Filed 7/28/17 In re A.C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re A.C., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

R.C. et al.,

Defendants and Appellants.


E067438

(Super.Ct.No. RIJ400044)

OPINION


APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant R.C.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant S.H.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Appellant R.C. (father) appeals from the juvenile court’s order terminating parental rights as to his daughter, A.C. (the child). He claims that the court denied him visitation without making a finding that visits were detrimental to the child, and that “such an error resulted in the termination of parental rights.” Appellant S.H. (mother) filed a separate brief joining in father’s argument and claiming that, should we reverse the termination of father’s parental rights, the order terminating her parental rights should be reversed as well. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2014, the Riverside County Department of Public Social Services (DPSS) filed a Welfare and Institutions Code section 300 petition on behalf of the child, who was two months old at the time. The petition alleged that she came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition included the allegations that the child had been hospitalized since birth due to medical issues, mother suffered from mental health issues, mother and father (the parents) both had histories of substance abuse and criminal activity, and father was currently incarcerated and unable to provide support for the child.
The social worker filed a detention report on January 13, 2014, and reported that the child remained hospitalized due to a birth defect involving her intestines. She required two surgeries and possibly more. The child was currently being fed with a feeding tube. Mother reportedly said she was overwhelmed with the prospect of caring for the child, and father was incarcerated for a domestic violence incident, with a release date of February 3, 2014. The social worker contacted the paternal great-grandfather on January 9, 2014, who reported that he was willing to have the child placed with him and was willing to attend any medical fragile classes for her. The social worker submitted a referral to the Relative Assessment Unit (RAU).
The court held a detention hearing on January 14, 2014. It detained the child in the care of DPSS and ordered that she be placed in a suitable placement upon discharge from the hospital. The court found father to be the presumed father. It also ordered that contact between the parents and the child be as directed/approved by DPSS and that there be supervised visitation at a minimum of one visit a week.
The social worker filed an amended petition on February 5, 2014, which deleted the section 300, subdivision (g) allegation stating that father was currently incarcerated and unable to care for the child.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on February 13, 2014, recommending that the court sustain the amended petition, declare the child a dependent, and provide both parents reunification services. The child remained hospitalized, and the court ordered that, upon release from the hospital, she be placed in a medically fragile foster home. The social worker interviewed father on February 3, 2014, and he said he was released from jail that morning and was residing with mother. He believed the dependency case should be dropped, since he was released from jail and was able to care for the child.
A contested jurisdiction/disposition hearing was held on February 19, 2014. The court sustained the petition and declared the child a dependent of the court. It then ordered reunification services for father and mother. Father’s case plan included the requirements that he participate in general counseling and complete a three-part medically fragile training course, CPR/first aid training, and one-on-one training with the public health nurse. He was also required to complete a parenting education program and participate in random drug testing.
Six-month Status Review
The social worker filed a six-month status review report on August 6, 2014, and recommended that the child be continued as a dependent and remain in her current placement, but that reunification services be terminated. The child was discharged from the hospital on June 18, 2014, and placed in a medically fragile foster home. She was thriving in this placement and appeared comfortable and bonded with the caregiver. Her medical condition was generally stable, but she still needed skilled nursing care and several specialized appointments a month.
The social worker reported that father was living in between his mother’s house and his friend’s house. He initially said he and mother were in a romantic relationship, but then, as of July 29, 2014, they were no longer involved. Father was unemployed for most of the reporting period. However, on June 24, 2014, he reported that he had two jobs through “the union.” He said he was getting paid “under the table,” and he was unable to provide proof of employment.
The social worker reported that father was given a referral for individual counseling at MFI Recovery Center (MFI), but he insisted that he did not need it. The social worker received a call from MFI stating that the parents began couples therapy two weeks prior, but then decided to do individual therapy. The therapist told the social worker that the parents’ relationship was volatile. Their attendance at counseling was inconsistent, so it minimized any therapeutic benefit. Father took a temporary leave from counseling, then returned to therapy on June 5, 2014. The therapist reported that father had difficulty taking responsibility and when he got angry and he tended to break objects. On July 18, 2014, father did not show up for his session or call to cancel. As a result, he was discharged from MFI.
The social worker reported that, prior to being discharged, father participated in a parenting education class at MFI, but missed a few classes. He needed three more two-hour sessions to fulfill his parenting education requirement; however, he did not complete them. As to his random drug testing requirement, father failed to show up for six out of 10 of the tests, and the other test results were negative.
The social worker recommended terminating reunification services, given the parents’ failure to demonstrate sufficient benefit from six months of services. The social worker further recommended that a section 366.26 hearing be set and adoption be the permanent plan. The social worker also recommended that the court change the parents’ visitation to two times a month for one hour each.
