In re Albert V.

Filed 11/23/05 In re Albert V. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re ALBERT V., a Person Coming Under the Juvenile Court Law.	B181056 (Los Angeles County Super. Ct. No. CK48588)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALBERTO V., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Phillip L. Soto, Judge. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

____________________

Appellant Alberto V.[1] (father) appeals from a juvenile court order terminating his parental rights to his son, eight-year-old Albert V. (Albert), pursuant to Welfare and Institutions Code section 366.26.[2] Father contends that the juvenile court erred when it found that father did not demonstrate that the parental benefit exception (§ 366.26, subd. (c)(1)(A)) to terminating parental rights did not apply.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Removal and Detention

Albert and his younger brother, Jacob K. (Jacob) (collectively, the minors) were removed from their mother’s care on March 27, 2002, by the Los Angeles County Department of Children and Family Services (DCFS). In a section 300 petition filed on April 2, 2002, DCFS alleged: The minors’ mother, Shanna K. (mother), physically abused Albert, which subjected him to unreasonable pain and suffering and exposed Jacob to a risk of similar abuse. The physical and emotional health and safety of the minors also were endangered due to the pattern of violence between mother and father. Additionally, due to a history of substance abuse, mother was incapable of providing the minors with regular care.

When notified of Albert’s removal, father told the social worker that the domestic violence incident occurred prior to Albert’s birth and that he had completed a domestic violence program. He advised the social worker that he wanted custody of his son, Albert. If Albert could not be placed with him, he preferred placement with his mother, Esther E. (Esther).

At the detention hearing, Albert advised the juvenile court that he wanted to live with father, but did not want to be separated from Jacob, who is not father’s child. Ultimately, Albert was detained and both he and Jacob were placed in the care of Peter R. (Peter) and Antonio G. (Tony) (collectively, the foster parents). DCFS was ordered to evaluate the home of Gail K. (Gail), the minors’ maternal grandmother and release them to her, if appropriate. Unmonitored day visits were ordered for father with discretion to the social worker to allow overnight visits. Reunification services were ordered as well.

The matter was continued to May 2002, for a pretrial resolution conference.

Pretrial Resolution Conference

In a report prepared for the May 2002 hearing, the social worker described five-year-old Albert as very bonded to Jacob. Both Albert and Jacob were doing well with their foster parents. The foster parents told the social worker that they had a good relationship with the minors’ family and allowed all family members to visit the children in their home. In their opinion, both the maternal and paternal families truly cared for the minors.

The social worker also reported that father had “good” visits with Albert, but he had missed a few visits. At that time, he was living with his girlfriend and their baby in her mother’s apartment.

In a subsequent interim report, the social worker reported that father wanted to know why Albert could not live with his family. Although not all of the paternal family members had complied with the livescan requirements, the social worker was concerned because Albert spoke very little Spanish, which was the family’s primary language. According to one of the foster parents, Albert needed an interpreter when he was with father’s family.

Jurisdiction

On May 31, 2002, DCFS filed a first amended petition based upon the history of physical and substance abuse by mother and a history of domestic violence by father against mother. That same day, the juvenile court sustained the first amended petition as filed under section 300, subdivisions (b) and (j). The minors were ordered to remain with their foster parents pending evaluation of father’s home. The disposition hearing was continued to June 20, 2002.

Disposition Report and Hearing

In an interim review report for the June 20, 2002, hearing, the foster parents reported to the social worker that during one of father’s day visits with Albert on June 16, 2002, he took Albert to visit a woman, not the girlfriend with whom he lived. When Albert told the girlfriend that he and father had visited this woman, she became angry at father, who in turn was angry with Albert and “cursed him on the telephone.” Albert was very upset about father’s accusations. Based upon that information, the social worker requested monitored visits for father.

On June 20, 2002, the juvenile court completed the disposition hearing only for mother. The minors were placed in Gail’s home. Father’s visits were restricted to monitored, with discretion to liberalize. Because he contested DCFS’s recommendations, father’s disposition hearing was set for July 16, 2002.

On July 2, 2002, Gail called the social worker and said that she could not take care of Albert and Jacob, and she requested their removal from her home. Albert had stated that he wanted to go back to his foster parents. In fact, Gail had taken the minors to visit their foster parents and, during that visit, she realized that the minors were bonded to them, not to her. Albert also told the social worker that he wanted to go back to his foster parents’ home, where he had his own room. DCFS returned them to their foster parents.

