In re J.C. CA2/1 ( 2020 )

Filed 12/30/20 In re J.C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.C., a Person Coming Under B305197
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK23137)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Petitioner and Respondent,
v.
JONATHAN C.,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rudolph A. Diaz, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
Jonathan C. (Father) appeals after the juvenile
court terminated his parental rights over three-year-old J.C.
under Welfare and Institutions Code1 section 366.26. Father
contends the trial court erred in not finding an exception to
termination of parental rights as described in section 366.26,
subdivision (c)(1)(B)(i). We conclude the court properly applied
the statute and therefore affirm.
STATEMENT OF FACTS
Three-month-old J.C. came to the attention of the
Los Angeles County Department of Children and Family Services
(DCFS) in May 2017 when J.C.’s teenaged uncle reported that
J.C.’s maternal grandmother conducted drug transactions behind
the family home, provided drugs to J.C.’s mother (Mother),
argued with Mother, and chased Mother with a hammer.2 J.C.’s
uncle also reported Mother used drugs during her pregnancy and
was not taking proper care of J.C.
A DCFS social worker visited the home and learned from
J.C.’s maternal great-grandmother that Mother, who had been
staying at the home for a short period of time, would often
leave J.C. with his great-grandmother without asking or
otherwise providing for his care. Mother revealed she had
an open investigation in Orange County regarding allegations
she was using drugs and neglecting J.C. She admitted that, if
she were tested for drugs, the results would be positive as she
smoked marijuana and had recently used methamphetamine.
1All unspecified statutory references are to the Welfare
and Institutions Code.
2 Mother is not a party to this appeal.
2
On May 26, 2017, DCFS served Mother with a removal
order for the baby. Mother told the social worker she did not
know who or where J.C.’s father was and did not want him
involved in the case. Mother, however, previously identified
Father as J.C.’s biological father in the Orange County
investigation. The social worker located Father in a maximum
security jail complex in Orange, California, following his
conviction of second degree robbery and receipt of stolen property.
Father told the social worker he was not listed as the father on
J.C.’s birth certificate and was not certain he was J.C.’s biological
father.
DCFS filed a section 300 petition on J.C.’s behalf on
June 1, 2017, alleging Mother’s substance abuse and mental and
emotional problems rendered her incapable of providing regular
care and supervision for J.C.
Father was not present for the detention hearing, at which
time the juvenile court made a prima facie finding that J.C. was a
child described by section 300 and ordered him detained. Father
was granted monitored visitation.
At the arraignment hearing the following week, Father
was present and requested a finding of paternity. The juvenile
court deferred the issue of paternity, ordered DCFS to investigate
a possible placement of J.C. with Father, and ordered monitored
visitation for Father twice a week for two hours per visit.
At the adjudication hearing one month later, the court
found the allegations in the section 300 petition regarding
Mother to be true and maintained the detention and visitation
orders in effect.
Father was present at the disposition hearing on
August 18, 2017, at which time the juvenile court found him
3
to be J.C.’s presumed father and, over the objection of DCFS,
released J.C. to Father, who was 19 years old at the time. The
court ordered family maintenance services and ordered Father
to submit to 10 random or on demand drug tests, participate
in Alanon, complete parenting classes, enroll in individual
counseling (including for drug and alcohol issues), and comply
with all criminal court orders.
In February 2018, DCFS reported that Father and J.C.
lived in the home of Father’s adoptive parents along with the
paternal uncle, all of whom offered their support in caring for
J.C. J.C.’s paternal grandmother drove Father and J.C. to
various appointments and babysat for the child. The social
worker noted J.C. appeared to be attached to Father and was
comfortable in his care, and the paternal grandfather reported
that, while he initially doubted Father’s ability to become a
competent parent at such a young age, he was “surprised at
the person Father ha[d] grown into.”
Nonetheless, despite apparent strides made in parenting,
Father was not in compliance with his case plan during this
period. Although he completed a course of instruction in effective
parenting and attended to his criminal court obligations,
he missed several drug tests and had not yet participated in
individual counseling or Alanon.
Father’s situation quickly devolved. On May 23, 2018,
he was arrested and incarcerated for violating the terms of his
probation when he failed to participate in his drug treatment
program and tested positive for methamphetamine on at least
three occasions. Father admitted to using methamphetamine
twice, once after “beating another (criminal) case” and again prior
4
to a court hearing because he “got a little nervous.” He consented
to J.C.’s detention in the paternal grandparents’ home.
DCFS filed a section 342 petition on July 6, 2018, alleging
that Father’s history of substance abuse and current use of
methamphetamine posed a risk of serious physical harm to
J.C. under section 300, subdivision (b)(1). DCFS further alleged
that Father was arrested for violating the terms of his criminal
probation, and he failed to participate in his court ordered case
plan in the instant case.
By September 7, 2018, Father had been released from
prison and was enrolled in a residential treatment program.
