In re K.B. CA4/2

Filed 9/30/15 In re K.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re K.B. et al., a Person Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E063542

Plaintiff and Respondent, (Super.Ct.No. J248943 & J248944)

v. OPINION

J.B.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

Maryann M. Goode, under appointment by the Court of Appeal, for Defendant

and Appellant.

Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for

Plaintiff and Respondent.

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 Defendant and appellant J.B. (Father) is the father of K.J.B. (J.B.) and K.A.B

(A.B.; collectively, “the children”). The juvenile court found the children were

adoptable and terminated Father’s parental rights. (Welf. & Inst. Code, § 366.26.)1

Father raises two issues on appeal. First, Father contends the juvenile court erred by

finding the children were adoptable. Second, Father asserts the juvenile court erred by

not applying the parent-child bond exception to termination. (§ 366.26, subd.

(c)(1)(B)(i).) We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND

The children are fraternal twins. They were born in December 2009. J.B. is

male. A.B. is female. J.B. suffers from attention deficit hyperactivity disorder (ADHD)

and cognitive delays. He has difficulty with short term memory, speech skills, and

language skills. A.B. suffers from ADHD. She has difficulty with her short term

memory and staying focused on tasks. She suffers speech and language delays.

The children’s mother is T.M. (Mother). Mother is developmentally disabled;

she has learning disabilities and mild mental retardation. In March 2013 Mother lived

with her boyfriend (Joseph) at her aunt’s home. Joseph is developmentally delayed.

Father had four older children who were born between 1991 and 2006. Father’s

parental rights to the older children were terminated in 2009. Father’s older children

1All subsequent statutory references will be to the Welfare and Institutions
Code, unless otherwise indicated.

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were adopted by Father’s mother. Father worked as a forklift driver at a trucking

facility. Father was the children’s presumed father.

B. DETENTION

On March 22, 2013, Joseph was seen hitting J.B.’s face. Mother did not protect

J.B. A social worker from San Bernardino County Children and Family Services (the

Department) contacted Mother. Mother admitted seeing Joseph “‘be mean to the kids.’”

Joseph’s sister told the social worker she had seen Mother hit A.B.’s chest.

Mother’s aunt (Aunt) and Aunt’s daughter reported seeing Mother strike J.B.,

causing blood to pool in his nose. Aunt also expressed concern that A.B. had been

vomiting intermittently for a month, and Mother had not taken the child to a doctor;

rather, Mother yelled at the child when she vomited. Additionally, during the prior

year, A.B. suffered a broken wrist and J.B. suffered broken ribs while in Mother’s and

Father’s care. The Department detained the children.

The Department filed petitions alleging: (1) Father’s whereabouts were

unknown and that he left the children with no provisions for support (§ 300, subd. (g));

and (2) Father’s parental rights to his four older children were terminated, thus placing

the children at risk of harm (§ 300, subd. (j)). The juvenile court found the Department

established a prima facie case, and ordered the children be detained outside of Mother’s

and Father’s custody.

C. JURISDICTION/DISPOSITION

Father was located. In the past, Mother and Father lived together in Bakersfield.

Mother and Father engaged in acts of domestic violence with the children present and

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Father threatened to kill Mother. Mother left the children in Father’s care when she left

Bakersfield with Joseph. Father was “kicked out” of his sister’s home, so he left the

children with a neighbor and called Mother “to come and get the children,” although he

was concerned about how Mother cared for the children.

Father informed the Department that he was currently unable to care for the

children. Father explained, “‘I am unable to take the twins; I don’t have a place to live

and I am living with a lady and my fiancé.’” Father said one of the women did not want

the children in the home. Father denied being involved in domestic violence or having a

history of domestic violence.

The juvenile court dismissed the allegation reflecting Father left the children

with no provision for support. (§ 300, subd. (g).) The court found true the allegation

that Father’s parental rights to his older children were terminated. (§ 300, subd. (j).)

The court granted Father supervised visitation with the children once per week for two

hours. The court ordered Father to participate in family reunification services.

D. SIX-MONTH REVIEW

The children were placed in the same foster home, along with their half sibling,

V.F., who was Mother and Joseph’s child. The children were “well-bonded to their

foster family.”

Father did not participate in any of his court ordered reunification services.

Father visited the children once during the period of July 15, 2013, to October 15, 2013.

The juvenile court modified Father’s supervised visitation with the children to once per

month for one hour.

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 E. 12-MONTH STATUS REVIEW

Mother moved into a home with Father and Father’s fiancée in Victorville.

Father needed Mother’s Social Security income to help pay the rent. Father questioned

why he needed to participate in services because he was a non-offending parent.