In an addendum report, the social worker reported that the home of the paternal great-grandparents was certified by the RAU on March 12, 2014. However, the public health nurse determined that they did not have full knowledge of the child’s extensive medical needs. Moreover, the social worker suspected that father lived in the home of the paternal great-grandparents. There was significant concern about the paternal great-grandparents’ ability and/or willingness to set appropriate limits with father and to take full responsibility for the child’s care. Thus, DPSS was not seeking to place the child with them at that time.
A contested six-month review hearing was held on September 9, 2014. The court continued father’s reunification services, but terminated mother’s. The court asked the social worker to submit an updated case plan. It also ordered visitation to be supervised by an adult approved by DPSS, twice a week for two hours each visit.
The social worker filed an addendum report on October 6, 2014, which noted her concerns about father’s anger management. She reported that he recently exhibited verbal and physical aggression toward the maternal grandparents and their property, which resulted in them obtaining a restraining order against him. The maternal grandparents stated that father continually threatened them with violence and bodily injury, and he attempted to run them over with his car. The social worker further reported that father had been observed to make threats to DPSS, mother, the foster mother, and service providers for the child. Thus, anger management was a significant issue in father maintaining a safe and stable home environment for the child.
On December 22, 2014, the social worker filed an ex parte application to the change the visitation order to once a week for two hours, while the child was hospitalized. The child was hospitalized on October 14, 2014, and the social worker instructed the hospital that father was prohibited from providing hands-on care to the child. The social worker told the hospital social worker that if father interfered with the child’s care, he should be asked to leave the premises. On October 15, 2014, father became upset when he was told he was not to provide any hands-on care to the child. He tried to leave the hospital with the child. The social worker reported that father had a lack of ability to control his anger, and his angry outbursts created an unsafe environment for those around him. She noted that such angry outbursts occurred in the presence of the child at the hospital. However, the court denied the ex parte application.
Twelve-month Status Review
The social worker filed a 12-month status review report recommending that the court continue the child as a dependent, terminate father’s reunification services, set a section 366.26 hearing to terminate parental rights, and implement adoption as the permanent plan. The social worker reported that most of father’s visits during that reporting period were without incident, with the exception of the visit on December 10, 2014, when father had a supervised visit at the DPSS office. At the end of that visit, father answered a call on his cell phone. As he was on the phone, he gathered his belongings and exited the visitation room, and the social worker escorted him to the lobby area. The social worker then left. After father ended his phone conversation, he asked the receptionist for re-entry to the visitation room to say goodbye to the child. The social worker had already left the building, so the receptionist told father he would not be allowed re-entry. Father asked the security guard if he could go back and say goodbye to the child. The security guard talked to the social worker, who said the visit had ended. When the security guard gave him the message, father stated, “Are you f---in’ serious? You’re really going to make me flip out in this b-----.” Father continued to curse, and the sheriff’s department was called; however, father was gone by the time the deputies arrived.
The social worker opined that there was a substantial risk of detriment to the safety and well-being of the child should she be returned to father’s care. She specifically noted that he made some effort in his services, but had demonstrated little benefit from his participation. There were significant concerns regarding his progress toward changing his behavior to ensure the safety of the child. Furthermore, his participation in his services was inconsistent. The social worker also noted the physical violence and verbal aggression the parents exhibited toward each other. The social worker concluded that anger management and domestic violence remained a significant issue in maintaining a safe and stable home environment for the child.
The court held a contested 12-month review hearing on April 13, 2015, but continued it. The social worker filed an addendum report on April 24, 2015, and reported that father contacted her to tell her he was no longer participating in therapeutic services and anger management. He accused her of making false statements in her reports and threatened her, using inappropriate language.
The court held a 12-month review hearing on May 20, 2015. County counsel asked the court to follow the recommendation and terminate father’s services. She also requested a reduction in father’s visitation, noting that visits had been volatile lately. The court found that father’s progress in his case plan was unsatisfactory and terminated his services. It then set a section 366.26 hearing. The court also ordered visitation to be a minimum of two times a month, noting that DPSS had the ability to offer more if appropriate.
Section 388 and Section 366.26
On September 2, 2015, father filed a section 388 petition, requesting the court to vacate the section 366.26 hearing and grant him six more months of reunification services. As to changed circumstances, he alleged that he finished two parenting courses and two anger management courses, he gained insight from his classes, he had already completed most of his case plan, he communicated effectively with the social worker, and he visited the child consistently. As to best interest of the child, father alleged that he knew how to take care of her medical needs, he loved her and was the only constant in her life, he had never been accused of neglecting her, and he wanted to be a father to her.