Father’s Disposition Hearing

In a report for the July 16, 2002, disposition hearing, the social worker reported that she had received livescans for the paternal grandparents and the paternal uncle, Josue V. (Josue), and that they did not contain criminal convictions or history of child abuse. DCFS recommended that Albert have bi-monthly weekend and overnight visits with both his maternal and paternal grandparents and that Josue monitor father’s visits at the paternal grandparents’ home.

At the hearing, father submitted on the recommendations in the social worker’s report. The juvenile court removed Albert from father’s custody with a “general [and] suitable placement” order. Father was ordered to participate in reunification services, including a 20-week parenting program and a domestic violence program. If he provided verification that he had completed a domestic violence program through the criminal court, then that would satisfy the juvenile court’s order. He was permitted to have monitored visits with Albert, supervised by Josue.

The matter was continued to November 25, 2002, for a six-month review pursuant to section 366.21, subdivision (e).

Six-month Review

According to the social worker, the minors were thriving in their foster parents’ home, and the foster parents had opened their home to both the maternal and paternal families for visitation. In fact, the foster parents even invited family members to join them in the foster home for family holidays.

The foster parents complained to the social worker that Albert slept on the floor when he visited his family at the paternal grandparents’ home. Father explained that Albert liked to sleep with him, who slept there during visits. The social worker visited the paternal grandparents’ home and confirmed that there was a room with a bed for Albert.

It also was reported that Josue was not always monitoring father’s visits. Nevertheless, the visits had gone well, except for occasional cancellations.

At the six-month review hearing, the juvenile court found that there was a substantial probability that the minors would be returned to their parents within six months. The parents were ordered to complete drug testing and parent education. Father also was ordered to complete a domestic violence program or provide the social worker with proof of a prior completion.

The matter was continued to May 22, 2003, for a 12-month review pursuant to section 366.21, subdivision (f).

12-month Review

On April 3, 2003, DCFS reported that an adoption assessment had been completed for the minors and it had been recommended that adoption be the permanent plan. The foster parents already had an approved adoption home study.

In the status report for the 12-month review hearing, the social worker reported that the foster parents had recently moved into a very nice home in a good neighborhood. Peter reported that Albert had been having problems at school and had started therapy again. Albert’s teacher stated that he was aggressive, which the social worker believed might have been the result of being exposed to conflicts between mother, father, and the foster parents and because father and mother had inappropriately spoken to Albert about the case.

Father continued to have unresolved traffic tickets; as a result, DCFS had never been able to check his criminal record. Father also had failed to keep appointments with programs and there was no evidence that he had completed parenting classes or participated in domestic violence counseling. Yet, he had received monthly bus passes so that he could attend programs. With respect to visitation, the foster parents reported that father had driven Albert in a badly damaged car with no seat belts and no car insurance. He had cancelled one weekend visit; on another weekend visit, he had taken Albert to Esther’s home and had not seen Albert the rest of the weekend. Albert had returned to therapy as a result of the hostility between family members, his confusion over separation from his family, and father and mother’s inconsistency regarding visits.

DCFS recommended termination of reunification services for both mother and father. Mother and father contested DCFS’s recommendations, and a contested hearing was set for July 7, 2003.

In a supplemental report, the social worker noted that although father had not fully complied with orders to complete a drug program, he continued to have clean drug tests. He completed his parenting education program on March 30, 2003. DCFS recommended that the minors remain with their foster parents, that reunification services be terminated, and that a section 366.26 hearing be set to address the plan of adoption for the minors.

The foster parents submitted a letter detailing their complaints about both families, including comprehensive computer generated visitation reports.

Contested Hearing

At the contested hearing, father testified that his work kept him from completing a drug program. Following the juvenile court’s review of the original disposition orders, it corrected a prior minute order and clarified that father only was ordered to complete domestic violence counseling and parent education. Nevertheless, father testified that he was willing to complete a drug program within six months.

Father also testified that he had completed a parenting class and had visited Albert every other week and desired more visitation. Father’s girlfriend was willing to have Albert live with them. However, father had not yet participated in individual counseling or cleared up his driving record.

DCFS was ordered to continue efforts to investigate father’s home for placement of the minors.[3] In that regard, the juvenile court ordered a California Law Enforcement Telecommunication System (CLETS) inquiry into father’s criminal history. It also ordered a letter report from Albert’s therapist and an investigation of the bond between Albert and Jacob.

