In re G.P.

Filed 6/19/14; pub. order 7/10/14 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re G.P. et al., Persons Coming Under the
Juvenile Court Law.
D064965
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J514402B-C)
Plaintiff and Respondent,

v.

Y.Z. et al.,

Defendants and Appellants.

APPEAL from a order of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

Andrea R. St. Julian, under appointment by the Court of Appeal for Defendant and

Appellant Y.Z.

Valerie N. Lankford, under appointment by the Court of Appeal for Defendant and

Appellant Jose P.
 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

Tilisha Martin, under appointment by the Court of Appeal, for Minors.

Y.Z. (Mother) appeals a juvenile court order terminating her parental rights to her

children, G.P. and A. P., and choosing adoption as the appropriate permanent plan under

Welfare and Institutions Code1 section 366.26. Mother contends the court's erroneous

finding that the children should be removed from their relative caregiver and placed in a

foster home under section 387 deprived her of the ability to raise an exception to the

adoption preference under section 366.26, subdivision (c)(1)(A). Mother also challenges

the sufficiency of the evidence to support the court's finding that the beneficial

relationship exception to the adoption preference is inapplicable.

Jose P., the presumed father of G.P. and A.P. (Father), joins Mother's arguments

and maintains his due process rights were violated when the court terminated his parental

rights without having made a detriment finding as to him.

We conclude the court's findings under section 387 as well as its determination

that the beneficial relationship exception did not apply are supported by substantial

evidence. We also find that Father invited the error he now appeals, and even if he did

not do so, the juvenile court's findings were sufficient to support termination of Father's

rights. Accordingly, we affirm.

1 Statutory references are to Welfare and Institutions Code unless otherwise
specified.
2
 FACTUAL AND PROCEDURAL HISTORY

On September 26, 2011, the San Diego County Health and Human Services

Agency (Agency) filed petitions on behalf of G.P. and A.P., ages five and two

respectively. Filed under section 300, subdivision (b), the petitions alleged Mother's

excessive use of methamphetamine placed the brothers at a substantial risk of suffering

serious physical harm because her drug abuse and history of substance abuse rendered

Mother unable to provide the children with regular care. The petitions also alleged

Mother admitted to on-going weekly drug use and she tested positive for

methamphetamine on September 15.

In the September 26, 2011 detention report, social worker James Marcuzzo

reported this was not G.P.'s first dependency experience. He was taken into protective

custody in May 2008 when his parents were arrested, both for possession of dangerous

drugs and probation violations. Drugs and drug paraphernalia were found in the family

home accessible to the child. Mother ultimately reunified with G.P. after successfully

completing her case plan. However, Father remained in prison. Mother also had a prior

dependency case with her oldest child, Angelica M., in 2002. The case began with

family maintenance while Mother and Angelica lived in the KIVA2 substance abuse

2 KIVA is a residential substance abuse treatment program for substance abusing
women and their children. Services include assessment, educational workshops in topics
such as life skills, vocational training, health, and relapse prevention as well as treatment
planning, individual and group counseling, and parenting instruction. KIVA is part of the
McAlister Institute of Treatment and Education (MITE).
3
program. However, Mother was eventually arrested in March 2004, failed to reunify with

Angelica, and Angelica's father was granted sole physical and legal custody of her.

According to Marcuzzo, on September 15, 2011, the Agency became concerned

Mother may have been producing methamphetamine in her home. Chula Vista police

investigated the home 11 times during the year, the majority of which were for suspected

drug use on the premises. During an interview Mother claimed, however, the maternal

grandmother and the children had made false allegations against her because of her

history of drug use. She also disclosed she had video cameras set up outside her home

because of her fear of retaliation, the result of prior involvement with criminal activity

and the "Mexican Mafia."

Marcuzzo reported when he interviewed Mother she presented as a person who

was drug free. However, though she claimed she had not been using illegal substances,

both Mother and her boyfriend tested positive for methamphetamine with drug levels

consistent with chronic binge use. Mother then acknowledged she had been using drugs

three times a week during the previous six months, generally just prior to the children

returning home from school.

Marcuzzo reported he also interviewed G.P. on September 15 at the Palomar

Elementary School. G.P. reported he lived with his mother, brother, and "[P]apa Mike."

He also reported "Grandpa Rick" visited regularly, but he did not like "Grandpa Rick"

because he made him smoke a cigarette. G.P. described the cigarette as red and white

and "as long as a pen." The child also reported all the adults smoked "small cigarettes

and the big cigarette" that was hard, yellow and purple, and made out of a bottle.

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Nevertheless, Marcuzzo recommended the children remain in Mother's care while she

engaged in family maintenance services.

Mother appeared at the detention hearing held September 27, 2011, and filed

parentage inquiry questionnaires for both G.P. and A.P. in which she identified Father as

the boys' father. The court did not follow the Agency's placement recommendation, but,

instead, ordered the children detained at the Polinsky Children's Center or in an approved

foster home.

In the October 19, 2011 jurisdiction and disposition report, social worker Loretta

De Cunzo reported the Agency had placed G.P. and A.P. with their maternal aunt

Natalie Z. and it appeared they were appropriately cared for. De Cunzo also reported

Mother disclosed Father was incarcerated in a federal prison in Indiana until May 2019

on drug charges involving a Mexican drug cartel. However, De Cunzo was unable to

verify Father's whereabouts through the federal and state prison locators.

De Cunzo had no doubt Mother loved her children yet her continued drug use

placed G.P. and A.P. at serious risk of harm. Therefore, De Cunzo recommended the

court continue the children in out-of-home care and order Mother to participate in

reunification services. De Cunzo recommended Mother participate in a case plan

comprised of general counseling, a psychological evaluation, parenting education, and

substance abuse services, including an outpatient substance abuse program, attendance at

a minimum of two 12-step meetings weekly, and on demand drug testing.