The social worker filed a section 366.26/366.3 report on September 2, 2015, and recommended that the child continue as a dependent in her current placement, that a section 366.26 hearing be set and adoption be the permanent plan, and that visitation remain supervised and be two times a month for one hour each. The social worker reported that father interacted appropriately with the child during visits. However, there were ongoing concerns with his behavior toward DPSS staff during visits, including verbal aggression, using abusive language, and threatening to “watch” them, including telling a visitation monitor that he knew the make, model, and color of the car she drove. The social worker concluded that the prognosis of returning the child to the parents was poor. Father had been given 12 months of services, but showed little benefit, especially from his anger management classes. He continued to scream profanities and make threats to anyone who disagreed with him, and he had not displayed the patience or ability to care for a medically fragile child.
On November 9, 2015, the court granted a temporary restraining order (TRO) against father, with social worker C.M. as the protected person. C.M. requested the TRO because she feared for her safety, since father had repeatedly cursed at her, called her names, raised his voice at her, and demonstrated a hostile attitude toward her. On October 8, 2015, C.M. observed father standing outside her DPSS office near the employee parking security gate. She exited the parking lot in her car, and once he saw her, he left. Father did not have any business to conduct at the DPSS office that day.
The case was then switched to another social worker, who reported that father called him on November 16, 2015, and yelled at him, using many expletives. Father complained about his former social worker, C.M., called her a “f---ing liar,” and said she “took [his] kid” and ruined his life. Father said he was going to “trash her f---ing truck,” and said “[C.M.] is f---ing dead.” The court reissued the TRO several times.
On January 21, 2016, another application for a TRO against father was filed, with the current social worker as the protected person. The social worker also requested that the court suspend father’s visitation and modify visitation orders for the paternal great-grandparents. The social worker suspected that the paternal great-grandparents were allowing unauthorized contact between father and the child. Moreover, on January 20, 2016, father called the DPSS office to talk to the current social worker. He repeatedly shouted abusive language, and the social worker warned him that the call would be ended if he continued to do so. He did not relent, so the call was ended. Father called the DPSS office again and told the receptionist he was going to kill the social worker for ending the call. He demanded to speak with him again, but when he was told he could not talk to him, father became angrier and said he was coming to the building with a gun to go after the social worker. DPSS called the police, but father did not come to the office. The court granted the TRO and suspended father’s visitation with the child.
In a report filed on March 7, 2016, the social worker stated that father’s whereabouts were unknown, despite a due diligence search being completed. Father had not contacted the social worker during the reporting period or given any contact information to DPSS.
On May 10, 2016, father filed another section 388 petition to request that the court reinstate his visitation (the second petition). As to changed circumstances, he alleged that the child had never seen any violence or aggression as alleged by DPSS, and there had been no evidence submitted that the child’s visits would be detrimental to her. Father alleged that reinstating his visitation was in the child’s best interest because it “would be a positive thing . . . because [the child] still has a father” who had cared for her and visited her in the past.
The court held a hearing on May 16, 2016. Father asked the court why his visitation was suspended, and the court responded that it was because of his threats to the social worker, noncooperation with DPSS, his visits with the child when she was in the care of the paternal great grandparents against DPSS’s directives, and his poor attitude. The court added that DPSS did not think it could safely supervise visits, since it was afraid for the safety of the social workers. Father argued that there was no proof of his conduct, but only accusations from the social worker. The court found insufficient evidence of a change of circumstance and best interest, so it denied the second petition.
The social worker filed a continued section 366.26 hearing report on September 7, 2016, and reported that a prospective adoptive home had been identified for the child. The current care provider wanted to move forward with adopting the child. The child had lived in this prospective adoptive family’s medically fragile foster home since June 18, 2014. The child continued to receive specialized medical care and extensive outpatient care and therapy, due to her condition. The child was thriving with the consistent care and nurturing home that the prospective adoptive family was providing for her.
At a hearing on November 8, 2016, father’s counsel requested that the court allow father a visit with the child. The court directed DPSS to assess whether that would be appropriate.
The court ultimately held a contested combined section 366.26 and section 388 hearing on December 21, 2016. The court heard testimony from father and argument from his counsel on the section 388 petition. Counsel asserted that father had recently been allowed three visits with the child, at the courthouse, and they had all gone well. The court noted that it had reviewed the entire file, and it had no doubt father loved the child. The court observed that the child had been in this dependency case for over 30 months, and she had been in the same prospective adoptive home for two and one-half years. The court stated that father was in the process of trying to get his life together, but it could not find a change of circumstances. It also could not find granting more services to be in the child’s best interest. The child was in the only home she knew, and she was well cared for. Thus, the court denied the section 388 petition.