A staff member advised Father’s social worker that he “ ‘has
not been doing too well in the program. He has a really bad
attitude.’ ” The staff member was also concerned about Father’s
honesty, as he claimed a number of medical “emergencies” that
purportedly required him to leave the facility, but instead of
seeking medical assistance, he spent the time away from the
house with his girlfriend. Father also sought and was granted
permission to leave the house to appear at a court hearing that,
according to the record, he did not attend.
The juvenile court sustained the allegations in the
section 342 petition, ordered reunification services for Father,
and granted him twice-per-week monitored visits with J.C.
Six months later, DCFS noted in its status review report
that Father regularly visited J.C. at the paternal grandparents’
home. The paternal grandfather reported that, during the visits,
which varied in duration from quick drop-ins to two hours or
longer, Father interacted with J.C., made the child snacks, and
supervised him while he played.
5
Although Father submitted to three negative drug tests
in October and November 2018, he was a “no show” for another
13 tests between November 2018 and February 2019. He was
on a waiting list to enter a sober living facility. The case worker
also noted it was difficult to schedule face-to-face meetings with
Father because he would not return calls. He also failed to
attend a Child and Family Team meeting in January 2019 with
the paternal relatives. At that meeting, Father’s family advised
DCFS that the plan was for J.C. to live with the paternal
aunt and her husband should Father not reunify with his son.
At a subsequent meeting that Father did attend, he agreed to
the plan.
Prior to a six-month review hearing on April 15, 2019,
Father provided proof of completion of a drug and alcohol
treatment program between July and October 2018. He reported
that he was enrolled in after care and was required to continue
to submit to drug tests. At the hearing, the juvenile court
agreed Father had made partial progress toward alleviating
or mitigating the causes necessitating placement and ordered
reunification services to continue.
Shortly thereafter, the facility through which Father
was purportedly receiving after care reported it did not actually
provide after care services and that he had not drug tested there
or been in contact since he finished his treatment in October
2018.
In July 2019, DCFS reported that J.C. had adjusted well
to living with the paternal aunt and uncle. Father was then
residing at the paternal grandparents’ home while working,
participating in his court-ordered programs, and regularly
visiting J.C. Father had submitted to six out of 12 drug tests
6
since the prior court hearing, all of which were negative. He
failed to appear for the remaining six tests. He provided DCFS
with proof of completion of phase one of a treatment program.
DCFS was assisting him with housing and recommended in its
report that family reunification services continue.
After learning, however, that Father had relapsed with
alcohol, missed another drug testing appointment, and only
attended two individual counseling sessions, DCFS recommended
the following month that the court terminate his reunification
services: “DCFS acknowledges that the father has a bond
with the child [J.C.] and is now addressing his [c]ourt orders.
However, in review of the life of this case, this family has been
provided [f]amily [r]eunification [s]ervices for over 12 months.
Father is in partial compliance in that[,] although he has
completed [the first phase], he will require 16 more weeks
to complete his outpatient program. [DCFS] continues to be
concerned about the father’s level of commitment to his sobriety.
Given [the] father’s history of drug use, his relapse in May,
and the fact that [the] father has only attended two sessions
of individual therapy in 12 months, it is imperative that [the]
father address his underlying need to use methamphetamine.”
At the September 5, 2019 contested section 366.21,
subdivision (f) review hearing, a social worker testified that
Father’s visitation with J.C. was not as consistent as had been
reported to DCFS. Father had told the paternal aunt (his sister)
to report that he was regularly visiting his son when he was
not doing so. The juvenile court noted that Father had received
one year of family maintenance and reunification services,
but still was “not ready to receive him at this time. No one is
claiming . . . , not even Father, that he’s ready to parent this child
7
and I don’t think he is.” The court terminated Father’s
reunification services, finding that the progress he made was
not significant enough and returning J.C. to him would create
a substantial risk of detriment to the child’s well-being.3
Five months later, DCFS reported that J.C. remained
safely and happily in the home of the paternal aunt and uncle,
who wanted to adopt him. Father continued to visit the child,
but the paternal relatives indicated he was “visiting minimally.”
A social worker reported the putative adoptive parents loved J.C.
and shared a close bond with him. The social worker observed
the child to be comfortable in their care, and also observed J.C.
to be bonded to the putative adoptive parents, who he called
“Mom” and “Dad.”
At the February 6, 2020, permanency planning hearing,
Father testified that he would visit J.C. once or twice a week;
he was not allowed to have overnight visits and had to return
the child to the caregivers at the end of the visits. He stated
the two would spend time at the park, during which time J.C.
would call him “Dad or Daddy.” J.C. was always excited to see
his father at the start of the visits and would cry at the end.
On cross-examination, Father admitted he was not involved in
J.C.’s medical care, did not know the name of his son’s primary
3 Father filed a section 388 petition on January 6, 2020,
requesting reunification services be reinstated as he was
participating in a treatment program that provided group
therapy, individual counseling, drug testing, 12-step meetings,
and a sponsor. The juvenile court denied the petition, finding it
did not state a change in circumstance and the proposed change
to the order would not be in J.C.’s best interests. He did not
appeal that order.
8
physician, and was not informed when J.C. had medical
appointments.
