Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIJ109703, Becky Dugan, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant A.N.
Dabney D. Finch, under appointment by the Court of Appeal, for Defendant and Appellant L.B.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
RICHLI, J.
L.B. (the mother) and A.N. (the father) appeal from an order terminating parental rights to their four children. Their sole appellate contention is that the juvenile court erred by finding that the so-called “beneficial parental relationship” exception to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A)) did not apply. This “may be the most unsuccessfully litigated issue in the history of law . . . .” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413.) Although it can have merit in an appropriate case (e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-691), this is not such a case.
I
FACTUAL AND PROCEDURAL BACKGROUND
As of March 2005, the parents had three children together Amy N., then aged three; N.N., then aged two; and A.N., Jr., then aged one.
In a visit that month, social workers found that the family’s apartment was filthy, with an “overwhelming odor of cat urine and cat feces” as well as “trash and debris throughout . . . .” The children were dirty and smelly. There was very little food in the home, and the refrigerator did not work. “There were no wearable clothes, shoes, towels or toys noted.” A.N., Jr., had sores in and around his mouth. Both parents admitted using methamphetamine that morning. They later admitted to using methamphetamine regularly, about four times a month.
The children were detained, and the Department of Public Social Services (the Department) filed a dependency petition as to them.
The juvenile court found jurisdiction based on failure to protect. (Welf. & Inst. Code, § 300, subd. (b).) It ordered that the parents be provided with reunification services and warned them that reunification services would be provided for only six months.
While the dependency was pending, the mother gave birth to a fourth child, M.N. He was detained, and the Department filed a dependency petition as to him. Shortly afterward, he was placed together with the three older children.
In April 2006, at the six-month review hearing as to the three older children, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In May 2006, at a jurisdictional/dispositional hearing as to the youngest child, the juvenile court found jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling (id., subd. (j)). It denied reunification services. It set a section 366.26 hearing for the same date as the older children’s section 366.26 hearing.
In January 2007, at the section 366.26 hearing, the juvenile court found that the children were likely to be adopted and that none of the statutory exceptions to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)) applied. It therefore terminated parental rights.
II
THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
Both parents contend that the juvenile court erred by finding that the beneficial parental relationship exception did not apply.
A. Additional Factual and Procedural Background.
We limit our consideration to the evidence that was before the juvenile court at the section 366.26 hearing (see Welf. & Inst. Code, § 366.26, subd. (b)), which consisted of three specified social worker’s reports and the oral testimony of the parents.
In addition, the mother’s counsel showed the juvenile court some photos that had been taken during a visit with the children. These were not marked or introduced as exhibits, and no effort has been made to make them a part of the appellate record. We therefore do not consider them.
The parents had been visiting the children regularly. After May 2006, however, when reunification services as to the youngest child were terminated, they stopped.
In August 2006, all four children had been placed with the prospective adoptive parents. They had adjusted very well to the placement. The children seemed “happy and comfortable” with the prospective adoptive parents, and the prospective adoptive parents seemed “very calm, patient and loving” with them. There appeared to be a “reciprocal bond” on both sides.
In September 2006, the juvenile court ordered the Department to provide the parents with visitation weekly for the first month and biweekly thereafter.
According to a social worker’s report that was not introduced at the section 366.26 hearing, in August 2006, the father had called the social worker and requested visitation. The social worker had responded that, because reunification services had been terminated and the children were in the process of being adopted, the Department would not provide visitation.
At the next visit, the children recognized the parents and called them “mommy” and “daddy.” According to the social worker, “[t]he kids said they wanted to go home with mom and dad and did not want the visit to end.” N.N. cried and was “clinging” to the father. After the visit, the foster parents reported that the children were “acting out big time”; they were “regressing” and telling the foster parents, “[You] are not [our] mom and dad . . . .”
Out of the next six scheduled visits, however, the parents missed three.
The mother and the father always visited the children together. The father testified that, in the three months preceding the section 366.26 hearing, he had visited the children “[a]lmost every time I have been able to.” When asked how the visits went, he said, “Fine, more or less.” He would play with the children and talk to them. He believed the youngest child recognized him, “because he doesn’t want me to let him go. He starts crying when I put him down.” When visits ended, the children asked why they could not go with the parents.