The court held the jurisdiction and disposition hearing on October 19, 2011, and

found the petition allegations true and also found the Agency had made reasonable efforts

5
to locate Father and notify him of the proceedings, all findings made by clear and

convincing evidence. The court then ordered: (1) the Agency to continue its search

efforts to locate Father, (2) G.P. and A.P.'s placement with Natalie continued, and (3)

Mother to participate in the dependency drug court in addition to her current services.

In the six-month status review report dated April 17, 2012, De Cunzo reported that

Father's whereabouts remained unknown and G.P. and A.P.'s placement with Natalie

continued to be appropriate. In the meantime, Mother entered the South Bay Women's

Recovery Center in October 2011 where she completed seven of 14 parenting classes and

attended drug treatment three times weekly. However, during the reporting period

Mother missed several treatments and failed to drug test four times. She did, however,

drug test on April 9, 2012, with negative results.

On February 9, 2012, Mother completed a psychological evaluation with

Christopher Carstens, Ph.D. Carstens diagnosed Mother as being amphetamine or

amphetamine-like dependent as well as having parent-child relationship problems.

Though Carstens acknowledged that people do sometimes recover completely from

methamphetamine abuse, he expressed concern that, because of Mother's comments, she

was not committed to long-term sobriety or long-term avoidance of people who lead her

to substance abuse. Carstens opined that could change over the ensuing six months.

The court held the six-month review hearing on April 17, 2012, found Mother had

made some progress with the provisions of her case plan, and ordered the Agency to

provide her with six additional months of services. The court also continued the

children's placement with Natalie.

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 In the October 16, 2012 status review report, De Cunzo reported G.P. and A.P.

continued to live with Natalie and appeared comfortable and well cared for. In the

interim, Mother continued to attend the South Bay Women's Recovery program once a

week and remained employed by a South Bay insurance company. Additionally, though

she was provided referrals for individual therapy as early in this dependency as

November 2011 and again in June 2012, Mother did not engage in therapy until

August 30. Father's whereabouts remained unknown.

According to De Cunzo, the Agency granted Mother short unsupervised visits in

late August 2012. In earlier supervised visits, Mother was observed to be loving and

affectionate towards G.P. and A.P. She provided snacks, gave both children individual

attention, and took their lead in play activities. De Cunzo noted what while Mother had

made a good start at addressing her drug use through treatment and negative testing, she

had not yet demonstrated she had gained insight into the cause of her drug use.

De Cunzo opined Mother needed to explore her triggers and red flags and develop a

viable relapse prevention plan. Nevertheless, Mother reported if she could not reunify

with G.P. and A.P., she wanted them placed with either of their maternal aunts, Natalie or

Claudia E.

In the March 21, 2013 status review report, social worker Christina Morse stated

the children's caregiver, Natalie, telephoned her to report Mother had been beaten up by

her ex-boyfriend Michael E. Additionally, Natalie disclosed Michael had transported

G.P. and A.P. to her home on January 1 in violation of the court's no contact order issued

in September 2011. When contacted, Mother denied she had been involved in a domestic

7
violence incident or that the children had been in the presence of Michael in violation of

the court's order. However, according to the police report, Michael punched Mother on

her face and chest and pulled her hair repeatedly. Additionally, G.P. and A.P. disclosed

they had spent Christmas Eve and Christmas day with Mother and Michael and that they

argued at times. As a result, Morse suspended Mother's overnight visits with the boys.

On January 18, 2013, Morse met with Mother at her home. During the ensuing

conversation Mother acknowledged Michael had contact with G.P. and A.P. during the

Christmas holiday and disclosed that she and Michael had gotten married in April 2012

while he was still in prison. Mother agreed to have no further contact with Michael or

any of his friends or acquaintances and to obtain a restraining order as soon as possible.

She also agreed to participate in domestic violence treatment when referred and to submit

to a drug test that day, but later claimed she could not test because she lost her

identification.

On January 21, 2013, Mother informed Morse of a second domestic violence

incident with Michael that occurred the day before. Mother reported Michael had held

her in her home against her will and would not allow her to open the door when Chula

Vista police arrived. Police eventually forced their way into the home and arrested

Michael. According to Mother, the court issued her a temporary restraining order earlier

that same day.

On February 25, 2013, Morse met with Mother to discuss her relationship with

Michael. Mother claimed Michael sought help from his probation officer but received

none. She also claimed Michael loved her, wanted to be with her and the children, and

8
she loved him and could not abandon him. Because Mother violated the court's order of

protection on at least three occasions and exposed the children to violence between her

and Michael, Morse concluded she could not protect G.P. and A.P. from emotional abuse.

Morse noted Mother lied to the Agency and the court about the extent of her ongoing

relationship with Michael. She had not demonstrated she was able to successfully

complete a domestic violence treatment program or develop a detailed domestic violence

safety plan. Morse recommended Mother's visitation remain supervised, that the court

terminate her reunification services, and schedule a selection and implementation

hearing.

In the April 4, 2013 addendum report, Morse reported Mother completed the

South Bay Women's Recovery Center's drug program on November 2012, and although

the center offered her recommended aftercare, she rejected the offer. Morse attempted to

contact Mother to request she drug test but was unsuccessful. Additionally, after

completing one domestic violence treatment group class, Mother failed to return to the

program.

The court held the 18-month permanency review hearing on April 4, 2013, and

found Mother had not made substantive progress with the provisions of her case plan.

Thus, there was not a substantial probability G.P. and A.P. would be returned to Mother's

physical custody within the subsequent six months because to do so would be detrimental

to the children's physical and emotional well-being. The court found the Agency had

offered or provided Mother reasonable services, terminated services, continued the

children's placement with Natalie, and scheduled a selection and implementation hearing.

9
 In the April 25, 2013 addendum report, social worker Robyn Santana reported the

Agency located Father in the federal correctional institution in Terre Haute, Indiana.

Father reported he was not aware the children were in foster care and requested an

attorney be appointed to represent him. He further stated he had been incarcerated since

2009 and would be until 2019, and that he might be deported to Mexico once he was

released.