The court proceeded to hear arguments regarding section 366.26. Father’s counsel argued the court should consider that, prior to the suspension of his visits, father maintained consistent visitation, and he was by the child’s side through her surgeries and procedures. He then argued that, even though father’s visits were suspended for about 11 months, he still had a psychological and emotional bond with the child. Moreover, when the court allowed visits to resume the last few months, the child knew who her father was, and she was attached to him. Counsel contended that the gap in visitation “should have no baring [sic] on this case,” since a bond remained.
The court noted that it had read and considered all the reports submitted, as well as the adoption assessment. The court found it likely that the child would be adopted, and that none of the exceptions to the termination of parental rights applied. It then found adoption to be in the child’s best interest and terminated the parental rights of mother and father.
ANALYSIS
The Court Properly Terminated Father’s Parental Rights
Father argues that the court’s order suspending his visitation was unsupported, since there was insufficient evidence to justify an implied finding that contact between him and the child was detrimental. He further contends the suspension of visits made it impossible for him to have a defense to the termination of parental rights, since visitation was critical to the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). He claims that the court’s erroneous suspension order resulted in the termination of parental rights; thus, the order terminating his parental rights should be reversed. We disagree.
We note respondent’s initial argument that this court lacks jurisdiction to consider the issue raised on appeal, since father did not file a notice of appeal regarding the suspension of his visits. However, respondent concedes that father appealed from the section 366.26 order and the section 388 order. Father’s notice of appeal lists numerous orders, including the order denying his request under section 388 to reinstate his visits since there was no finding the visits were detrimental to the child. Because father is ultimately asking this court to reverse the order terminating parental rights, in light of the lower court’s allegedly erroneous suspension of visitation, we will consider the merits of his appeal.
Father’s reunification services were terminated at the 12-month review hearing on May 20, 2015. At that time, the court also set a section 366.26 hearing to determine a permanent plan for the child. Section 366.21, subdivision (h), provides that “[i]n any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child.” The court accordingly ordered supervised visitation to be a minimum of two times a month, noting that DPSS had the ability to offer more if appropriate.
The court did not suspend father’s visitation until January 21, 2016, in response to the social worker’s request for a restraining order against father. Although the court apparently did not make an explicit detriment finding, there was an implied finding. The court granted the restraining order due to father’s dangerous and aggressive behavior. He was verbally abusive to the social workers, repeatedly shouting and cursing at them, and calling them names. He threatened to kill a social worker and one of the social worker’s children. He threatened to “trash” one of the social worker’s cars. He was also hostile toward DPSS visitation monitors. Moreover, father was hostile toward hospital staff and had to be escorted out of the child’s hospital room by hospital security. Given father’s volatile anger and hostile conduct, the court could easily find that it would be detrimental for the child to continue visiting with him.
Furthermore, the crux of father’s complaint appears to be that the suspension of his visits made it impossible for him to have a defense to the termination of parental rights, under the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)), and his parental rights were terminated, as a result. We disagree. The record shows that he was eventually allowed to have visits with the child at the courthouse, prior to the section 366.26 hearing. At the 366.26 hearing, father asserted the beneficial parental relationship exception, arguing that he maintained a bond with the child, as evidenced by his recent visits, despite the suspension in visits. The court did not find that the exception applied. Father’s argument on appeal assumes the court did not find the exception applicable because he failed to meet the requirement of regular visitation, due to the suspension order. However, he was also required to show that the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) He plainly failed to do so. The phrase “‘benefit from continuing the . . . relationship’ ” refers to a parent/child relationship that “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 other words, the court balances 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) There was no evidence that father’s interactions with the child demonstrated that his relationship with her promoted her well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Ibid.) Although the record may have reflected that his visits were appropriate, father did not and has not proffered any evidence to support a finding that the child had a “substantial, positive emotional attachment [with him] such that the child would be greatly harmed” if the relationship was severed. (Ibid.)
Furthermore, contrary to father’s claim, the visitation suspension order did not result in his parental rights being terminated. His visitation was suspended after his reunification services were terminated and a section 366.26 hearing was set. In other words, by the time of the suspension, the social worker was already recommending that parental rights be terminated and adoption be implemented as the permanent plan. Ultimately, his parental rights were terminated because the evidence showed he had more than 12 months of services, yet failed to demonstrate any benefit from them. The court found that his progress was unsatisfactory, and that the return of the child to his custody would create a substantial risk of detriment to the child’s safety, protection, and physical and emotional well-being. Those findings are undisputed.
We conclude the court properly terminated father’s parental rights, and he has given us no reason to reverse the order. We note mother’s contention that, should the order terminating father’s parental rights be reversed, the judgment terminating her parental rights should be reversed as well. We need not address this claim, in light of our determination that the court properly terminated father’s parental rights.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:


RAMIREZ
P. J.

FIELDS
J.