Filed 1/26/18 In re J.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

J.M., the father of Ju. and Ja., appeals from an order terminating his parental rights under Welfare and Institutions Code section 366.26.[1] He contends that the juvenile court erred when it found that the parental relationship exception did not apply. We find no error and affirm the order.

I.Procedural and Factual Background[2]

In September 2015, the Santa Clara County Department of Family and Children’s Services (Department) filed petitions alleging that three-year-old Ju. and two-year-old Ja. came within the provisions of section 300, subdivisions (b) [failure to protect] and (c) [serious emotional damage]. The petitions alleged: both parents had untreated substance abuse problems; the father had untreated mental health issues; both parents had a history of criminal activity; and the father perpetrated domestic violence against the mother.

According to the initial hearing report, the mother had been using drugs off and on since she was 15 years old, but she denied that she had a drug problem. She also acknowledged domestic violence between the father and her. The father had seizures after he was hit on the head during a prison riot. He did not take his prescribed medications.

At the initial hearing on September 21, 2015, the juvenile court ordered that the girls be detained and ordered supervised visitation for both parents.

Four days later, the juvenile court issued a temporary restraining order against the father. The mother had alleged that the father was frequently verbally abusive in front of the girls and had threatened to kill her and abscond with the girls. The father also cursed at the mother in the social worker’s presence and refused to leave despite the social worker’s repeated requests.

The jurisdiction/deposition report recommended that the petitions be sustained and that family reunification services be provided to both parents. The girls had been placed in the care of a maternal relative. Both parents had extensive child welfare histories. The father had a lengthy criminal history, including multiple drug-related convictions and a felony conviction for domestic violence. The father denied that he had a domestic violence conviction in his interview with the social worker.

The report also summarized the father’s 22-year history of abuse of methamphetamines, his history of domestic violence perpetrated against the mother as well as other women, and his untreated mental health issues. According to the maternal great-grandmother, the father is “a ‘scary’ person” and “has ‘no shame.’ ” He is not allowed in her home due to his behavior. Another family member stated that the father is unable to control his anger. The paternal grandmother had observed that the father had displayed impulsive behaviors after he sustained a traumatic brain injury. She also believed that these behaviors might be aggravated by his substance abuse. The father had attempted suicide, but denied that he had any mental health problems. The father has three older children with two other women and he did not have custody of these children.

Following a contested jurisdiction/disposition hearing in January 2016, the juvenile court sustained the petitions and ordered reunification services for both parents. The mother’s request for a permanent restraining order was denied.

In an interim review report, which was dated February 17, 2016, the social worker stated that the father had made some progress on his case plan. He was participating in both NA and dependency wellness groups. After conducting a psychological evaluation, Dr. Gerald Chambers referred the father to a psychiatrist and a psychotherapist for his “uncontrolled bouts of volatility, mood spectrum disorder, issues of suicide and interpersonal violence.” The social worker was concerned that the father continued to engage in acts of intimidation and violence towards the mother. The parents had recently been involved in an incident in which the father brandished a gun at a man who was providing a ride for the mother. The mother did not contact the police and the father denied that the incident occurred. The father had not yet begun counseling, though it was a part of his case plan.

At the interim review hearing, the juvenile court ordered that a psychological evaluation be completed for the father after he had achieved three months of sobriety.

The six-month review report, which was dated June 2, 2016, recommended that reunification services continue for both parents. A psychological evaluation had not yet been completed because the father continued to test positive for methamphetamines. The father was “kicked out” of the paternal grandmother’s home due to a verbal altercation with her. The paternal grandmother also informed the social worker that she could no longer supervise the father’s visits with the girls.

The father completed the parent orientation class. Though he attended the parenting without violence class, the instructor stated that he would not receive credit for the class due to his consistent tardiness and lack of effort. The father missed 23 drug tests and tested positive in four of his 13 drug tests. The father’s attendance at NA meetings had been verified until March. He completed his substance abuse assessment and his drug treatment program. However, he had not yet contacted the 52-week batterer’s intervention program to enroll in a class.

The social worker observed a visit between the girls and the father. Ju. was uninterested in any interactions with the father. When Ja. was frightened, the father did not comfort her. He told the social worker that the previous visits included watching television and taking naps. The social worker referred the father to Kindred Souls for therapeutic visits. The therapist at Kindred Souls had “ ‘serious concerns’ ” about the interactions between the father and the girls. The social worker noted that the father was “attempting to complete his case plan, but [was] unsuccessful at changing his behavior.”