When asked what he wanted the juvenile court to do,
Father replied that he wanted more time “[j]ust to figure
everything out.” Father’s counsel argued Father’s visits with J.C.
had been consistent and that J.C. “recognizes Father as Father
[h]as testified, and a bond between Father and [J.C.] would be in
the best interest for [J.C.] to continue.” Father’s counsel asked
the court to apply the section 366.26, subdivision (c)(1)(B)(i)
exception, to not terminate his parental rights, and to order J.C.
into legal guardianship instead of adoption.
The court found by clear and convincing evidence that
J.C. was adoptable. The court determined that although there
was a bond between Father and J.C., the relationship between
father and son was outweighed by the benefit J.C. would receive
through the permanency and stability of adoption. The court
found that Father had not met his burden to apply the exception
to adoption and terminated parental rights over J.C.
Father appealed.
DISCUSSION
On appeal, Father contends the juvenile court erred in
terminating his parental rights because the evidence established
his relationship with J.C. outweighed any benefit the child would
receive through adoption. We disagree.
At a permanency planning hearing held in accordance with
section 366.26, the juvenile court is charged with determining
the most appropriate permanent plan of out-of-home care for a
dependent child who has been unable to reunify. (In re Caden C.
(2019) 34 Cal. App. 5th 87, 103.) “When reunification efforts with
a parent fail, as they did in this case, the focus shifts from family
9
preservation ‘to the needs of the child for permanency and
stability.’ ” (Ibid.; In re Marilyn H. (1993) 5 Cal. 4th 295, 309.)
Thus, permanency planning hearings are “designed to protect
children’s ‘compelling rights . . . to have a placement that is
stable, permanent, and that allows the caretaker to make a full
emotional commitment to the child.’ [Citation.]” (In re Celine R.
(2003) 31 Cal. 4th 45, 52–53.)
At a permanency planning hearing, the court may order
one of three alternatives—adoption, guardianship, or long-term
foster care. (In re S.B. (2008) 164 Cal. App. 4th 289, 296–297.) If
a child is adoptable, there is a strong preference for adoption over
the alternative permanency plans. (Id. at p. 297.) Adoption must
be selected as the permanent plan for an adoptable child and
parental rights terminated unless the court finds “a compelling
reason for determining that termination would be detrimental
to the child [where] . . . [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 burden is on the party seeking to prove the exception. (In re
Megan S. (2002) 104 Cal. App. 4th 247, 252.)
“ ‘We apply the substantial evidence standard of review
to the factual issue of the existence of a beneficial parental
relationship, and the abuse of discretion standard to the
determination of whether there is a compelling reason for finding
that termination would be detrimental to the child.’ ” (In re
Collin E. (2018) 25 Cal. App. 5th 647, 663.)
Here, the record reveals that Father’s visitation with his
son was not consistent even when he was not incarcerated, and,
although his childcare skills on those occasions when he did visit
10
were often commendable, particularly for a parent so young,
he continued to have substance abuse issues.
On appeal, however, Father is essentially silent on the
topic of his methamphetamine and alcohol use, preferring
instead to focus on the efforts he made to reunify with his son.
But we cannot ignore that during the year-long reunification
period, Father did not demonstrate a commitment to J.C. by
meaningfully participating in services to overcome his addiction.
Only eight months after J.C. was first released to Father’s care,
Father was arrested and incarcerated for violating the terms
of his probation and testing positive for methamphetamine.
He failed to complete the vast majority of his court-ordered
drug tests—13 out of 16—between November 2018 and February
2019. He attended only two sessions of individual therapy in
12 months, thus evidencing a disregard or inability to “address
his underlying need to use methamphetamine.”
Father asserts that, “despite [J.C.] being moved to the
paternal grandparents or the parental aunt, the relationship
between [them] continued to grow” as they would “visit twice
per week for six hours.” But the evidence is less positive,
indicating that Father “visit[ed] minimally” while J.C. was in
the care of his paternal aunt and uncle.
All of these considerations weigh against a finding of a
beneficial parental relationship. (In re Collin E., supra, 25
Cal.App.4th at p. 664 [“the ‘benefit’ prong of section 366.26,
subdivision (c)(1)(B)(i) requires the juvenile court to assess
whether the parent-child relationship would ‘promote[ ] 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’ ”].) Although we do not question that Father
11
and J.C. had a close and loving relationship, J.C. exhibited the
same attachment to his paternal aunt and uncle, who he called
“Mom” and “Dad.” The exception does not permit a parent
who has failed to reunify with an adoptable child to “derail
an adoption merely by showing the child would derive some
benefit from continuing a relationship maintained during
periods of visitation with the parent.” (In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1348.)
The court did not abuse its discretion. The benefit of
a stable, permanent adoptive home for J.C. outweighed the
benefit of a continued relationship with Father, who, despite
his partially successful visitation record, made insufficient
progress toward overcoming his substance abuse problems
leading to J.C.’s dependency. This is not the extraordinary
case where an adoption should have been foreclosed by the
exception provided in section 366.26, subdivision (c)(1)(B)(i).
12
DISPOSITION
The juvenile court order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P.J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
13