Persons Coming Under the Juvenile Court Law. San Diego Cnty. Health v. C.D. (In re B.D.)

• Decision Date: 27 July 2021
• Docket Number: D078014
• Citation: 66 Cal.App.5th 1218,281 Cal.Rptr.3d 726
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE B.D., et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. C.D. et al., Defendants and Appellants.

66 Cal.App.5th 1218

281 Cal.Rptr.3d 726

IN RE B.D., et al., Persons Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.C.D. et al., Defendants and Appellants.

D078014

Court of Appeal, Fourth District, Division 1, California.

Filed July 27, 2021

Jill Suzanne Smith, under appointment by the Court of Appeal, for Defendant and Appellant, C.D.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, R.Q.

Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

BENKE, Acting P.J. C.D. (Father) and R.Q. (Mother) appeal from the juvenile court's orders terminating parental rights to their son, B.D. (born 2012) and daughter L.D. (born 2015, together the children). ( Welf. & Inst. Code, § 366.26.)¹ The parents contend the juvenile court erred in finding that the beneficial parental relationship exception to adoption did not apply because the evidence demonstrated that terminating parental rights would be detrimental to the children's well-being. They assert that a legal guardianship was the only appropriate permanent plan for the children. ( § 366.26, subd. (c)(1)(B)(i).)

On May 6, 2021, we filed an opinion affirming the orders. Before this opinion became final, Mother filed a petition for rehearing arguing that the recent Supreme Court decision in In re Caden C. (2021) 11 Cal.5th 614, 278 Cal.Rptr.3d 872, 486 P.3d 1096 ( Caden C. ) indicates that the juvenile court erred in terminating parental rights. We granted rehearing and gave all parties the opportunity to file supplemental briefing on the petition for rehearing and the impact of Caden C. on this appeal. We vacate our initial opinion. Having considered the supplemental briefs filed by the parties we reverse the orders terminating parental rights.

When concluding that the parents did not meet their burden of showing that they had a substantial, positive, emotional attachment with their children, the juvenile court and social worker considered the parents' substance abuse without addressing whether this continued substance abuse had any negative effect on the parent-child relationship. We are also uncertain whether the juvenile court considered other factors proscribed by the Supreme Court in determining the beneficial nature of the parent-child relationship. We therefore must reverse the orders terminating parental rights and remand for the juvenile court to reexamine the record based on a proper application of the governing law.

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego County Health and Human Services Agency (Agency) became involved with this family in August 2018 after sheriff's deputies responded to a domestic violence incident where Mother pepper sprayed Father and then Father chased Mother down the street. The following month, the Agency received another report that Mother barricaded herself in a bathroom during an argument and that Father broke the door down. B.D. observed the parents hitting and yelling at each other and stated that Mother was "very hurt" and that he and his sister were scared. The children also observed a 2017 incident where Mother sustained bruising around her neck, scratches, and lost her voice for two weeks after Father strangled her.

When the Agency investigated, the parents appeared to be on some type of stimulant. The Agency found marijuana and drug paraphernalia in the parents' bedroom and within the children's reach. The Agency also found two bags of empty cans or bottles of alcohol in the bedroom. The parents reported methamphetamine use and Father expressed concern that Mother had an alcohol problem.

In August and September 2018, the Agency requested that Mother drug test seven times, but she only tested twice. She tested positive for methamphetamine, alcohol, and tetrahydrocannabinol (THC) for the first test, and positive for alcohol and THC for the second test. The Agency requested six drug tests for Father over a three month period. He tested twice with both tests positive for THC.

In late October 2018, the Agency filed petitions on behalf of the children under section 300, subdivision (b)(1) alleging that a substantial risk existed that the children would suffer serious physical harm or illness based on the parents' physically violent relationship and use of dangerous drugs.² The protective custody warrant affidavits indicated that the children "have expressed feeling scared and crying while witnessing the domestic altercations which is putting them at a high risk of suffering emotionally with depression or anxiety in their future. The children have been observed to show that they are being neglected with their lack of cleanliness, rotting teeth, unchanged diaper at the age of 3.5, and expressing hunger."

