Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. J207375 A. Rex Victor, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Nicole A. Williams, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
All statutory references are to the Welfare and Institutions Code.
Misty E., mother, and Richard R., father, appeal separately from the dependency court’s order terminating their parental rights and approving a permanent plan of adoption for their son, Brent R. Father challenges the termination of reunification services and the setting of the section 366.26 hearing. Mother contends the court erred when it determined the parental bond exception (§ 366.26, subd. (c)(1)(B)) did not apply.
As of January 1, 2008, this code section was renumbered from section 366.26, subd. (c)(1)(A).
We reject the parents’ appeals and affirm the trial court’s rulings.
We recognize that some authority holds that father’s appeal should be treated as a petition for writ of mandate. (Jennifer T. v. Superior Court (Jan. 24, 2008) 2008 WL 192994, pp. 3-4.)
2. Factual and Procedural Background
In April 2006, the San Bernardino County Department of Children’s Services (DCS) filed an original dependency petition concerning Brent R., born in June 2005, and alleging serious physical harm, failure to protect, and serious physical abuse. (§ 300, subds. (a), (b), & (e).) On March 26, 2006, the child had suffered a gunshot wound to his left leg, resulting in a fractured femur. The parents first denied knowing any reason why there would be a shooting but father later admitted someone may have shot at him. Brent had previously sustained head and facial injuries from a falling object and had undergone surgery when he ingested a coin. Father had a criminal history, including gang-related activity. Mother was 16 years old. Father was 18 years old.
Both parents were arrested before the detention hearing on April 4, 2006. The court ordered Brent detained by DCS and for DCS to provide reunification services. Visitation was temporarily not permitted because Brent could only be transported by ambulance.
The jurisdiction and disposition report recommended both parents receive reunification services. The parents were attending the 10th and 11th grades of high school in Barstow and spending alternate weeks living with the maternal and paternal grandparents. Brent’s injuries were somewhat permanent because the bullet was too near the bone to be removed. It was generally believed father may have accidentally discharged a weapon, causing the injury. Parents were finally able to visit Brent on April 21, 2006. DCS provided parents with services, including transportation, anger management and parenting skills classes, and counseling.
In May 2006, DCS filed another report recommending the parents receive six months of services. Brent was recovering well. Mother and father were living mostly with paternal relatives. Father was working for the paternal great-uncle’s concrete company. Father had been arrested for driving a stolen vehicle but exonerated on a gang-related murder charge. Father was attending anger management classes but he had not supplied proof he was attending parenting class. Neither parent was attending high school.
In November 2006, the DCS six-month status review report recommended continuing reunification services and Brent’s out-of-home placement. Brent was experiencing high lead levels in his blood. Mother had visited consistently, missing only one visit. Mother had completed a parenting class but she had not attended anger management classes or received general counseling. She was working at McDonald’s and often could not be contacted by the social worker. The parents’ relationship was unstable and mother was living alternately with paternal and maternal relatives. The weekly two-hour visitation was attended by mother and all the grandparents. Meanwhile, father had been arrested in September 2006 and was incarcerated on a weapon’s charge. Father had not completed an anger management course or individual counseling. Father acknowledged he should end his gang involvement. But mother denied any responsibility for the shooting.
At the six-month review hearing in November 2006, the court ordered mother’s visitation to continue and father to have weekly visitation after his release.
In May 2007, the DCS 12-month status review report recommended mother’s services be terminated and adoption ordered as the permanent plan. Father was incarcerated and not in contact with DCS. He had not complied with his case plan. Mother had moved to Bakersfield and failed to complete any of her classes or make progress on her case plan, including participating consistently in visitation. Brent’s medical problems—high lead levels in his blood, lack of balance, and pain—continued to be manifested. Brent was strongly bonded to his foster parents.
At the contested 12-month review hearing in June 2007, the dependency court found by clear and convincing evidence that DCS had made reasonable efforts to provide services but parents had failed to participate regularly and make substantial progress in their court-ordered treatment plan. There was not a substantial probability that Brent could be returned to either parent within the statutory time frame. The court ordered reunification services terminated and set a section 366.26 hearing.
In October 2007, DCS recommended parental rights be terminated and adoption be selected as the permanent plan. Mother had continued to have sporadic weekly visits. Brent cried when visiting with mother and treated his foster parents as his parents. Father had been released from prison in September 2007 and had two visits. The parents’ visits generally caused distress to Brent.