The court held a special hearing on April 25, 2013, appointed counsel to represent

Father as he requested, and arranged for him to appear telephonically. The court found it

was not required to make a detriment finding as to Father because Father had not

requested custody of the children, and Father's counsel told the court that such a finding

would not be appropriate. The court ordered Father have supervised visits with G.P. and

A.P. in accordance with the rules and regulations of the facility in which he was

incarcerated. The court also ordered telephonic visits with the children be supervised.

In the July 31, 2013 section 366.26 assessment report, social worker Lengpea

Yang reported G.P. and A.P. remained placed with Natalie where they had been since

September 30, 2011. Yang had been able to observe only four visits between Mother and

her children because the inability to reach Mother by telephone made scheduling

difficult. Telephone calls went directly to Mother's voice mail and Yang could not leave

messages because her mail box was constantly full.

Yang reported G.P. and A.P. were typically ready and waiting to go to their visit

and left their caregivers willingly. When they arrived at the visits, the children appeared

happy to see their mother, smiled and yelled "Mommy." At the first visit, Mother forgot

10
to bring juice because she was in a rush to get to the visit on time, but did bring pop tarts

for the boys. She promised she would bring juice for the second visit, but on the next

visit, she failed to arrive with any snacks. G.P. was hungry so Yang shared her granola

bar with him.

For the third visit, Mother brought pizza and juice. Throughout the visit, Mother

followed each child's lead in play and both children were talkative. Yang opined G.P.

and A.P. were comfortable in their mother's presence. At the end of the visit, the children

kissed and hugged Mother goodbye, but neither displayed any emotional distress when

they separated or during the ride back to the caregiver's home.

Yang concluded G.P. and A.P. were likely to be adopted if the court terminated

parental rights. The children were specifically adoptable because their maternal aunt,

Claudia, living in Nevada, was very interested in adopting them and had begun the

process of obtaining an out-of-state contingent home study. If, for some reason, Claudia

could not adopt G.P. and A.P., there were 19 approved San Diego County families

interested in adopting the boys together.

Yang noted this was the second dependency G.P. and A.P. had been through

because of the same protective issues, and the Agency remained concerned for the

children's safety. While Mother did complete a drug treatment program, she could not

identify any of the 12 steps of the recovery model, though she claimed she had worked on

the first three steps. Therefore, Yang recommended the court identify adoption as the

children's preferred permanent plan.

11
 Yang reported she assessed Mother's relationships with G.P. and A.P. by

comparing the strength and quality of the relationships with the benefits of adoption. In

doing so, Yang opined Mother had not been able to consistently demonstrate she could

meet her children's needs. She could not provide them with a safe and stable home

environment, and she exposed them to domestic violence while violating a court order

she stay away from Michael. Yang did note that during visits Mother displayed some

parenting skills with the children and expressed both physical and verbal affection

towards them. However, Mother had not served in a parental role to the children for

nearly two years. Though G.P. and A.P. had a good time visiting with Mother, in Yang's

opinion, they did not view her as a primary parent who filled their needs.

Yang concluded the benefits of adoption outweighed the benefits of maintaining

the relationships G.P. and A.P. had with Mother. Adoption provided the children with

safety and the stability of being a permanent part of a family. Therefore, Yang

recommended the court terminate all parental rights and order adoption as the children's

permanent plan.

In the July 31, 2013 addendum report, Yang reported that Father had requested his

mother, Mrs. V., and sister, Mrs. C., be assessed for G.P. and A.P.'s possible placement.

After several unsuccessful attempts at contacting Mrs. V. and Mrs. C., a relative home

assessment worker learned from Mrs. C. that she and Mrs. V. lived together and were

unable to care for G.P. and A.P. Yang also reported Claudia continued to work with the

State of Nevada to complete her home study for placement. Yang reported she asked the

12
children how they felt about the possibility of living with Claudia in Nevada and they

responded, "That would be great!"

In the August 29, 2013 addendum report, Yang reported her observations garnered

from Mother's three visits with G.P. and A.P. over the previous 45 days. On the first

visit, the children greeted Mother by asking if she had brought food. However, as was

the case on several occasions in the past, Mother had not done so, claiming she had run

out of time. When later in the visit Mother asked G.P. for a hug, he ignored her and

continued to read a comic book. On the next visit, Mother was 20 minutes late, claiming

she had to stop at the store to pick up food. However, on the last visit, Mother once again

failed to provide snacks for the boys, prompting G.P. to ask Yang if she had a granola

bar. G.P. later asked Mother to buy them a snack from the office vending machine.

While Mother was gone, the boys spoke with their attorney's investigator and talked

about the time they spent with Claudia and their cousins.

Yang reported Claudia had not completed Nevada's ICPC3 requirements to have

G.P. and A.P. placed in her home. Additionally, Yang discussed permanent plan options

with the children's caregiver, Natalie, who expressed interest only in assuming legal

guardianship of the boys if Claudia could not adopt them.

On September 27, 2013, the Agency filed supplemental section 387 petitions on

behalf of G.P. and A.P. alleging their placements with Natalie were no longer appropriate

3 ICPC is an acronym for Interstate Compact on the Placement of Children.
13
because two days earlier the caregiver asked that the children be removed, as she could

no longer care for them.

According to the September 27, 2013 detention report, in June, Natalie reported

she and her boyfriend Isaac were not interested in caring for G.P. and A.P. long term. At

that time it was unclear if the ICPC for Claudia would be approved, and Natalie said she

and Isaac would assume guardianship of the boys only if it was not. In late August, Yang

informed Natalie the ICPC was not complete, but for Relative Home Assessment (RHA)

to approve the boys' placement with her, she and Isaac would have to find another

residence. Yang explained RHA could not approve the placement because Natalie lived

on the same property as Mother, who had a criminal and child protective services history.

Additionally, the boys' maternal grandmother, who also lived on the same property,

refused to cooperate with the Agency and submit to live scan testing.