The juvenile court noted that father never provided proof that he had participated in domestic violence counseling, which concerned the minors’ attorney. Moreover, most of Albert’s visits with father were actually with the paternal relatives. Nevertheless, the juvenile court found father in partial compliance with his case plan, continued his reunification services, and increased his visits to include half-day visits once a week for Albert and Jacob, with discretion for overnight visits in father’s home. It also required father to provide proof of attendance in domestic violence counseling or enroll immediately in such a program.

Progress Report

On August 13, 2003, the foster parents sent a letter to the social worker again enumerating their complaints about father, mother, and Gail, with an attached detailed computer generated visitation chart.

On August 20, 2003, the social worker reported that father’s family was reluctant to take Jacob, because there was insufficient room in their home. Following the social worker’s visit, father’s girlfriend told her that she and father had decided to move out of her mother’s home and into their own apartment so that the minors could have their own room. But, father still did not have a valid driver’s license and had only visited with Albert twice in the previous six weeks.

The social worker opined that Albert and Jacob were very bonded to each other and should not be separated. Albert’s therapist believed that Albert should not be released to father because his visits were sporadic and inconsistent. Therefore, the social worker recommended that Albert remain with his foster parents until father improved his visitation to include overnight and weekend visits.

Father was able to provide the social worker with verification that he had completed his domestic violence program on July 14, 1997. DCFS continued to recommend placement with the foster parents until the maternal grandfather’s home could be cleared or until father showed consistency in his visits and obtained a residence where the minors would not have to sleep on the couch.

At the hearing, the juvenile court gave DCFS discretion for Albert to visit father up to and including overnights and weekends, but he was not allowed to drive him without a valid driver’s license. DCFS was ordered to assess the other adults in father’s home, obtain a letter from Albert’s therapist about possible placement of the minors with father, and to inquire whether father would consider a more permanent placement plan for Jacob in his home, other than long-term foster care.

18-month Review

In her report for the September 23, 2003, hearing, the social worker reported that father still had not completed a CLETS check. Father had had two overnight visits with Albert, but the foster parents alleged that father had transported him in his car without a valid driver’s license, insurance, or a seatbelt. According to the foster parents, Albert’s visits with father were “okay,” but father’s girlfriend did not like him or pay attention to him. Father had failed to show up on a Friday night for one visit, calling at the last minute to cancel because of a car accident and rescheduling for the next day. The foster parents believed that Albert only wanted to live with father out of loyalty. While Peter believed that Albert had a bond with father, he was not certain whether it was a positive bond.

Father and his girlfriend told the social worker that they were not willing to adopt or be guardians of Jacob, although they would consider long-term foster care.

At the September 23, 2003, hearing, the juvenile court ordered father not to drive Albert without a valid driver’s license and car insurance. It also instructed DCFS to order a CLETS report as to father’s criminal history. In making these rulings, the juvenile court noted that it had given father “every opportunity possible to visit and have constructive visits, to complete programs and learn and have a meaningful lesson from these programs.” Ultimately, the juvenile court continued the section 366.26 hearing to November 5, 2003, for proper notice and contest.

Father’s Visits Return to Monitored

On October 6, 2003, Gail reported to DCFS that Albert had called her because father had left him alone. The foster parents also reported that father had left Albert alone with an eight-year old child. The social worker spoke to Albert, who confirmed that father had left him alone with another small child. Albert was angry that father did not spend time with him when he visited. Albert also complained that father was supposed to take him to his karate class, but had not done so. Meanwhile, father continued to drive without a driver’s license, car insurance, or seatbelts, and mother reported that father recently had gone to jail for drinking and driving and there was a warrant out for his arrest. Accordingly, on October 22, 2003, DCFS filed an ex parte application requesting that his visits be returned to monitored. That application was granted.

November 2003 Reports and Hearing

A status review report for the continued 18-month review hearing included father’s criminal history. It confirmed his criminal conviction for spousal abuse with probation in 1995, a conviction for robbery and assault against a person in 1998, and a warrant for disobeying traffic signs. The report reiterated the foster parents’ complaints about father’s visits. The social worker believed that it would be detrimental to return Albert to father as he was irresponsible and had not provided any emotional support. In fact, according to Albert’s therapist, Albert considered his foster parents to be his parents but he felt disloyal if he did not say that he wanted to live with father. The therapist believed that the foster parents were providing the minors with a good home and that Albert and Jacob should not be separated.