Nevertheless, Father attended two domestic violence classes, but missed four domestic

violence classes. Father attended three parenting classes and missed three parenting

classes. Father failed to participate in individual counseling. Father had difficulty

visiting the children because he worked Monday through Saturday in Ontario. In March

and April 2014, Father generally visited the children with Mother once per week for two

hours. The visits were “appropriate.” Father did not visit the children during May

2014.

The juvenile court found Father made minimal progress in his case plan. The

court granted Father supervised visitation with the children once per week for two

hours. The court ordered Father to participate in reunification services.

F. 18-MONTH STATUS REVIEW

Father was directed to participate in 52 weeks of domestic violence classes.

Father attended eight of the classes. Father was directed to participate in 12 weeks of

parenting classes. Father attended 10 of the classes. Father had not participated in

individual counseling due to his work schedule. Father’s visits took place at a park on

Sundays, separate from Mother’s visits. Father missed visits “at times.” On September

9, 2014, Father and his fiancée were 15 minutes late to the visit. Father brought his

adult son and the son’s girlfriend to the visit without obtaining prior authorization.

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Father’s fiancée cursed while the children were present. Father and his fiancée

discussed the case with the children’s caretaker. J.B. kicked woodchips at Father,

causing scratches on J.B.’s foot. The Department moved Father’s visits back to the

Department’s offices.

On September 4, the children and their half sibling, V.F., were moved to the

home of a nonrelated extended family member. The children adjusted well to their

placement and appeared to be “well-bonded to their new family.”

Father testified at the status hearing. Father explained that his parental rights to

three of his older children were terminated because he was a long-haul truck driver and

was not home. Father explained that the older children’s mother was abusive.

The juvenile court found Father failed to make substantive progress in his case

plan and made minimal progress in resolving the issues that led to the dependency. The

court terminated Father’s reunification services. The court granted Father supervised

visitation with the children for one hour two times per month.

G. TERMINATION

The children were approved for wraparound services, and they continued to

reside with the nonrelated extended family member. A.B. attended the Head Start

Preschool program. She knew her shapes, colors, alphabet, and numbers one through

20. At times, A.B. had crying fits for several hours and was aggressive. J.B. was on a

waiting list for preschool. J.B. also knew his shapes, colors, alphabet, and numbers one

through 20.

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 From September 4, 2014, through March 12, 2015, Father visited the children

four times. Before the visits, the children often had physical fights with one another,

would be defiant with their prospective adoptive parents, and ask many questions

regarding whether Father would be present at the visit. If Father failed to visit with the

children, the children blamed their prospective adoptive mother for not waiting long

enough for Father to arrive.

The children’s birthday was in December. Father visited the children on their

fifth birthday, but failed to say “Happy Birthday” or bring a present. The children cried

after the visit and asked why Father did not wish them a happy birthday or give them a

present. At a visit two weeks later, Father wished the children a happy birthday and

gave them a Lego set for children 10 years old or older. The Lego pieces were too

small for the children, so the Legos had to be put away.

After the visits, the children argued with one another about who got more

attention from Father, which would result in hitting and yelling that would last for days

afterward. On the night A.B. arrived home from the visits, she would have

“‘meltdowns’” in which she screamed for hours, and hit and kicked her prospective

adoptive mother. On one occasion, the prospective adoptive mother had to go to the

hospital because A.B. kicked her jaw. The children were making progress with their

wraparound services, but the progress that was made between visits was lost once the

children saw Mother and/or Father.

The prospective adoptive parents wanted to adopt the children and their half

sibling, V.F. The children were too young to express their wishes about adoption. The

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children appeared comfortable in their prospective adoptive parents’ home and appeared

to be attached to them. The children referred to Mother and Father as “‘mom’ and

‘dad,’” and referred to the prospective adoptive parents by their first names. The

prospective adoptive mother stayed home during the day to care for the children. The

Department concluded the children were adoptable because the prospective adoptive

parents were committed to the children’s long-term care, the prospective adoptive

parents loved the children, the children were young, and the children were attached to

the prospective adoptive parents.

On April 23, 2015, Father filed a request to change a court order. (§ 388.)

Father asserted circumstances had changed because (1) he completed individual

counseling, parenting classes, and domestic violence classes; and (2) he was no longer

living with Mother. Father requested the children be returned to Father’s custody, or

that Father be given more services and visitation. Father asserted the change would be

in the children’s best interests because the children wanted to live with Father, the

children called Father “dad” or “daddy,” the children would suffer if they lost their

relationship with Father, the children were happy during visits with Father, and the

children were unhappy in foster care. A letter attached to the request reflected Father

completed a 12-week parenting class and a 12-week domestic violence program.