The mother testified, “When they see me, we’re so happy. And then I play with them. . . . And . . . I’ll ask them how they are doing. And they like sitting on my lap. And we laugh and play, [I] kiss them on the cheek.” She would feed the baby and change his diapers; “ . . . I’ll make him laugh. He smiles.” When the visits ended, the three older children would “get sad because they want to go home.”
The juvenile court found that the parents had not visited regularly — “you continue to miss half of your visits . . . .” It added, “ . . . I know you love your kids, but I cannot find a reason not to release them for adoption.”
B. Analysis.
The father testified that, “[i]f the Court d[id] not return [his] children to [him],” he would prefer that they be adopted, rather than placed in a legal guardianship or in foster care. The Department argues that he thereby waived his present contention. His counsel’s questioning, however, seems to have led him to use the words “not returning the children to him” somewhat loosely to refer to “terminating parental rights.” Moreover, if the court did refuse to terminate parental rights, the father would at least have the possibility of regaining custody by means of a petition under Welfare and Institutions Code section 388. The bulk of the father’s testimony was obviously intended to show that termination of parental rights would be detrimental to the children. We conclude that he did not waive his present claim that parental rights should not have been terminated.
The questioning by the father’s counsel went as follows:
We turn, then, to the merits.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to six statutory exceptions. (Id., subds. (c)(1)(A)-(c)(1)(F).) The only one relevant here is the beneficial parental relationship exception. (Id., subd. (c)(1)(A).) It applies when “[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Ibid.)
“We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because the parents had the burden of proof, we must affirm unless there was “indisputable evidence [in their favor] -- evidence no reasonable trier of fact could have rejected . . . .” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Here, the trial court found that the parents had not maintained regular visitation. Surprisingly, the Department concedes that this finding was erroneous. This concession sells the juvenile court down the river; we refuse to accept it. Actually, the juvenile court’s finding is manifestly supported by the record: Between May and mid-September 2006, the parents did not visit at all; between mid-September 2006 and November 2006, they missed three out of seven scheduled visits.
The parents respond with several different arguments. First, they point out that, up until May 2006, they had been visiting regularly. No matter how regular their visitation had been before, however, letting more than six months go by with only four visits simply is not “maintain[ing]” regular visitation.
Second, they list their reasons for missing the three visits. The first time, they simply failed to show up; the father phoned afterwards, claiming to have had a dentist appointment. At that time, the social worker told him that he would need to call and confirm all future visits 24 hours in advance. The next time, the father failed to confirm in advance, as instructed, and the visit was canceled. He called on the day of the visit and asked to reschedule; apparently, however, he gave no reason for failing to confirm or for failing to be available on the date set. Similarly, the third time, the father failed to confirm in advance, and the visit was canceled. He claimed he had lost the social worker’s phone number! Moreover, rather than take responsibility, he blamed the social worker “for not having a back up plan for him in case he lost the phone number”! The juvenile court could reasonably find that the parents had excuses for missing visits, but not reasons.
Third, they argue that the Department prevented them from visiting. Indeed, they argue that, as a result, the Department is “estopped” to assert that they did not visit regularly. They waived any estoppel argument by failing to raise it below. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Moreover, it lacks support in the evidence; precisely because the parents did not raise this argument below, they also did not introduce into evidence at the section 366.26 hearing the particular social worker’s report on which they now seek to rely. (See fn. 2, ante.)
In any event, the Department prevented the parents from visiting for a month and a half, at most. If the crucial social worker’s report had been introduced, it would have shown that, some time in August 2006, the father phoned the social worker and requested visitation; the social worker responded that, because services had been terminated and the children were in the process of being adopted, the Department would not provide visitation. Another report, which was in evidence, showed that on September 19, 2006, the juvenile court ordered the Department to set up visits; a visit occurred almost immediately, on September 21, 2006.
Certainly the social worker did blow it. Even though reunification services had been terminated, the parents were still entitled to visitation. (Welf. & Inst. Code, §§ 366.21, subd. (h), 366.22, subd. (a).) This, however, does not excuse their failure to visit between May and August 2006. It likewise does not excuse their missing three visits between September and November 2006. We also note that the father did not file any kind of motion concerning visitation; he simply brought it up at the next regularly scheduled review hearing. Presumably, if he had brought it up earlier, he could have had visitation earlier.