Yang reported during the first week in September 2013 Natalie informed her she

and Isaac could no longer care for G.P. and A.P. Natalie explained Isaac had lost his job

and they could not afford to move from the family property, which she partially owned

and where she did not have to pay rent. However, Natalie expressed her willingness to

work with the Agency to find G.P. and A.P. "the most permanent placement" available.

On September 24, Natalie reported though she and Isaac wanted to continue to care for

the children, Isaac was beginning to train for a new job in Texas the next day and the

children had to be removed immediately. Natalie said once Isaac completed his 90-day

probationary period, she would join him in Texas and within 30 days find a suitable

residence for the family. She wanted G.P. and A.P. placed in foster care, but returned to

14
her and Isaac once they were settled. Therefore, on September 25, the Agency removed

the children from Natalie's home and placed them with a confidential licensed foster

family.

The court held the detention hearing on the section 387 petition on October 1,

2013, and confirmed its findings that the Agency had made a prima facie showing the

allegations were true by clear and convincing evidence. The court ordered G.P. and A.P.

detained in an approved confidential foster home and confirmed all prior visitation

orders.

In the October 8, 2013 addendum report, Yang reported since August 29 she had

observed four visits between the children and Mother. Visits were held weekly and after

August 29 had been increased from one hour to two. Prior to two visits, G.P. said he no

longer wanted to visit with Mother. A.P. expressed similar feelings before a visit in

October. However, with minimal encouragement, the children agreed to attend visits.

Yang explained that Mother brought snacks and toys to the visits. The children typically

ate snacks while talking about their week. Once finished, G.P. usually ran to the monkey

bars and played alone or with other children at the park. On the second visit, Mother

asked G.P. to spend the last 10 minutes of the visit with her, but he refused, and on the

third visit, A.P. wanted to be alone for the last 20 minutes of the visit.

Yang noted that while Mother had demonstrated some parenting skills during

visits with G.P. and A.P., she had not been a parent to the children for the previous two

years. Although G.P. and A.P. appeared to enjoy visits with Mother earlier in the

dependency, Yang observed their feelings had begun to change. She opined the children

15
did not view Mother as their primary parent, but instead, viewed her more as a friendly

visitor. The children looked forward to visits because Mother provided snacks and gifts,

but Yang believed those benefits from the parent-child relationship did not outweigh the

benefits adoption would provide. Therefore, Yang recommended the court terminate the

parents' parental rights and order G.P. and A.P.'s permanent plan be adoption.

On October 8, 2013, the court held the combined jurisdiction and disposition

hearings on the Agency's section 387 petitions and the contested selection and

implementation hearing pursuant to section 366.26. The court first proceeded with a

document trial as to jurisdiction on the section 387 petitions and received in evidence the

Agency section 366.26 assessment report and the addendum report both dated July 31,

the September 27 detention report, Yang's curriculum vitae, and her stipulated testimony.

According to her curriculum vitae, Yang held a bachelor's degree in both human

development and psychology and a master's degree in social work. She became

employed by the Agency as a protective services worker in October 2012 and since has

completed the 131-hour Public Child Welfare Training Academy instructional program

as well as 106 hours of Agency generated instruction, including but not limited to

specialized training in such disciplines as permanent placement assessment, visitation for

adoptions, guardianship training, and investigation.

Per her stipulated testimony, Yang was assigned this case on April 26, 2013.

Once she was able to reach Mother and arrange visitation, Mother visited with G.P. and

A.P. once weekly for one hour. She did not ask for additional visits until August 29 nor

16
did she ask for telephonic visits until September 25. Yang extended the visits to two

hours and provided Mother with the foster parents' telephone number.

Yang's stipulated testimony included that the boys were in a foster home with

parents who had no criminal or child protective services history, had an approved

adoptive home study, and wanted to adopt G.P. and A.P. However, they were not

interested in guardianship. According to Yang, the foster parents were willing to

facilitate ongoing contact between the boys and their biological relatives including

Mother.

Yang also would have testified that on their first night in the foster home G.P. and

A.P. asked to telephone Natalie but not Mother. She opined G.P. saw Mother more as a

friendly visitor than as a parent. Though G.P. showed affection toward Mother at visits,

he rarely initiated it and separated easily from her when visits ended. Though A.P.

appeared closer to Mother than G.P., he too separated easily when visits were over.

Yang stated G.P. and A.P. would not have been greatly harmed if they could no

longer have contact with Mother. In that regard, Yang opined the benefits of adoption

outweighed those of maintaining the children's relationships with Mother. In reaching

her opinion, Yang considered, among other things, the boys' ages, the fact that this was

their second trip though the dependency system, that Mother failed to reunify with

another child, Mother's drug history, and her recent contact with her husband, Michael.

Yang believed G.P. and A.P. deserved a permanent plan of adoption, not long-term foster

care.

17
 The court considered the documents and stipulated testimony received in evidence

and the arguments of counsel and found the allegations of the section 387 petitions true

by clear and convincing evidence. Therefore, the court continued G.P. and A.P. in their

licensed foster home placement.

The court then proceeded to the selection and implementation hearing and

received all evidence previously received for the purpose of the section 387 hearing.

Mother offered stipulated testimony that if called as a witness she would have testified

she loved her children very much and believed they loved her and were bonded to her.

She also would have testified she believed it would have been detrimental to G.P. and

A.P. to terminate her parental relationship with them.

After considering the evidence before it as well as oral argument from counsel, the

juvenile court found G.P. and A.P. were both generally and specifically adoptable and

that the children would be adopted if parental rights were terminated. The court further

found the beneficial relationship exception to adoption found in section 366.26,

subdivision (c)(1)(B)(i) did not apply, and therefore it terminated all parental rights of

both Mother and Father and freed the children for adoption.

On November 14, 2013, Father and Mother filed notices of appeal.

DISCUSSION

I

SECTION 387

Mother and Father argue the court erred in making true findings on the Agency's

section 387 supplemental petitions and removing G.P. and A.P. from Natalie's home.

18
Mother and Father contend that the error deprived them of the opportunity to argue the

applicability of the exception to adoption found in section 366.26, subdivision (c)(1)(A)

at the subsequent selection and implementation hearing. We reject these contentions.

