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In re Grace P.

California Court of Appeals, Second District, Third Division

February 10, 2017

In re GRACE P. et al., Persons Coming Under the Juvenile Court Law.
v.
M.P. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

         APPEAL from an order of the Superior Court of Los Angeles County, No. DK00969 Robert Draper, Judge. Reversed and remanded with directions.

          Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant Father M.P.

          Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Mother L.R.

          Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

          GOSWAMI, J. [*]

         INTRODUCTION

         Father and Mother appeal from the juvenile court's order terminating parental rights to six-year-old daughter, Grace, five-year-old son, Marco, and three-year-old son, Michael, pursuant to Welfare and Institutions Code[1] section 366.26. Father argues that the court erred in finding the beneficial parent-child relationship exception to termination did not apply and in denying him a contested hearing on that issue. Mother did not request a hearing to assess her relationship with the children and does not have an independent basis for preventing termination of her parental rights. Mother adopts Father's arguments on appeal, asserting that the court erred in denying Father a contested hearing.

         In a matter of first impression, we reverse because the juvenile court abused its discretion in denying Father a contested selection and implementation hearing under section 366.26. When, as here, a parent has consistently and regularly visited his or her children and at the selection and implementation hearing, offers testimony regarding the quality of their parent-child relationship and possible resulting detriment that would be caused by its termination, a juvenile court abuses its discretion if it denies a contested hearing on the beneficial parent-child relationship exception. We reverse and remand for the juvenile court to conduct the contested hearing and determine, in the context of all of the evidence before it, whether a beneficial parent-child relationship exists and prevents the termination of parental rights pursuant to section 366.26(c)(1)(B)(i).

         FACTS AND PROCEDURAL BACKGROUND

         In September 2013, the court granted the Department of Children and Family Services's (DCFS) request to detain Grace and Marco after concluding they were at high risk of abuse due to the parents' ongoing domestic violence, Father's abuse of marijuana, their exposure to Father's drugs, and Father's gang-related activities (Father is a member of the Mara Salvatrucha gang). Because Mother continued to associate with Father, the court detained Michael in February 2014, shortly after his birth. In April 2014, the children in this case were adjudged dependents of the juvenile court as a result of Father and Mother's domestic violence and Father's abuse of marijuana.

         Upon detention, DCFS assessed that the two older children had serious mental health, emotional, and developmental issues. The eldest, Grace, was with her parents for the first two years and 11 months of her life. All three children were placed in the same foster home and were enrolled in therapy and services to address their mental health, behavioral, and developmental needs. Over the course of this nearly three-year long dependency case, the children's issues were largely corrected via participation in services and the nurturing environment created by the foster family. Unfortunately, the children never reunited with their parents.

         Throughout the dependency case, Father was in and out of jail as a result of his gang activities. Although he completed a substance abuse program, he did not complete the court-ordered domestic violence counseling or drug testing. His weekly visitation with all three children remained monitored throughout the case, but was consistent. Early on, the visits were three hours per week. The foster parent, who monitored the visits, repeatedly reported that Father was always on time, interacted well with the three children and that he was attuned to their needs. The foster parent reported to DCFS that Father dedicated himself to all three children during the visits and the children were bonded with him. During visitation, he played with them, fed them, and changed Michael's diapers. Father also maintained daily and, then later, weekly phone contact with the children and the children stated that they missed their parents.

         At the section 366.26 hearing, Father's counsel requested a contested section 366.26 hearing to determine the applicability of the beneficial parent-child relationship exception to termination of parental rights.[2] Counsel asserted that Father has consistently and regularly visited all three children, those visits were positive, he actively engaged each child during visits, and he has been attuned to their individual needs. Counsel stated that Father

         “would testify that during his regular visits with the kids, he talks to them about school. He has on occasion redirected them with regards to behavioral issues. He brings food for the children. He also does play with them. He tells them he loves them and they do articulate that they love him as well and that the children call him papa and that they do not call anyone else papa, so he does believe that the parent-child exception applies. The children do perceive him in a parental role, and he has demonstrated parental capacity during these visits. He also believes that Grace would testify ...


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