his car. Thus, his due process rights were protected, and there was no error. (Compare
Lesly G., supra, 162 Cal.App.4th at pp.914-915 [while social worker reports are generally
admissible, due process requires “that parents be given the right to present evidence, and
to cross-examine adversarial witnesses, such as the caseworker and persons whose
hearsay statements are contained in the reports”].)8
B. 388 Petition
John R. also urges us to reverse the juvenile court’s denial of his section 388
petition filed prior to the permanency planning hearing in this matter. The framework for
analyzing the denial of a 388 petition is not in dispute, and is easily summarized.
Pursuant to subdivision (a)(1) of section 388: “Any parent or other person having an
interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court in the same action in which
the child was found to be a dependent child of the juvenile court . . . for a hearing to
change, modify, or set aside any order of court previously made . . . .” (See also In re
Brandon C. (1993) 19 Cal. App. 4th 1168, 1172; Cal. Rules of Court, rule 5.570.) To
prevail on a motion under section 388, the petitioner must establish by a preponderance
of the evidence (1) that a change of circumstance or new evidence exists, and (2) that the
proposed modification would promote the best interests of the dependent child. (In re
Zachary G. (1999) 77 Cal. App. 4th 799, 806; see also In re Stephanie M. (1994) 7 Cal. 4th
295, 317 (Stephanie M.).) Although the specific factors that a court must consider under
section 388 to determine a minor’s best interests will vary with each case, relevant
considerations include: “(1) the seriousness of the problem which led to the dependency,
and the reason for any continuation of that problem; (2) the strength of relative bonds
between the dependent children to both parent and caretakers; and (3) the degree to which
the problem may be easily removed or ameliorated, and the degree to which it actually
8
We consider John R.’s argument regarding inaccuracies in the reporting of visitation
between himself and the minor in section IID, post.
11
has been.” (In re Kimberly F. (1997) 56 Cal. App. 4th 519, 532 (Kimberly F.); see also In
re Angel B. (2002) 97 Cal. App. 4th 454, 463-464.)
On appeal, we will not disturb a juvenile court’s determination under section 388
unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8
Cal. App. 4th 1698, 1704.) When reviewing a juvenile court order for abuse of discretion,
the “ ‘appropriate test . . . is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the reviewing court has
no authority to substitute its decision for that of the trial court.’ [Citation.]” (Walker v.
Superior Court (1991) 53 Cal. 3d 257, 272; Stephanie M., supra, 7 Cal.4th at pp. 318-319,
quoting Walker.) Accordingly, we will not reverse a juvenile court's denial of a 388
petition “ ‘unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination [citations.]’ ” (In re Geoffrey G.
(1979) 98 Cal. App. 3d 412, 421-422 (Geoffrey G.); Stephanie M., supra, 7 Cal.4th at
p. 318, quoting Geoffrey G.) Given this high standard, it is a rare situation when the
denial of a motion pursuant to section 388 will merit reversal. (Kimberly F., supra, 56
Cal.App.4th at p. 522.)
Our review of these proceedings leads us to the inescapable conclusion that this is
not one of those “rare situations” where reversal is warranted. John R. filed his 388
petition in August 2013, seeking reinstatement of reunification services based on his
progress in an outpatient substance abuse treatment program, which included anger
management and parenting classes as well as housing assistance and case management
services. By the time the contested matter was heard on October 9, 2013, John R. had
completed the nine-month outpatient program and was in the third and final month of his
aftercare program. In addition, he had attended parent education classes in connection
with his substance abuse treatment and was “pretty close” to obtaining housing with
assistance received through the Shelter Plus Care program. However, while substance
abuse treatment, parent education, and maintenance of stable housing were all
components of John R.’s reunification plan and his progress in that regard is laudable, the
12
crux of these dependency proceedings—as John R., himself, repeatedly stresses—
involved the scope of John R.’s mental health issues and their impact on Joshua’s safety.
With respect to this crucial issue, the simple fact is that—at the time of the
contested hearing on his petition for modification almost two years after the filing of this
dependency action—John R. had still not participated in any mental health treatment.