Meanwhile, father had not called to arrange any visits since his visits had reverted to monitored.

The foster parents were committed to adopting Albert.

DCFS recommended termination of father’s reunification services and setting a section 366.26 hearing.

At the November 5, 2003, hearing, father testified that his visits with Albert were thwarted by the foster parents and the social worker.

The juvenile court told father that he had failed to take advantage of the opportunities that it had given him. Instead of visits improving, they had gotten worse because father had been irresponsible. Father continued to drive without a license and had continued to disobey the law, putting Albert at risk. Albert related to Jacob and his foster parents, but not to father. If father had learned anything in his parenting classes, he had not applied it to his relationship with Albert. Albert was thriving in his foster parents’ care, but not with father.

The juvenile court also found that DCFS had made reasonable efforts to reunify father with Albert and that it would be detrimental to Albert to be placed with father. It terminated reunification services and set a section 366.26 hearing. Father’s monitored visitation order remained in effect with a further condition that the foster parents were not to monitor those visits.

Termination of Parental Rights

In the report for the section 366.26 hearing, the social worker characterized father’s visits as “regular,” even though in 2003 he had visited twice in June, had no visits in July, six visits in August, four visits in September, only one visit in October, and only one visit in November. After November, father had only visited twice in three months, both times within a week of each other.

A court-ordered psychological evaluation on the relationship between Albert, his foster parents, mother, and Gail was completed by Dr. Alfredo E. Crespo on April 12, 2004. Although father was not included in this evaluation, Peter told Dr. Crespo that father was “devious [and a] gangster.” While Dr. Crespo believed that the minors should remain with their foster parents, he felt that it was premature for the foster parents to adopt the minors. He envisioned a plan where the foster parents would be the legal guardians and Gail and the foster parents would participate in conjoint counseling to increase their ability to coparent.

Following receipt of this psychological evaluation, the juvenile court ordered DCFS to address all potential plans contained in that evaluation. Furthermore, Dr. Crespo was ordered to interview Albert’s therapist and augment his evaluation with information from that therapist.

On July 26, 2004, the foster parents reported that father had missed 23 of 31 opportunities to visit Albert since reunification services were terminated, including the last 12 visits in a row. He also rarely called Albert on the telephone and had made inappropriate comments to the child.

In an August 9, 2004, report, the social worker reported that father had had two visits in February, three visits in March, and one visit in April 2004 at the DCFS office. For those visits, father had brought board games, which he and Albert played. They appeared to enjoy their time together; Albert and father laughed a lot. The extended paternal family accompanied father on two of those visits. The social worker reported that bonds existed between the children and their parents as well as extended paternal and maternal relatives.

Meanwhile, both Albert and Jacob continued to thrive in their foster parents’ home. Albert was articulate and eager to learn new things. He was excelling at school.

In a September 13, 2004, report, the social worker reported that Albert continued to live with his foster parents without any problems. The quality of Albert’s visits with father had always been good; he always asked for father when he was not at a regular visit. Since February 2004, the extended paternal family participated in several office visits. The social worker observed that these visits were always good and Albert appeared happy to see father’s family. Although the social worker considered adoption to be the appropriate plan for Albert, she was concerned about severing familial ties because he appeared to have a close bond with his parents and other extended family members. She wondered whether an “open adoption” would be appropriate.

Father was not present at the September 13, 2004, hearing because he had entered a residential drug treatment program and was not permitted to leave for the first 30 days. The matter was set for contest on March 14, 2005.

Father left his voluntary drug program on October 4, 2004, to enroll in a program closer to home. He had remained clean and sober for almost two months and was living in his parents’ home. Between February and September 2004, he visited Albert 12 times.

During this interval, the social worker remained concerned about the detriment to severing the minors’ familial ties. In fact, Albert’s paternal aunt told the social worker that her family would like the minors to live with them.

The social worker reported that Albert told her on January 4, 2005, that he wanted to be adopted by his foster parents. Evidence regarding the number of father’s visits was conflicting. According to the social worker, father had visited Albert on October 28 and November 30, 2004, and in January 2005. The paternal uncle and paternal grandmother visited on December 28, 2004. The foster parents reported that father had seen Albert only twice in the nine months prior to January 2005. According to the social worker’s records, father had 12 visits with Albert between February and September 2004, had additional visits on October 28 and November 30, 2004, and a visit on January 4, 2005.