In regard to Father’s request for increased visitation, the Department noted that

between November 26, 2014, and April 13, 2015, Father missed six visits and attended

four visits. As to Father finishing classes and counseling, a letter from a counselor

about Father’s progress reflected Father had been able to incorporate some new skills

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into his daily living, but Father gained “minimal insight” into how his behavior affected

others; and Father lacked “essential parent protective” skills, which was a “serious

issue.” In regard to the children wanting to live with Father, a Department social

worker noted that she had visited the children several times at the prospective adoptive

parents’ home. The children appeared “very happy” at the home. The children hugged

the prospective adoptive parents and told the prospective adoptive parents that they

loved them. During one visit at the home, A.B. told the social worker, “‘I want to stay

here. I just want to visit with my dad. Old dad talked to our dad and we want to stay

here.’”

Father testified at the hearing. Father explained that the majority of visits he

missed were due to conflicts with his work schedule. Father explained that the children

lived with him from the time of their birth until he “returned them to their mother,”

prior to the children being removed. Father asserted that he and the children shared a

strong bond. During visits, Father and the children interacted by playing with toys.

Father admitted that from September to March he only visited the children four times.

The juvenile court found the petition failed to state a change in circumstances,

and it was not in the children’s best interests to grant the request. (§ 388.) The court

denied Father’s request. The court found the children were likely to be adopted. The

court said, “They are adoptable generally because of their young age, because of their

physical health. They do have some needs, some special needs, that the concurrent

adoptive parents are well aware of, but the Court finds that even generally, even with

those needs, they would be adoptable, but specifically they are adoptable because they

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are all together with their siblings, which is a very good thing.” The court concluded

the children were “both generally and specifically adoptable.”

In regard to the parent-child bond exception, the trial court found the exception

did not apply because Father did not have regular visits with the children. The court

“noted the number of visits missed.” The juvenile court also found Father did “not

occupy a parental role” in the children’s lives. The court concluded Father was a

friendly visitor to the children. The court terminated Father’s parental rights.

DISCUSSION

A. ADOPTABILITY

Father contends the juvenile court erred by finding the children are generally and

specifically adoptable. The Department contends Father forfeited this issue for appeal

by failing to challenge the evidence in the juvenile court. We choose to address the

merits of Father’s contention.

“A finding of adoptability requires ‘clear and convincing evidence of the

likelihood that adoption will be realized within a reasonable time.’ [Citation.] The

question of adoptability usually focuses on whether the child’s age, physical condition

and emotional health make it difficult to find a person willing to adopt that child.

“If the child is considered generally adoptable, we do not examine the suitability

of the prospective adoptive home. [Citation.] When the child is deemed adoptable

based solely on a particular family’s willingness to adopt the child, [i.e., specifically

adoptable], the trial court must determine whether there is a legal impediment to

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adoption. [Citation.] The juvenile court should also explore a child’s feelings toward

his or her parents, foster parents and prospective adoptive family.

“On review, we determine whether the record contains substantial evidence from

which the court could find clear and convincing evidence that the child was likely to be

adopted within a reasonable time. [Citations.] . . . We give the court’s adoptability

finding the benefit of every reasonable inference and resolve any evidentiary conflicts in

favor of the judgment of the trial court.” (In re B.D. (2008) 159 Cal.App.4th 1218,

1231-1232.)

The juvenile court found the children were “adoptable generally,” so we will

discuss general adoptability. The evidence reflects the children were five years old.

A.B. attended preschool, and J.B. was on a waiting list for preschool. Both children

knew shapes, colors, the alphabet, and numbers one through 20. The children’s

emotional issues were improving due to wraparound services. The emotional progress

subsided when the children visited Mother and Father or had failed visits with Mother

and Father. The children were not taking medication for their ADHD.

Given the children’s young age, their physical health, their ability to learn, their

progress with emotional issues when away from Mother and Father, and their ADHD

not requiring medication, it was reasonable for the juvenile court to find the children

generally adoptable. It appears the children have some special emotional needs, but the

special needs are manageable with services. Accordingly, we conclude the foregoing

evidence provides substantial support for the finding that the children are adoptable

because the children are young and generally healthy.

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 Father contends the children were not adoptable because they might be autistic,

they have speech and language delays, and they are defiant toward their prospective

adoptive parents. Father’s argument is highlighting the evidence that does not support

the judgment. Father is correct that the record includes evidence that does not favor a

finding of adoptability. However, as set forth ante, there is substantial evidence

supporting a finding that the children are adoptable. Our review is limited to

determining that the record includes substantial evidence supporting the juvenile court’s

finding. (In re Walter E. (1992) 13 Cal.App.4th 125, 140.) Because the record includes

substantial evidence supporting the adoptability finding, we find Father’s argument to

be unpersuasive.