When the Agency seeks to change the placement of a dependent child from

relative care to a more restrictive placement, such as foster care, it must file a

supplemental petition under section 387. A supplemental petition "shall contain a

concise statement of facts sufficient to support the conclusion that the previous

disposition has not been effective in the rehabilitation or protection of the child or, in the

case of a placement with a relative, sufficient to show that the placement is not

appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b).)

Under section 387, the Agency has the burden to show by a preponderance of the

evidence that the factual allegations alleged in the petition are true. If the court finds the

factual allegations are true, then the court determines whether the previous disposition is

no longer effective in protecting the child or whether placement with the relative is not

appropriate in view of the criteria in section 361.3. (§ 387; In re Miguel E. (2004) 120

Cal.App.4th 521, 542 (Miguel E.); Cal. Rules of Court, rule 5.56(a), (e);4 see In re

Javier G. (2006) 137 Cal.App.4th 453, 460-461.)

In determining whether the child's placement with a relative is appropriate, section

361.3, subdivision (a), directs the social worker and the court to consider, but not be

limited to, all the following criteria:

4 All further rule references are to the California Rules of Court.
19
"(1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs.

"(2) The wishes of the parent, the relative, and child, if appropriate.

"(3) The provisions of Part 6 (commencing with Section 7950) of
Division 12 of the Family Code regarding relative placement.

"(4) Placement of siblings and half siblings in the same home, if that
placement is found to be in the best interest of each of the children
as provided in Section 16002.

"(5) The good moral character of the relative and any other adult
living in the home, including whether any individual residing in the
home has a prior history of violent criminal acts or has been
responsible for acts of child abuse or neglect.

"(6) The nature and duration of the relationship between the child
and the relative, and the relative's desire to care for, and to provide
legal permanency for, the child if reunification is unsuccessful.

"(7) The ability of the relative to do the following:

"(A) Provide a safe, secure, and stable environment for the child.

"(B) Exercise proper and effective care and control of the child.

"(C) Provide a home and the necessities of life for the child.

"(D) Protect the child from his or her parents.

"(E) Facilitate court-ordered reunification efforts with the parents.

"(F) Facilitate visitation with the child's other relatives.

"(G) Facilitate implementation of all elements of the case plan.

"(H) Provide legal permanence for the child if reunification fails. [¶]
However, any finding made with respect to the factor considered
pursuant to this subparagraph and pursuant to subparagraph (G) shall
not be the sole basis for precluding preferential placement with a
relative.

20
 "(I) Arrange for appropriate and safe child care, as necessary.

"(8) The safety of the relative's home. For a relative to be
considered appropriate to receive placement of a child under this
section, the relative's home shall first be approved pursuant to the
process and standards described in subdivision (d) of Section 309."5

If the court finds the previous disposition is no longer effective or the placement

with the relative is not appropriate, then, in a separate disposition phase, the court must

determine whether removal of the child from his or her placement is required. (Rule

5.565(e)(2); Miguel E., supra, 120 Cal.App.4th at p. 542; In re Jonique W. (1994) 26

Cal.App.4th 685, 691.)

We review a decision to remove a child from a relative caretaker under the

substantial evidence test. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) We evaluate

the evidence in the light most favorable to the trial court's determinations, resolve all

evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable

inferences to uphold the trial court's findings. (Bickel v. City of Piedmont (1997) 16

Cal.4th 1040, 1053.) We do not reweigh the evidence, evaluate the credibility of

witnesses, or resolve evidentiary conflicts. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

5 For a relative to be considered appropriate to receive placement in the first
instance, the relative's home must be approved according to the process and standards
described in section 309, subdivision (d), which requires the Agency to conduct an in-
home inspection regarding safety and the relative's ability to care for the child, and to
check adult household members for criminal records and prior allegations of child abuse
or neglect. (§ 361.3, subd. (a)(8); see § 309, subd. (d).) The approval of the relative's
home is based on the standards set forth in regulations for family foster care licensing,
which include standards of safety and sanitation for the home and standards for basic
personal care, supervision, and services provided by the caregiver. (§ 309, subd. (d)(2);
see Miguel E., supra, 120 Cal.App.4th at pp. 541-542.)
21
The burden is on the party or parties challenging the findings and orders of the trial court

to show there is no evidence of a substantial nature to support the finding or order. (In re

L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

In its section 387 supplemental petition, the Agency alleged on or about

September 23, 2013, the placement with the relatives was no longer appropriate in view

of the criteria in section 361.3 in that the relative caregivers asked that the child be

removed as they could no longer care for the child. The factual basis of the supplemental

petition is that Natalie stated she could no longer care for G.P. and A.P.

We are satisfied that the juvenile court's findings of fact are supported by

substantial evidence. Following the September 27, 2011 detention hearing, the Agency

placed G.P. and A.P. with Natalie, who cared for the children along with her boyfriend,

Isaac. However, in June 2013, Natalie told the Agency that she and Isaac were not

interested in caring for the children long term. At that time, Natalie's sister, Claudia,

residing in Nevada, had expressed interest in adopting the boys and had initiated the

process of obtaining an out-of-state contingent home study. However, in late August, as

the ICPC process continued, it became unclear if Nevada would approve Claudia's home

study for placement because of the result of Claudia's live scan. Natalie then informed

the Agency she and Isaac would assume guardianship of G.P. and Armando if Claudia

could not be approved to adopt the boys.

At the beginning of September 2013, the Agency requested Natalie participate in

TDM to discuss G.P. and A.P.'s placement. Shortly thereafter, Natalie explained Isaac

had lost his job and they had to remain on the family property, where they paid no rent.

22
Unfortunately, Mother and her mother, who refused to submit to a live scan to determine

if she had background issues of concern, also lived at the family property. Accordingly,

RHA could not approve the residence for placement of G.P. and A.P. The Agency told

Natalie that if she and Isaac wanted to be approved for guardianship of the boys, she

would have to move to a new residence.