Rather, he had ignored numerous mental health referrals while the case was pending in
San Francisco. He had failed to follow through with a San Joaquin County referral when
he was living in Stockton, stating that he was unable to participate in counseling because
his life was “not stable.” And he had rebuffed multiple attempts by his Bureau social
worker to engage him in mental health treatment after he moved to Richmond, including
immediate services at a walk-in mental health clinic. At the time of the 388 hearing, John
R. had been referred to Life Long Medical Center for a comprehensive mental health
assessment where there was a two-month wait for services. It was proposed that he
would meet with his substance abuse case manager on a weekly basis in the interim to
deal with any “urgent mental health issues.” As the Bureau social worker opined: “What
[John R.’s] done is when he’s—he’s switched—now he’s saying he’ll go to Lifelong,
before he was saying he would get it through Highland and it never seems to happen. I
think for some reason he doesn’t want to do an assessment.”
The juvenile court identified John R.’s complete failure to engage in the mental
health assessment and treatment component of his reunification plan as the most
important reason for denying his section 388 petition. We agree. While he had made
“some progress” in addressing a substance abuse problem which, by his own admission,
dated back over 25 years, the scope of his mental health issues and their possible impact
on Joshua remained entirely unexplored and completely untreated. Thus, with respect to
this key circumstance, as the juvenile court recognized, “nothing has really changed.”
13
There was therefore no abuse of discretion in denying John R.’s request for
modification.9
C. Wishes of the Minor
Subdivision (h)(1) of Section 366.26 provides that, at all permanency planning
hearings, “the court shall consider the wishes of the child and shall act in the best
interests of the child.” John R. next argues that the juvenile court’s order terminating his
parental rights at the permanency planning hearing on October 9, 2013, is fatally flawed
because the court failed to consider Joshua’s wishes regarding adoption as required by
subdivision (h)(1). For purposes of this statute, evidence of the child’s wishes need not
be in the form of direct testimony, but may be found in court reports prepared for the
hearing. (In re Amanda D. (1997) 55 Cal. App. 4th 813, 820 (Amanda D.).) Moreover,
the juvenile court must only consider the child’s wishes to the extent those wishes are
ascertainable, as a child may not be able to understand the concept of adoption. (In re
Joshua G. (2005) 129 Cal. App. 4th 189, 201.)
Division three of the First District has previously interpreted the mandate
contained in subdivision (h) as requiring that the juvenile court “receive direct evidence
of the children’s wishes regarding termination and adoption” and that the children be
“aware that the proceeding involves the termination of parental rights.” (In re Diana G.
(1992) 10 Cal. App. 4th 1468, 1480.) Numerous subsequent decisions, however, have
rejected this strict reading of the statute. (See, e.g., In re Julian L. (1998) 67 Cal. App. 4th
204, 208-209 [Second Dist.]; Amanda D., supra, 55 Cal. App.4th at p. 820 [Fourth Dist.];
In re Leo M. (1993) 19 Cal. App. 4th 1583, 1591-1593 (Leo M.) [Fifth Dist.].) Under
these later precedents, all that is required is that the juvenile court strive, where possible,
9
Since we conclude that John R. failed to establish changed circumstances sufficient to
support the grant of his petition under section 388, we need not determine whether
reinstatement of reunification services would have promoted Joshua’s best interests under
the factors set forth in Kimberly F. In this regard, we note only that John R. significantly
minimizes the magnitude of the mental health concerns that led to the filing of the
dependency petition in this matter, including the actual and serious risk of harm that they
created for Joshua.
14
“to explore the minor’s feelings regarding his/her biological parents, foster parents, and
prospective adoptive parents, if any, as well as his/her current living arrangements . . . so
that the court will have before it some evidence of the minor’s feelings from which it can
then infer his/her wishes regarding the issue confronting the court.” (Leo M., supra, 19
Cal.App.4th at p. 1592; see also Amanda D., supra, 55 Cal.App.4th at p. 820.)
At the time of the permanency planning hearing in this case, Joshua was a
developmentally delayed eight-year old, with specific challenges in his ability to
understand and process information. His ADHD impacted his ability to focus, and he
was a special education student and regional center client. He had lived with his
grandparents for twenty-two months, consistently reported that he liked living with them,
called them mom and dad, and appeared happy in his placement. Moreover, Joshua was
reported to be bonded to his grandparents and looked to them rather than John R. for
“support, housing, comfort[,] structure, and guidance.” In addition, while the record does
not contain an express statement regarding Joshua’s feelings about adoption, it does
memorialize an April 2013 incident where the minor refused to be transported for a visit
with his father. Specifically, Joshua ran around his school playground for an hour
confused and crying before he could be calmed, contained, and picked up by his
grandmother. He later told the social worker that he had mistakenly thought that he was
being removed from his grandparents’ home. Finally, at the October 2013 permanency
planning hearing, Joshua’s attorney argued in favor of termination of parental rights
based on Joshua’s special needs, including his need for stability. Given his attorney’s
stated position, and absent any evidence in the record to the contrary, the juvenile court
could have properly concluded that Joshua—“assuming he had the capacity to reason and
form an intelligent preference—did not have a contrary wish.” (Compare In re Jesse B.