At the detention hearing, the juvenile court made a prima facie finding on both petitions. The juvenile court detained the children and ordered supervised visitation for the parents. At the contested adjudication and disposition hearing in January 2019, the juvenile court sustained the petitions, declared the children dependents, placed them with the paternal grandmother D.B. (the caretaker), and ordered reunification services.

The social worker submitted drug test referrals for Mother in February, March, April and May 2019, but she failed to show to every appointment. During a July 26, 2019 office visit, Mother claimed "her clean date was ‘sometime in [2018].’ " Mother expressed confidence that she would test "clean" that day but did not respond when asked why she had not drug tested in the last six months. Although Mother appeared for an intake appointment for substance abuse treatment, she never returned to the program.

Father admitted that he started using marijuana at age 13, currently used marijuana once or twice a day, and "occasionally" drank alcohol. He denied current methamphetamine use but admitted "having a problem" with the drug in the past. Mother stated, however, that Father used methamphetamine and took "baking soda to pass his tests." The social worker submitted drug test referrals for Father in February, March, April and May 2019, but he failed to show to every appointment. When the social worker informed Father that he only needed to drug test twice to satisfy his case plan objective, Father denied receiving the social worker's calls and text messages regarding testing.

On August 20, 2019, the social worker left Father a voice message advising him that he needed to submit to a random drug test, but Father did not appear for this drug test, which the Agency considered to be a positive test. Two days later, the social worker advised the parents that they needed to drug test that day, which they agreed to do. However, one hour later, the social worker received a voicemail from Mother stating that she and Father would not drug test because it conflicted with their services.

On August 28, 2019, the juvenile court terminated reunification services and set a section 366.26 hearing, which it later rescheduled three times. At the contested section 366.26 hearing in September 2020, the juvenile court found that the parents consistently visited the children but determined that they did not fulfill a parental role. The court terminated the parents' parental rights, selected adoption as the children's permanent plan, and designated their current caregiver as the prospective adoptive parent. The parents timely appealed.

DISCUSSION

A. General Legal Principles

"At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." ( In re S.B. (2008) 164 Cal.App.4th 289, 296-297, 79 Cal.Rptr.3d 449 ( S.B. ).) "Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." ( S.B., supra , at p. 297, 79 Cal.Rptr.3d 449.)

One of the exceptions to the preference for adoption is the beneficial parent-child relationship exception. ( § 366.26, subd. (c)(1)(B)(i).) For this exception to apply, the parent must show by a preponderance of the evidence: (1) regular visitation and contact with the child; (2) the child has a substantial, positive, emotional attachment to the parent; and (3) terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. ( Caden C., supra , 11 Cal.5th at p. 636, 278 Cal.Rptr.3d 872, 486 P.3d 1096.) The existence of the parent-child relationship exception is determined by taking into consideration many variables which affect a parent-child bond including, "[t]he age of the child, the portion of the child's life spent in the parent's custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child's particular needs." ( In re Autumn H. (1994) 27 Cal.App.4th 567, 576, 32 Cal.Rptr.2d 535 ( Autumn H. ).) " ‘The relationship that gives rise to this exception to the statutory preference for adoption "characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship." ’ " ( In re G.B. (2014) 227 Cal.App.4th 1147, 1165, 174 Cal.Rptr.3d 405 ( G.B. ).) When the benefits of a stable, adoptive, permanent home outweigh the harm the child would experience from the loss of a continued parent-child relationship, the court should order adoption. ( Caden C., supra , 11 Cal.5th at p. 634, 278 Cal.Rptr.3d 872, 486 P.3d 1096.) The statutory reasons for departing from " ‘the norm’ " of adoption apply only in " ‘exceptional circumstances.’ " ( Id....