Later in September, Isaac informed the Agency that he had received a job offer in

Texas, was starting training there within the next few days, and there would be nobody to

care for G.P. and A.P. while Natalie was at work. Isaac was explicit that the boys needed

to be removed in the very near future.

The next day, Natalie spoke with Yang and told her that the Agency had to remove

G.P. and A.P. by the next morning. She confirmed that there would be nobody at home

to care for G.P. and A.P. while she was at work, and despite Yang's attempt to explore

other options for childcare, Natalie insisted she had no viable alternative. She said she

wanted the children placed in foster care, but once she and Isaac were settled in Texas in

about four months, she wanted the boys returned. However, she also expressed her

willingness to work with the Agency to find G.P. and A.P. "the most permanent

placement" available.

Mother and Father argue the juvenile court did not consider Natalie's and Isaac's

desire that G.P. and A.P. be placed with them once they got settled in Texas. This

argument requires us to reweigh the evidence. We cannot do so. (See In re S.C., supra,

138 Cal.App.4th at p. 415.) Mother and Father's contention also ignores the ambiguity in

the record regarding Natalie's and Isaac's desire to care for the boys on a long-term basis.

23
For example, Natalie told a social worker that she did not want to care for G.P. and A.P.

long term. She also expressed her desire to work with the Agency to find a the "most

permanent placement available" for the boys. Thus, although both Natalie and Isaac

expressed a desire to have the boys placed back with them sometime in the future, after

they were established in Texas, it is unclear if they intended to permanently care for the

boys. Simply put, Mother and Father have not carried their burden of showing the court's

finding under section 387 was not supported by substantial evidence.

II

THE BENEFICIAL RELATIONSHIP EXCEPTION

The juvenile court may terminate parental rights if there is clear and convincing

evidence of adoptability. (§ 366.26, subd. (c)(1).) After the court determines a child is

likely to be adopted, the burden shifts to the parent to show the termination of parental

rights would be detrimental to the child under one of the four exceptions listed in section

366.26, subdivision (c)(1)(B). (In re C.F. (2011) 193 Cal.App.4th 549, 553.) An

exception to the termination of parental rights exists when "[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 parent must do more than demonstrate 'frequent and loving contact [,]'

[citation] an emotional bond with the child, or that parent and child find their visits

pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental

role' in the child's life." (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent

must also show that his or her relationship with the child " 'promotes the well-being of

24
the child to such a degree as to outweigh the well-being the child would gain in a

permanent home with new, adoptive parents.' " (Ibid., quoting In re Autumn H. (1994) 27

Cal.App.4th 567, 575 (Autumn H.).)

We review the juvenile court's ruling under the substantial evidence test.

(Autumn H., supra, 27 Cal.App.4th at p. 576.)

Here, Mother argues her parental rights should not have been terminated given the

beneficial nature of her ongoing relationship with G.P. and A.P. The Agency

acknowledges that Mother had regular visitations with the boys. Nonetheless, the

Agency asserts Mother did not establish that the boys would benefit from continuing their

relationship with her. (See Autumn H., supra, 27 Cal.App.4th at pp. 575-577.)

Examining the evidence in the light most favorable to the order, we agree with the

Agency.

Yang, who observed Mother during her visits with G.P. and A.P., opined that

Mother was more of a friendly visitor than a mother to the boys. In addition, Yang noted

that although Mother did exhibit some parenting skills such as feeding the boys, taking

them to the restroom, and playing with them, she had not been a parental figure in the

boys' lives in two years. Yang also reported that more recently G.P. indicated he no

longer wanted to visit with Mother. A.P. expressed similar feelings as well. Further,

when Mother asked G.P. to spend the last 10 minutes of a visit with her, he refused.

During the last 20 minutes of two subsequent visits, A.P. acted in a similar manner and

simply wanted to play by himself. On the way home from a visit in October 2013, A.P.

told Yang that he did not want to be touched or talked to.

25
 In addition, the record shows that Mother has struggled to overcome her drug

addiction. Although she completed a drug treatment program, she rejected the program's

recommendation that she participate in aftercare, and she proved incapable of identifying

any of the 12 steps of recovery despite her claim that she worked though through the first

three steps.

Mother's inability to end her relationship with Michael and break the cycle of

domestic violence also supports the court's finding that her ongoing relationship with her

children does not promote the well-being of G.P. and A.P. to such a degree as to

outweigh the benefit the boys would gain in a permanent home with new, adoptive

parents. (See Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother failed to return to her

domestic violence group after attending only one session although she had been involved

with at least two domestic violence incidents with Michael, whom she later married. In

doing so, she violated the court's order of protection on at least three occasions, resulting

in her visitation with G.P. and A.P. reverting back to supervised visits after the Agency

had lifted the supervision requirement a short time earlier.

Mother does not address any of the evidence supporting the juvenile court's

finding. Instead, she emphasizes that she loves both G.P. and A.P., she interacted well

with the boys during her visits while providing for some of their basic needs, and her

children like to be with her. Put differently, Mother is not contending that substantial

evidence does not support the juvenile court's finding, but instead, she is asking us to

reweigh the evidence. This we cannot do. (See In re S.C., supra, 138 Cal.App.4th at

p. 415.)

26
 Moreover, we are not persuaded by Mother's reliance on In re S.B. (2008) 164

Cal.App.4th 289 (S.B.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M).

Both cases are distinguishable from the instant matter.

In S.B., supra, 164 Cal.App.4th 289, we concluded the beneficial relationship

exception does not require that a parent establish that a child's primary attachment was to

him or her. (Id. at p. 299.) Nonetheless, since we issued our opinion in S.B., we have

discouraged the improper and inaccurate use of that opinion. (See In re Jason J. (2009)

175 Cal.App.4th 922, 937.) Further, we expressly limited the holding of S.B., supra,

164 Cal.App.4th 289: "[W]e once again emphasize that S.B. is confined to its

extraordinary facts. It does not support the proposition a parent may establish the parent-

child beneficial relationship exception by merely showing the child derives some

measure of benefit from maintaining parental contact." (In re C.F., supra, 193

Cal.App.4th at pp. 558-559.)