Brent was adoptable and his foster parents wanted to adopt him. Their home was certified for medically-fragile children. The foster parents understood Brent’s condition and were trained in providing care for him.
At the section 366.26 hearing, mother testified that she had trouble visiting consistently with Brent because of transportation problems but that Brent would reach out to her and cry when she left.
The court found there was insufficient evidence of a parental bond. The court found by clear and convincing evidence that Brent was likely to be adopted. It terminated parental rights and selected adoption as the permanent plan.
3. Termination of Reunification Services
Father protests that DCS did not make reasonable efforts to offer him reunification services when he was incarcerated, citing section 361.5 and In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402: “If a parent cannot avail himself or herself of reunification services because of incarceration, it is a fait accompli that the parent will fail to comply with the service plan. That is what occurred here. While ‘use a gun, go to prison’ may well be an appropriate legal maxim, ‘go to prison, lose your child’ is not.”
The record shows that father was incarcerated for a year in Tehachapi and Folsom. Brent, of course, was detained in the Barstow area. From the date of his arrest in September 2006 until his incarceration in September 2007, father did not contact the social worker—even though she made efforts to communicate with him and regularly sent him notices.
Based on the record, we conclude substantial evidence supports the trial court’s discretionary findings that reasonable services were offered. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598; In re N. S. (2002) 97 Cal.App.4th 167, 172, citing Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) The test is not whether the services were perfect but whether they were reasonable under the circumstances. (Katie V., supra, at pp. 598-599.)
Until the time of father’s arrest and incarceration, DCS was in contact with father, providing him with services and facilitating visitation. Father made some efforts at compliance but he also dropped out of school and continued to engage in criminal conduct. After incarceration, due to Brent’s young age and fragile medical condition and father’s distant location, visitation was not possible as it was in cases like In re Brittany S., supra, 17 Cal.App.4th at page 1407 and In re Monica C. (1995) 31 Cal.App.4th 296, 302-303.
Furthermore, unlike the more persistent parents in In re Monica C., supra, and In re Maria S. (2000) 82 Cal.App.4th 1032, 1035-1036, after incarceration, father ceased communicating with DCS. Even if it had been possible to arrange visitation with Brent or to provide services to father in prison, the social worker could not do so if he never responded to her letters or notices. The trial court did not abuse its discretion in finding that reasonable reunification services were offered to father.
4. Beneficial Parental Relationship Exception
Mother, joined by father, argues the dependency court failed properly to apply the exception to termination of parental rights that exist when “The court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance[]: (i) The 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).) Again, we conduct a deferential review and look for substantial evidence to support the lower court’s ruling. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Brent lived with his mother for the first nine months of his life. For the next six months, mother maintained fairly regular visitation with him until she moved to Bakersfield. According to mother’s testimony, during that time, Brent called her “mommy,” reached out for her, and cried when she left. The record reflects that subsequently mother visited infrequently and did not make progress in her case plan, Brent became strongly attached to his foster parents.
Based on this record, mother cannot meet her burden to establish the exception. First, mother did not show she maintained regular visitation and contact. Instead, she moved herself from the county where Brent was placed and missed nine of her weekly visits in the seven months between March 2007 and September 2007. There was no showing that mother’s visits helped to develop “a significant, positive, emotional attachment.” (In re Autumn H, supra, 27 Cal.App.4th at p. 575.)
Nor was mother successful in showing Brent’s well-being would be better served by a relationship with mother than by a permanent adoptive home or that terminating the relationship would be detrimental. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Mother produced no evidence showing she had a relationship with Brent that was more than friendly or casual. Instead, the relationship seemed likely to prove detrimental to him. Mother did not regard his medical condition as sufficiently serious. Her visits sometimes were upsetting to him. In view of Brent’s youth, his fragile health, and his strong relationship with the foster parents who proposed to adopt him, the ongoing relationship with mother seemed to offer no potential benefit. (Angel B., supra, at p. 467.)
In the absence of regular visitation and contact and of any benefit to Brent, we affirm the trial court’s determination that the beneficial parental relationship exception does not apply.
5. Disposition
We affirm the findings and orders of the dependency court terminating reunification services and parental rights and approving a permanent plan of adoption.
We concur: Ramirez, P. J., Hollenhorst, J.