The juvenile court held the section 366.26 hearing on February 8, 2005. DCFS’s report and Dr. Crespo’s evaluations were received into evidence.

The social worker testified that Albert told her that he wanted to be adopted by his foster parents. She also testified that during one visit she monitored, father had acted appropriately and Albert enjoyed the visit. However, father’s visits had not been consistent. When the visits were over, Albert was happy to go back to his regular routine with his foster parents. Albert never cried or asked for father. The social worker was unaware of any actions father had taken that showed that he fulfilled the role of a parent in Albert’s life. She stated that Albert was adoptable even if the foster parents were unavailable as adoptive parents.

Father testified that he had visited Albert twice a week[4] during January and February 2005. Albert called him “dad” and he talked to Albert about school, but he would not talk to father about his foster parents. He had missed visits because of work. He felt that he had a “pretty close” relationship with Albert.

The juvenile court heard argument from all counsel. Albert’s attorney joined with DCFS’s counsel in asking that the juvenile court terminate parental rights. She did not believe that the visits had been regular, and Albert wanted to be adopted by his foster parents. There was a relationship between Albert and father, but it was not so beneficial as to outweigh the benefits of adoption.

Ultimately, the juvenile court found that the foster parents had done everything for Albert that parents were supposed to do. The juvenile court noted that Albert understood what adoption was and wanted to be adopted by his foster parents. For some reason, father had been incapable of showing up for scheduled visits or making telephone calls when expected. While Albert might recognize father as his “father,” that did not mean that father had actually fulfilled his role as a parent. Father had never managed to get any closer to reunifying with Albert, whether it was because he fell back into a drug habit or some other problem.

The juvenile court noted that it had gone to great lengths to give father a chance. It had tried without success to place Albert with relatives. The juvenile court could not find any benefit to preserving father’s rights that was significant enough to deny Albert the benefits of a permanent adoptive home. Ultimately, it found that father did not satisfy the terms of section 366.26, subdivision (c)(1)(A), and terminated father’s parental rights.

Father’s timely appeal followed.

DISCUSSION

I. Standard of Review

Although reviewing courts have traditionally applied a substantial evidence test to a juvenile court’s finding under section 366.26, subdivision (c)(1)(A), some courts have determined that abuse of discretion is the appropriate standard of review, but noted that the practical differences between the two standards are not significant. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [ it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’. . . .”’” (Ibid.)

II. Substantial Evidence Supports the Juvenile Court’s Determination that the Section 366.26, Subdivision (c)(1)(A) Exception Does Not Apply

In pertinent part, section 366.26 provides: “A finding . . . under section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights 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: [¶] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)

“When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.] . . . [¶] . . . A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Frequent and loving contact is not sufficient to establish the requisite benefit from continuing the relationship. The biological parent must have occupied a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

“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.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.)

Father’s arguments notwithstanding, the appellate record indicates that Albert did not gain any parental benefit by his contact with him. While Albert’s visits with father were good, they were spent playing games; there is nothing to suggest that father fulfilled the role of a true parent.

Moreover, father did not visit Albert regularly. He missed and cancelled visits; he visited only 12 times between February and September 2004 and only three more times through February 2005. Although he claimed that he missed visits because of his work schedule, those same work commitments did not stop father from entering a residential drug treatment program.

Finally, there is no evidence that Albert will be greatly harmed by father’s rights having been severed. Albert, who is very bonded to his younger brother Jacob, is thriving in the home of his foster parents. Although he recognizes father as his biological father, his presence only adds instability, confusion, and uncertainty to Albert’s life. His security comes from his foster parents, not father. As such, there is no indication that terminating father’s parental rights has harmed, or will harm, Albert.

DISPOSITION

The juvenile court order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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[1] There is some confusion regarding father’s name. While his opening brief identifies him as “Alberto,” various court documents, including the original Welfare and Institutions Code section 300 petition and his notice of appeal, identify him as “Antonio.”

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] As DCFS reminded the juvenile court, because Jacob was not father’s biological child, there might be complications if Jacob were to accompany Albert on an overnight visit to father’s home.

[4] Based upon later testimony, he may have meant “month.”