(1992) 8 Cal. App. 4th 845, 853[holding that, absent contrary evidence, a minor’s wish to
be adopted could be inferred from his attorney’s argument supporting termination of
parental rights, since counsel was statutorily obligated under subdivision (e) of section
317 to interview and ascertain the wishes of his minor client].)
15
Thus, significant evidence exists in the record from which it could be inferred that,
at the time of the permanency planning hearing, Joshua wanted to remain in the home of
his grandparents. Ultimately, however, we need not determine whether this evidence of
Joshua’s wishes is sufficient for purposes of subdivision (h)(1) of section 366.26. Rather,
we conclude that John R. is precluded from pressing the matter on appeal since he failed
to object on this basis in the juvenile court. (See Amanda D., supra, 55 Cal.App.4th at
pp. 819-820; see also G.C., supra, 216 Cal.App.4th at pp. 1398-1399; Crystal J., supra,
12 Cal.App.4th at pp. 411-412; In re Riva M. (1991) 235 Cal. App. 3d 403, 411-412.)
D. Beneficial Relationship Exception
John R. finally contends that—rather than terminating his parental rights—the
juvenile court should have applied the “beneficial relationship” exception to block the
adoption of the minor. At a permanency planning hearing, the juvenile court is charged
with determining the most appropriate permanent plan of out-of-home care for a
dependent child that has been unable to reunify. (In re Casey D. (1999) 70 Cal. App. 4th
38, 50 (Casey D.).) As the most permanent of the available options, adoption is the plan
preferred by the Legislature. (In re Autumn H. (1994) 27 Cal. App. 4th 567, 573 (Autumn
H.).) Thus, if a court finds that a child is likely to be adopted if parental rights are
terminated, it must select adoption as the permanent plan unless it finds a “compelling
reason for determining that termination would be detrimental to the child” due to one or
more of the “exceptional circumstances” specified by statute. (§ 366.26, subd. (c)(1)(B);
In re A.A. (2008) 167 Cal. App. 4th 1292, 1320.)
A single statutory exception is implicated in the present case—where termination
of parental rights 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 proof on both of these prongs: (1) that visitation was consistent and regular; and (2)
that the child would benefit from continuing the relationship. (In re Helen W. (2007) 150
Cal. App. 4th 71, 80-81.) Under the present facts, we conclude that John R. has failed to
establish that his visitation with Joshua was consistent and regular. Thus, the juvenile
16
court did not err by refusing to apply the beneficial relationship exception to block the
minor’s adoption. 10
The Bureau reports for the 12 month review documented only four visits between
John R. and Joshua from April 2, 2012, to December 19, 2012, despite the fact that John
had relocated from Stockton to Richmond. These visits apparently took place in June,
July, August and December. Indeed, John’s own testimony confirmed that, during that
timeframe, he had only attended four or five visits with his son. John also testified that
he had no telephone contact with Joshua prior to the 12-month December 2012 hearing.
According to the social worker, no visits occurred between August and September
because John R. told her that his phone was being disconnected and that he would contact
her to arrange visits. However, he did not get in touch with the social worker until
October 15, 2012.
Thereafter, the social worker reported that—between October 2012 and April
2013—John R. scheduled visits for which he either did not show or failed to confirm. At
the permanency planning hearing, John R. testified that, in fact, he had missed “a couple”
visits and that he had failed to confirm on at least one occasion and therefore did not visit.
Thus, during this period, he only had the single visit in December 2012. John next had a
visit with Joshua on April 30, 2012. In May 2012, John R. failed to appear for his
scheduled visit. He visited with Joshua again on June 6, 2012. Although John R.
challenged the reporting of visits that occurred early in the case while it was being
10
Case law is divided as to the correct standard of review for an order determining the
applicability of a statutory exception to termination of parental rights. (See Autumn H.,
supra, 27 Cal.App.4th at p. 576) [applying the substantial evidence standard]; In re
Jasmine D. (2000) 78 Cal. App. 4th 1339, 1351 [applying the abuse of discretion
standard]; In re K.P. (2012) 203 Cal. App. 4th 614, 621-622 [applying substantial evidence
standard to whether the beneficial parent-child relationship exists; applying abuse of
discretion standard to whether that relationship provides a compelling reason to apply the
exception].) However, the “practical differences” among these standards of review are
not significant (see Jasmine D., supra, 78 Cal.App.4th at p. 1351), and, on this record,
our conclusion would be the same under any of these standards.