An addendum report, which was dated July 20, 2016, recommended that family reunification services continue for both parents. The report stated that the father continued to have difficulty managing his anger during his visits with the girls. He also arrived at these visits while under the influence of methamphetamines. The social worker documented several examples of the father’s inappropriate and/or aggressive behavior with the girls and with the social workers during the supervised visits between June 6 and July 7, 2016. The social worker observed that the father showed no empathy and little affection toward the girls during visits. He was also unable to recognize that his behavior was inappropriate.

On September 1, 2016, the six-month review hearing was held. The juvenile court continued reunification services for both parents and reduced the father’s visits to one hour per week in a therapeutic setting.

The 12-month review report, which was dated November 4, 2016, recommended that the juvenile court terminate family reunification services for both parents and set a section 366.26 hearing to identify a permanent plan.

Ju. and Ja. continued to reside with the maternal relative. They were bonded to her and she was committed to adopting them. They had significant tooth decay, but no other medical problems.

The father continued to attend therapeutic visits with the girls, but was currently testing positive for methamphetamines. He enrolled in another parenting without violence class, but was dropped from the class when he missed three classes in October. Out of 20 random drug tests, the father missed seven tests and tested positive for methamphetamines in five of the tests. He provided one “sign-in” sheet verifying his attendance at NA meetings. He moved into a sober living facility, but was dismissed from the program five days later due to an altercation with another client. The father was denied entry into the 52-week batterer’s intervention program due to his lack of accountability and rudeness. According to the director, “his first impression is utterly terrible.” The director also noted that the father failed to understand how his arguing might affect his children. She requested that he be sober during intake. The social worker referred the father to the program again. However, he denied perpetrating domestic violence at intake and did not enroll in the program.

The father’s visits with the girls continued to be therapeutically supervised. The therapist believed that the father might have “cognitive issues” that interfered with his ability to “process situations” with the girls. The visits seemed to be smoother when the father was “less stressed.” However, even at these visits he still had difficulty managing the girls. According to the therapist, the father “has a hard time ‘understanding that these are just kids,’ and that he has stalled in improving his interactions with the girls.”

The father continued to minimize and/or hide his drug use and his aggressive behaviors. He did not accept responsibility for his involvement with the Department. Though he continued to attempt to complete his case plan, he was unable to change his behavior. The social worker continued to receive reports of the father’s aggression towards others in the community. He seemed to care for the girls, but he referred to them as “property” and yelled at the caregiver to “remember her place . . . these are my kids.” The social worker did not believe it was safe to return the girls to the father’s care due to his unstable behaviors, substance abuse, and unaddressed domestic violence tendencies.

The addendum report, which was dated January 11, 2017, stated that the father was referred again to parenting without violence classes. However, after he missed the first two classes, he was dropped from the class. The father had not begun the batterer’s intervention program. Out of five recent drug tests, he tested positive twice for methamphetamines. He told the social worker that he had begun using drugs again because he had “lost hope . . . .”

There continued to be concerns about the father’s behavior during visitation. The notes from his therapeutic visits indicated that he could not “autonomously parent his daughters as there [was] a constant need for re-direction from the therapist.” He was unable to read the girls’ cues and to provide needed comfort.

Dr. Mulcahy, who conducted a psychological evaluation of the father, concluded that it was “ ‘unlikely that [the father] could function fully and independent as the primary, full time custodial parent.’ ” Dr. Mulcahy also concluded that additional reunification services were unlikely to alter the father’s approach to caring for the girls.

In January 2017, the juvenile court held a 12-month review hearing. Family reunification services were terminated and a section 366.26 hearing was set. Supervised visitation once a week for one hour was ordered for the father.

The section 366.26 report, which was dated May 1, 2017, recommended that the juvenile court terminate parental rights and free Ju. and Ja. for adoption. Ju. was now five years old and Ja. was four years old. They were excited about moving to their new home with the maternal relative. The social worker noted that the girls were exposed to extreme trauma when they were in their parents’ care, but they had “benefited from the safe, consistent, nurturing environment” while in the maternal relative’s care. The girls were also able to maintain their sibling relationship in this placement. If adoption was to be the permanent plan, the maternal relative intended that the girls would remain in contact with their parents as long as it was in the girls’ best interest to do so.

The report also stated that the father continued to visit the girls at Kindred Souls and had received high ratings on his visitation reports.