Further, S.B, supra, 164 Cal.App.4th 289 is factually distinguishable from the

instant matter. In S.B., the record included a bonding study by a doctor who described

the bond between the father and the child as fairly strong and opined that there was

potential for harm if the child lost her parental bond with the father. (Id. at pp. 295-296.)

Here, the record is devoid of any evidence from a mental health provider, social worker,

or bonding expert that terminating parental rights so that G.P. and/or A.P. could be

adopted would cause either child emotional or psychological detriment.

Similarly, Amber M., supra, 103 Cal.App.4th 681 does not bolster Mother's

position. In that case, the Court of Appeal concluded the mother had satisfied her burden

27
of establishing the beneficial relationship exception. (Id. at p. 689.) In reaching this

conclusion, the court noted the "common theme running through the evidence from the

bonding study psychologist, the therapists, and the CASA [Court Appointed Special

Advocate] is a beneficial parental relationship that clearly outweighs the benefit of

adoption." (Id. at p. 690.) Here, Mother can point to no analogous evidence. Absent

Mother, there is not a single witness or any evidence of a beneficial parental relationship

between Mother and her children.

Accordingly, we conclude substantial evidence supports the juvenile court's

finding that the beneficial relationship exception did not apply here.

III

FATHER'S DUE PROCESS RIGHTS

" 'It is axiomatic that due process guarantees apply to dependency proceedings.' "

(In re Dakota H. (2005) 132 Cal.App.4th 212, 222, quoting Ingrid E. v. Superior Court

(1999) 75 Cal.App.4th 751, 756; Santosky v. Kramer (1982) 455 U.S. 745, 753-754.) In

determining the process that is due, the court evaluates three elements: the private

interests at stake, the government's interest, and the risk the procedures used will lead to

an erroneous decision. (Mathews v. Eldridge (1976) 424 U.S. 319, 335; Dakota H.,

supra, 132 Cal.App.4th at pp. 222-223; see also Santosky, supra, 455 U.S. at pp. 753-

757.)

The California dependency system comports with federal due process

requirements because "[t]he number and quality of the judicial findings that are necessary

preconditions to termination convey very powerfully to the fact finder the subjective

28
certainty about parental unfitness and detriment required before the court may even

consider ending the relationship between natural parent and child." (Cynthia D. v.

Superior Court (1993) 5 Cal.4th 242, 256.)

While California's dependency scheme no longer uses the term "parental

unfitness," and instead requires a finding that awarding custody of a dependent child to a

parent would be detrimental to the child, due process requires that the finding of

detriment be made by clear and convincing evidence before parental rights may be

terminated. (In re P.A. (2007) 155 Cal.App.4th 1197, 1210-1211.)

Here, Father contends the juvenile court's determination that G.P. and A.P. are

adoptable violated his due process rights because the court never made a finding the

children would suffer a detriment if returned to Father. The Agency maintains that

Father invited the error. In response, Father contends that "[w]here the fundamental right

of parenting is involved, the doctrine of 'invited error' has no application." However,

Father does not provide any authority for this proposition. And although we do not

discount the importance of a presumed parent's due process rights in the removal of his or

her child from the parent's custody, we are not aware of any authority that would provide

an absolute safeguard against the invited error doctrine in this context. As such, we

analyze the Agency's claim that Father invited the error he now claims on appeal.

"Under the doctrine of invited error, when a party by its own conduct induces the

commission of error, it may not claim on appeal that the judgment should be reversed

because of that error." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212;

Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [" 'Where a party by his conduct

29
induces the commission of error, he is estopped from asserting it as a ground for reversal'

on appeal."].)

At the April 25, 2013 hearing in this matter, the following exchange occurred:

"[Agency's Counsel]: Can we also have a finding – we never
removed custody from the father and we're going to be at a [section
366.26] hearing.

"[Father's Counsel]: Your Honor, he doesn't have custody of the
children, so it wouldn't be appropriate.

"The Court: He doesn't have custody of the children. [¶] Okay. All
right. So July 31st.

"[Minors' counsel]: Thank you, Your Honor.

"[The Court]: Anything else? [¶] One second, everybody. Hold on.

"[Agency's Counsel]: I think there's a recent case that said that if we
don't remove custody, we have to make a detriment finding as to the
father regarding the placement – if he wanted placement.

"[The Court]: Right. [¶] I think we're beyond that.

"[Agency's Counsel]: This case was at a [section 366.26 hearing]
and the Court never made a detriment finding to remove from the
father. [¶] I would be asking at the next hearing that the Court look
at the detriment –

"The Court: Bring that case and we'll look at it.

"[Agency's Counsel]: Okay. [¶] Maybe we can ask. [¶] Is he
requesting, at this time, custody?

"[Father's Counsel]: Your Honor, since the Court has already
removed custody from both parents and ordered a placement, I don't
think that removing custody from the father is appropriate, given that
he never had custody to begin with and the Court has already made
orders on where the children should be placed. [¶] I need to look
further into whether or not there is any kind of noticing or search

30
 effort issues. [¶] If it then becomes my motion to bring this back to
disposition, it's something we could later discuss.

"[Agency's Counsel]: Okay. Because originally she said that we
had removed custody from both mother and father.

"[Father's Counsel]: No. No. No. [¶] We had never removed
custody from the father, according to the minute orders.

"[Agency's Counsel]: But is the father requesting that the Court
consider him as a placement? [¶] If he is, we may need to make a
detriment finding as to the father.

"[Father's Counsel]: Father's only request at this point is that he has
relatives evaluated.

"The Court: So he's not requesting custody?

"[Father's Counsel]: (No audible response.)

"[Agency's Counsel]: Okay.

"The Court: Okay.

"[Minors' Counsel]: Thank you, Your Honor.

"The Court: Okay. Thank you."