17
supervised in San Francisco, he did not contest the Bureau social worker’s reporting with
respect to this post-transfer visitation in any meaningful way.
Finally, according to the maternal grandfather, John R. had their telephone
number, but did not call frequently. At the permanency planning hearing on October 9,
2013, John R. testified that he had telephone contact with his son approximately ten
times, presumably since the 12-month December 2012 review hearing when he had
reported no telephone contact. Thus—even accepting John R.’s version of events—
between April 2012 and the October 2013 permanency planning hearing in this matter,
John visited with Joshua approximately seven times and had telephone contact with the
minor on 10 occasions. Although this paucity of contact may be attributed, in part, to
John R.’s temporary move to Stockton, much of it is attributable to John R.’s own actions
in failing to stay in contact with the social worker, missing visits, and failing to confirm
visits.
Moreover, the record reflects that John R. never did anything proactive to increase
the frequency and level of his contact with Joshua so that he could re-establish a parental
bond with the minor. At the time of the 12-month review in December 2012, John R.
stated that there had been no telephone contact between John and Joshua because the
grandparents had not initiated it. And John testified at the permanency planning hearing
that, throughout the dependency, he visited with the minor when the social worker called
him to set up a visit. There is no evidence in the record that he ever asked that his visits
or other contact with the minor be increased; that he requested that any missed visits be
made up; or even that he demanded the twice a month visitation to which he was entitled
by court order until reunification services were terminated. Moreover, according to the
social worker, John R. has never asked Joshua, the social worker, or the minor’s
caretakers about Joshua’s “health, behavior, school progress, medical needs, or how
Joshua likes living with his grandparents, etc.”—the “usual questions” that would be
expected of a father. In her report for the permanency planning hearing, the social
worker opined that “[t]here is not a significant father and child relationship due to lack of
contact and the lack of consistent parental focus and care.”
18
In its order terminating reunification services at the 12-month review, the juvenile
court expressly found that “dad was unavailable” to the minor and that visitation had
been somewhat sporadic. While the court acknowledged that distance might have
initially made visitation more difficult, it noted that nothing had changed in the two
months that John R. was back in town. Further, at the October 2013 permanency
planning hearing, the juvenile court concluded that the social worker “got it right” when
she stated that “ ‘Joshua understands that Mr. [R.] is his father and he enjoys visiting with
him as a child would an uncle.’ ” It is his grandparents, however, to whom Joshua looks
for “ ‘support, housing[,] comfort, structure and guidance.’ ”
We agree with John R. that the social worker reports in this case were not models
of clarity when describing the history of visitation between father and child. However,
while there may be some dispute regarding the amount and scope of visitation prior to
April 2012, the parties essentially agree that, between April 2012 and the October 2013
permanency planning hearing, there were approximately seven visits and 10 phone calls.
Even reviewing the record in the light most favorable to John R., we simply cannot
conclude that this amounted to consistent visitation and contact sufficient to invoke the
beneficial relationship exception to adoption. There was no error requiring reversal of
the juvenile court’s order terminating parental rights.11
11
In Autumn H., supra, 27 Cal.App.4th at page 575, the court articulated a test for
determining whether a child would benefit from continuing a parental relationship. To
succeed under this test, the parents must establish 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 evaluating this issue, the court
must balance “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.) John R. argues that the Autumn H. standard improperly stacks the decks
in favor of adoption, is contrary to the express language of the statute, and should be
modified. ~(AOB 38-43)~ He also claims that, even accepting the standard articulated in
Autumn H., he has established the existence of a beneficial parental relationship. Finally,
John R. posits that—without knowing more about Joshua’s feelings regarding adoption—
there is simply insufficient evidence to determine whether the benefits of adoption for
Joshua outweighed any benefits from continuing John R.’s parental relationship with the
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III. DISPOSITION
The judgment is affirmed.
_________________________
REARDON, ACTING P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
minor. However, our determination that John R. has failed to establish that he regularly
visited Joshua obviates the need to consider any of these remaining contentions.
20