The juvenile court also found the children to be specifically adoptable. Father

asserts there is a lack of substantial evidence to support the finding of specific

adoptability. Because we have concluded there is substantial evidence supporting the

finding of general adoptability, the issue related to specific adoptability has been

rendered moot. (In re A.B. (2014) 225 Cal.App.4th 1358, 1364 [when no effective relief

can be granted, an issue is moot].) Accordingly, we do not address the substance of the

specific adoptability issue.

B. PARENT-CHILD BOND EXCEPTION

Father contends the juvenile court erred by not applying the parent-child bond

exception to terminating parental rights. (§ 366.26, subd. (c)(1)(B)(i).)

If a juvenile court finds a dependent child is adoptable, then it will terminate

parental rights unless one of the statutorily enumerated exceptions is applicable.

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(§ 366.26, subd. (c)(1).) One of the enumerated exceptions provides that parental rights

shall not be terminated if “[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).)

There is a split of authority as to which standard of review is applicable to a

decision to not apply the parent-child bond exception—(1) substantial evidence;

(2) abuse of discretion; or (3) a hybrid of substantial evidence and abuse of discretion.

(In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425 [Fourth Dist., Div. Three applied

the substantial evidence standard]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576

[Fourth Dist., Div. One applied the substantial evidence standard]; In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1351 [First Dist., Div. Three applying the abuse of

discretion standard]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [Second Dist.,

Div. Eight applying the abuse of discretion standard]; In re K.P. (2012) 203 Cal.App.4th

614, 621-622 [Second Dist., Div. Seven applying the hybrid standard]; In re Bailey J.

(2010) 189 Cal.App.4th 1308, 1314-1315 [Sixth Dist. applying the hybrid standard].)

Father applies the substantial evidence standard of review. Thus, we too will apply the

substantial evidence standard of review.

In regard to regular visitation and contact, the record supports the juvenile

court’s finding because (1) Father visited the children four times during the six month

period from September 2014 to March 2015; (2) Father missed two of three visits in

April 2015; and (3) parental rights were terminated on May 11, 2015. The evidence

reflecting four visits in a six-month period combined with two missed visits in the

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month prior to termination is substantial support for the juvenile court’s finding that

Father did not maintain regular visitation with the children because the visits were too

infrequent to constitute regular contact. Accordingly, substantial evidence supports the

juvenile court’s finding that the first prong of the parent-child bond exception was not

satisfied.

Next, we address the benefit prong. “The benefit to the child from continuing

such a relationship must . . . be such that the relationship ‘“promotes the well-being of

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

permanent home with new, adoptive parents.”’” (In re Aaliyah R., supra, 136

Cal.App.4th at p. 449.)

“‘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] ‘[F]or the

exception to apply, the emotional attachment between the child and parent must be that

of parent and child rather than one of being a friendly visitor or friendly nonparent

relative, such as an aunt.’” (In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)

At the time of termination, in May 2015, the children were five years old. At the

time of detention, in April 2013, the children were three years old. The children lived

with Father from the time they were born until sometime prior to detention, when he left

the children with a neighbor and then called Mother to retrieve the children. We infer

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the children lived with Father for approximately the first three years of their lives.

Thus, a little over half of the children’s young lives were spent in Father’s custody.

As to the effect of Father’s interaction with the children, the evidence reflects the

children’s emotional progress, which they gained from wraparound services, was lost

upon visiting Father or upon Father missing visits. When Father missed visits, the

children cried. When A.B. returned home from visits she would have “‘meltdowns’”

wherein she would scream for hours and hit and kick her prospective adoptive mother.

The children would act out and fight with one another in conjunction with the visits.

The crying, fighting, and screaming are substantial evidence supporting a finding that

Father’s interaction with the children had a negative effect.

In regard to the children’s particular needs, the children both suffered from

ADHD, but were unmedicated. A.B. had emotional meltdowns after visiting Father.

The children participate in wraparound services, and they have benefitted from the

services. The children need an adult who has the ability to help them participate in

services, e.g., someone to transport them, be on time to appointments, and work with

them at home.

In sum, the evidence reflects the children were three years old when they were

detained, five years old at the time of termination, they spent a little over half of their

young lives in Father’s care, Father’s interactions with the children had negative effects,

and the children needed a responsible adult who was available to assist them with

wraparound services. Given this evidence, Father did not fulfill the role of a parent in

the children’s lives. Father rarely visited the children, i.e., four times in six months.

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During visits, he and the children played with toys—Father did not assist the children

with progressing through their wraparound services. Accordingly, there is substantial

evidence reflecting the relationship with Father does not promote the children’s well-

being too such a degree as to outweigh the well-being the children would gain in a

permanent home with new, adoptive parents.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

KING
J.

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