The Agency maintains that Father's counsel misled the juvenile court by arguing a

detriment finding as to Father was not appropriate. In doing so, the Agency contends

Father invited the error of which he now complains. In contrast, Father argues he did not

mislead the court, but, instead, the exchange shows there existed some confusion

regarding whether a detriment finding was necessary. Father also insists that the Agency

had "ample opportunity to dispute" Father's position. Thus, Father asserts that we cannot

find invited error here because: (1) the record is ambiguous regarding whether Father's

counsel requested the court refrain from any finding of detriment; and (2) the Agency did

31
not effectively or forcefully argue against Father's position. We reject both these

contentions.

Although the exchange between the juvenile court and counsel at the April 25

hearing was somewhat muddled, we are able to draw a few conclusions. The Agency

argued at least twice that a finding of detriment was needed. Father's counsel clearly

asserted that a finding of detriment was not appropriate because Father never had custody

and was not asking for custody of the boys. In addition, Father's counsel represented to

the juvenile court that a detriment finding might be something she would raise later

depending on what her investigation of the case uncovered. In light of this record, we are

satisfied that Father's counsel made a tactical decision to forgo a detriment finding

pending her investigation of the case. And, although she later represented Father at the

section 366.26 hearing, she decided not to demand a detriment finding at that hearing.

In addition, there is no rule requiring the Agency to have argued against Father's

position before it can invoke the invited error doctrine. Further, even if we were to adopt

this rule, it would not save Father's argument. The Agency did disagree with Father, but

the court ultimately agreed with Father's counsel and did not make a detriment finding.

On the record before us, we conclude Father invited the error of which he now

complains and cannot raise the issue on appeal. (See Transport Ins. Co. v. TIG Ins. Co.

(2012) 202 Cal.App.4th 984, 1000.)

Further, even if we were to find that Father did not invite the error of which he

now appeals, we nevertheless would conclude Father's contention lacks merit. A finding

of detriment may be implied. (See In re A.S. (2009) 180 Cal.App.4th 351, 363; In re

32
P.A., supra, 155 Cal.App.4th at pp. 1210-1212; see also In re Corienna G. (1989) 213

Cal.App.3d 73, 83-84 [implied finding appropriate where substantial evidence supports

it].) Here, the record shows Father has never had a relationship with G.P. or A.P. His

most recent contact with either child was in May 2008, when both he and Mother were

arrested and charged with possession of a controlled substance and violation of probation.

The Agency took G.P. into protective custody when police found drugs and paraphernalia

accessible to him and determined Father could not protect G.P. or provide for his support.

Father currently is in prison in Indiana and will not be released until 2019. In addition,

there is evidence in the record that Father will be deported upon his release.

Despite this evidence, Father contends that an incarcerated parent cannot be

stripped of his parental rights simply due to the fact of his incarceration. Generally, we

agree with this proposition, but note that none of the cases Father cites compel a different

conclusion than the one we reach here. (See Maggie S. v. Superior Court (2013) 220

Cal.App.4th 662, 672; In re S.D. (2002) 99 Cal.App.4th 1068, 1077; In re Brittany S.

(1993) 17 Cal.App.4th 1399, 1407.) These cases are distinguishable from the instant

matter because in all three cases, the subject parent either was incarcerated near his or her

child and was requesting reasonable reunification services or had arranged for a caregiver

to care for his or her children while the parent was incarcerated. Here, Father asked the

juvenile court to place the children with his sister and mother, but they could not care for

the boys. Father argues this fact should not be used to find detriment because his

relatives could have cared for G.P. and A.P. when they were removed from their mother's

care some two years ago. However, this argument is mere conjecture. Instead, we are

33
concerned with whether Father can arrange care for his children now. There is no

indication in the record that he can. Further, he is not requesting any reunification

services. In other words, our opinion here is not creating the "go to jail, lose your child"

rule as Father claims. (See In re Brittany, supra, 17 Cal.App.4th at p. 1407.)

In summary, we determine there is no merit to Father's claim that his due process

rights were violated. Although the Agency raised the issue of a detriment finding as to

Father, Father's counsel persuaded the court that one was not necessary. In addition, the

record supports an implied finding of detriment as G.P. was removed from Father's

custody in 2008; Father will be in prison until 2019; he stated he will most likely be

deported upon his release; and Father cannot arrange for any of his relatives to care for

G.P. and A.P. Lost in Father's arguments here is any semblance of care or concern for

the well being of his boys. "The reality is that childhood is brief; it does not wait while a

parent rehabilitates himself or herself. The nurturing required must be given by someone,

at the time the child needs it, not when the parent is ready to give it." (In re Debra M.

(1987) 189 Cal.App.3d 1032, 1038.) Here, Father has not been part of either of his boys'

lives since 2008. He has not expressed any desire to become an active part of his

children's lives, and clearly, he is not in a position to accept custody of them. "Childhood

does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th

295, 310.) Here, there is no indication that Father was ever an adequate parent or has any

desire to become one. His children deserve better and the juvenile court's order finding

G.P. and A.P. adoptable is an important step toward the permanency and stability they

need.

34
 It would be nonsensical to send this case back to the juvenile court to make an

explicit finding of detriment when Father's counsel discouraged the court from doing so

in the first instance and the record supports an implied finding of detriment.

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

35
Filed 7/10/14
COURT OF APPEAL - STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION ONE

In re G.P. et al., Persons Coming Under the Juvenile Court Law.
________________________________________

S.D. COUNTY HEALTH & HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
Y.Z. et al.,
Defendants and Appellants.
D064965
San Diego County No. J514402
San Diego County No. J514402B-C

THE COURT:

The opinion in this case filed June 19, 2014 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), respondent San Diego County Health and Human Resources request pursuant to
California Rules of Court, rule 8.1110(a), for partial publication is GRANTED. The opinion,
with the exception of Parts I and II, shall be published.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing on
page one of said opinion be deleted and the opinion herein be certified for partial publication,
with the exception of Parts I and II, in the Official Reports.

__/s/ Huffman___________________________
Acting Presiding Justice

cc: All Parties