The contested section 366.26 hearing was held in June 2017. Sharon Jenkins testified as an expert in permanency planning and adoptability. In November 2016, the father’s visits with the girls were increased to two hours per week of therapeutic visitation. She explained that therapeutic visitation “allows the parents and the children to spend time in a manner where coaching is given and therapeutic support is given as needed both to the parent and to the children.” The father regularly scored well on the reports written by the therapist. However, Jenkins was concerned about the narrative portion of the reports. She noted that the father showed up on time and clearly loved the girls, but he had trouble when the girls exhibited age-appropriate behavior. Several times he raised his voice. He told them, “[Y]ou’re pissing me off.” He also said, “I went to see you once a week and this is the behavior I get when I see you.” The father attempted to have telephone contact with the girls, but the calls were stopped because they were inappropriate. On one occasion, he told one of the girls that they were going to be returned to his custody. Jenkins did not understand why the scores on the reports did not correspond to the narrative portions.

Jenkins did not change the father’s visits from therapeutic to supervised visits due to his lack of compliance with his case plan, particularly his positive drug tests, and his inability to act appropriately in response to the girls’ behavior. When the father raised his voice and the girls cried, the therapist would intervene, but it was very difficult for the father to “de-escalate.” Despite therapeutic visitation since the beginning of the dependency, the father’s behavior was inappropriate during a visit in mid-May 2017. Jenkins recommended that parental rights be terminated and the girls be freed for adoption. She recommended adoption rather than legal guardianship based on the young age of the girls. Since they were thriving in the care of the maternal relative, she believed that the most permanent plan possible was in their best interest.

The father testified that he had visits of one and a half hours per week. The visits were the highlight of his week. During the visits, they “sit down and play, ignore everybody else and that’s it, that’s all.” He had learned to be more patient and to listen. He read parenting books and did not need a social worker or therapist to show him how to be a parent. The girls were very happy during the visits. He thought that the girls would benefit from continuing their relationship with him. He explained: “I’ve read somewhere where it says, you know, the dads are the girl’s first love. They model who, you know, they end up dating or when they grow up, they model after their dad. Their dad is the most important figure in their life and I believe that.” He thought he was an “okay” parent.

Following argument, the juvenile court terminated parental rights. Regarding the parental relationship exception to adoption, the juvenile court found that the father had visited regularly. However, the juvenile court also was concerned that the father had not progressed beyond therapeutically supervised visits and this level of supervision was still necessary to provide for the girls’ physical and emotional safety. It also found that overwhelming evidence supported the conclusion that the benefits of adoption outweighed the benefits of preserving the parent-child relationship.

II.Discussion

The father contends that the juvenile court erred when it failed to apply the parental relationship exception to adoption.

“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 due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) This is known as the parental relationship exception.

The proponent of the parental relationship exception bears the burden of producing evidence of the existence of a beneficial parental relationship. Because the existence of such a relationship is a factual issue, the court’s finding on this point is reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) “[A] challenge to a juvenile court’s finding that there is no beneficial relationship amounts to a contention that the ‘undisputed facts lead to only one conclusion.’ [Citation.] Unless the undisputed facts established the existence of a beneficial parental or sibling relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed.” (Ibid.)

Even if the juvenile court finds a beneficial parental relationship, the parental relationship exception does not apply unless the court also finds that the existence of that relationship constitutes a “compelling reason for determining that termination would be detrimental . . . .” (§ 366.26, subd. (c)(1)(B).) A juvenile court’s ruling on whether there is a “compelling reason” is reviewed for abuse of discretion as the court must “determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption.” (Bailey J., supra, 189 Cal.App.4th at p. 1315.)

“ ‘The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.] Evidence of ‘frequent and loving contact’ is not sufficient to establish the existence of a beneficial parental relationship.” (Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.)

Here, there was substantial evidence to support the juvenile court’s finding that the father had failed to show the existence of a beneficial parental relationship. Ju. was five years old and Ja. was four years old and they had not been in the father’s custody for 21 months. The father consistently visited the girls. However, he had not progressed beyond therapeutic visitation due to his substance abuse and his inability to act appropriately with them. Since the presence of a therapist was necessary to ensure the physical and emotional safety of the girls, the father’s relationship to the girls cannot be characterized as beneficial to them. Based on this record, there was substantial evidence to support the juvenile court’s finding that there was not “ ‘a significant, positive, emotional attachment’ ” between the girls and the father. (Bailey J., supra, 189 Cal.App.4th at p. 1315.)

The father, however, cites to other portions of the record to support his position. But, under the substantial evidence standard, this court must resolve all conflicts in the evidence in favor of the Department. Accordingly, we reject the father’s contention.

Since there was substantial evidence to support the juvenile court’s finding that there was no beneficial parental relationship, we need not consider whether the juvenile court abused its discretion when it found that there was not a compelling reason for determining that termination of parental rights would be detrimental to the girls.

III.Disposition

The order is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.