Incidentally, both parents distort the record regarding this issue. The mother states: “In May, after receiving notice that services had been terminated, apparently believing this meant her visitation rights had also been terminated, mother stopped visiting. Then, in August, the Department told father they no longer had visitation rights.” (Italics added.) There is no evidentiary support for the italicized portion. Obviously, the father did not believe his visitation rights had been terminated; in August, he phoned the social worker and requested visitation. Moreover, services as to the older three children had been terminated in April; it was not until May, when the juvenile court also terminated services as to the youngest child, that the parents stopped visiting. In the social worker’s opinion, they stopped because they “understood that [the Department] was seeking an adoptive home for all of their children . . . .” We repeat that the parents had the burden of proof. At a minimum, the juvenile court would have been entitled to find (if the issue had even been called to its attention) that they stopped visiting deliberately, not out of ignorance concerning their visitation rights.
Similarly, the father states: “[T]he social worker acknowledged that the parents ‘consistently’ visited the children until May 2006, at which time the social worker informed the parents that since services had been terminated, ‘[the Department] would not be providing visitation services for them.’” (Italics added.) There is no evidentiary support for the italicized words. The social worker did not make this statement until August 2006. The father had absolutely no excuse for his failure to visit between May and August 2006.
Certainly one may speculate that, if the parents had requested visitation in May 2006, the social worker might have told them the same thing. In that event, however, the parents could have gone to the juvenile court and demanded visitation that much sooner. We can never know what the outcome actually would have been, because they did not request visitation.
Thus, we could sustain the trial court’s rejection of the beneficial parental relationship exception based solely on the parents’ failure to maintain regular visitation. However, we also note (if only out of an excess of caution) that the juvenile court could also properly find that the children would not benefit from continuing the relationship.
“We have interpreted the phrase ‘benefit from continuing the relationship’ to refer to a ‘parent-child’ relationship that ‘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 other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ [Citations.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There was no “indisputable evidence” that the children would be “greatly harmed” by termination of parental rights. The parents’ testimony that the children were happy to see them and that they played with the children (and diapered the baby) showed, at most, “loving contact” and “pleasant visits”; it fell short of showing that the parents continued to occupy a parental role in the children’s lives. When the parents failed to show up for visits, it does not appear that the children suffered. In particular, it does not appear that between May and September 2006, the children missed them at all.
Admittedly, when visits first resumed, the children did say they wanted to go home with the parents, and in the wake of that first visit, they were “acting out big time.” Apparently, however, during the visit, the parents had been discussing reunification with them. Before the next visit, the parents were cautioned not to do so. Thereafter, the children’s negative behavior vanished. The children were happy, comfortable, and thriving with the prospective adoptive parents. Thus, it would appear that the children would affirmatively benefit from being adopted and achieving permanence.
In his reply brief, the father asserts that “the children’s relationship with their prospective adoptive parents is irrelevant to the inquiry of whether or not the beneficial parental relationship exception applies.” That is incorrect. (See, e.g., In re L.Y.L., supra, 101 Cal.App.4th at p. 954 [noting that child was bonded with foster parents and had asked them to call her “daughter”]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 425 [noting that child had “adjusted well to his foster family, who are willing to adopt him”].) Precisely because the application of the exception turns on a balancing test, the juvenile court was required to consider -- among other things -- the likely benefit to the children from being adopted.
We therefore conclude that the juvenile court did not err by finding that the beneficial parental relationship exception did not apply.
III
DISPOSITION
The order appealed from is affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.
“Q. Now, you understand what this hearing is for?
“A. Yes.
“Q. Is to terminate your parental rights?
“A. Yes.
“Q. I take it that’s not what you want to happen?
“A. No.
“Q. If the Court does not return your children to you, would you prefer that a plan of just foster care or legal guardianship be better for your children, instead of adoption, just keeping them in foster care?
“A. No, that wouldn’t -- That’s not what I really want.” (Italics added.)