Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK32950. Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), we are asked by the father of a dependent minor child to find that the juvenile court erred when it determined there is no compelling reason to justify a finding that termination of parental rights would be detrimental to the child. Our review of the record convinces us there was no such error. Therefore the order terminating parental rights will be affirmed.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. Proceedings from 1998 through 2000
The subject minor child is Christina M. (Christina). Born in June 1995, she was two years old when the Los Angeles County Department of Children and Family Services (the Department) filed a section 300 petition on her behalf in March 1998. The sustained petition alleges that Christina was physically abused by the boyfriend of Christina’s mother, Diane C. (Mother), that Mother was unable to protect the minor because she herself was being physically abused by the boyfriend, and that the minor was periodically exposed to violent confrontations between Mother and the boyfriend, all of which placed Christina at risk of harm. The physical abuse of Christina consisted of the boyfriend hitting the minor on her buttocks and thigh and leaving bruises. Christina’s father, Phillip M., the appellant in this appeal (Father), was incarcerated in a California prison at that time, having been convicted on two counts of attempted murder. His incarceration began two weeks before Christina was born.
Christian was detained by the juvenile court and placed with her maternal grandmother (MGM). The Department noted in one of its reports that the minor was already bonded with the MGM. Father appeared at the pretrial resolution conference held in April 1998. The court ordered that Christina’s paternal grandparents (PGPs) would have alternate weekend visits with the minor from Friday afternoons to Monday mornings and during the visits, the paternal grandparents could transport the minor to San Luis Obispo to visit Father at his place of incarceration. At the adjudication/ disposition hearing in May 1998, Christina was declared a dependent child, custody was taken from the parents, and Christina was placed in the care of the MGM.
The Department’s report for the six-month review hearing for Christina shows that Father’s earliest release date was August 2005. Father had been having written contact with the Department on a monthly basis. He told the social worker he would miss the six-month review hearing because he was enrolled in a 15-week parenting class, was on a waiting list for computer training, and was recently employed as a teacher’s assistant, and leaving prison to come to court would mean he would have to start all over again and that would be hard to do in prison. Christina was visiting the paternal grandmother (PGM) on alternate weekends and the PGM took the minor to visit Father in October 1998. The PGM reported the visit went well.
By the time of the 12-month review, which began in May 1999 and was continued to June and August of that year, Father had completed a parenting class (in December 1998). He appeared for the May and August hearings. There had been no more contacts between him and Christina. The Department recommended a permanent plan of long term foster care with the MGM. At the August 1999 12-month review hearing, Father agreed to the minor remaining with her MGM, and to setting the case for a section 366.26 hearing. Family reunification services were terminated and the court ordered that if Christina needed to be replaced (because the MGM indicated she was not sure she could continue to care for Christina), the Department should consider the paternal grandparents (PGPs) as possible caretakers.
A section 366.26 hearing was set for December 22, 1999. The Department’s report states the PGM was taking Christina to visit Father approximately every three months. The MGM had changed her mind and was willing to be a legal guardian for Christina. The Department reported she had been meeting Christina’s needs since the minor was placed with her, the minor had been living in the MGM’s home all or most of her life, and the minor was attached to the various adults and children (relatives of the MGM) who live in the MGM’s home. Letters of Guardianship were issued to the MGM and the step-maternal grandfather (together, maternal grandparents [MGPs]) at the December 22, 1999 section 366.26 hearing. The section 366.26 order states parental rights would not be terminated because it would be detrimental to Christina because the parents had maintained regular contact with Christina and the minor would benefit from continuing the relationship. Father was given monitored visits.
The Department’s report for the February 24, 2000 hearing to review the permanent plan of legal guardianship for Christina stated that the legal guardians were providing her with a loving, nurturing home environment and they indicated they were amenable to jurisdiction over Christina being terminated. Christina’s PGM was still taking her to visit Father every three months. The court ordered Christina would remain a dependent of the court and the matter was continued to April 10, 2000 for another review of the permanent plan. At the April 10, 2000 hearing jurisdiction over Christina was not terminated, and a subsequent permanent plan review hearing was set for October 5, 2000. According to the Department’s report for the October hearing, Christina continued to meet her developmental milestones, she had begun kindergarten, interacted well with other children, was healthy and appeared to be happy. The MGPs/legal guardians were found to be providing her with a stable, nurturing home, and had requested that jurisdiction be terminated because they did not believe assistance from the court or the Department was necessary any longer. The Department recommended termination of jurisdiction. Father wrote a letter to the court asking to be present for the October review hearing, and stating that he disagreed with the Department’s recommendation. At the hearing, the court noted the letter and continued the matter to November 2, 2000 so that Father could be brought to court; however Father did not appear at the November 2 hearing. The court terminated jurisdiction over Christina. She was five years old at that time.
2. Proceedings from 2006 to the Present
On March 7, 2006, when Christina was ten years old, two section 388 petitions were filed, one by her PGM and one by Father. The PGM’s petition asked that the court continue, and enforce, the order it made in April 1998 whereby the paternal grandparents (PGP’s) were given alternate weekend visits with Christina, and further requested that the PGM be permitted to be part of Christina’s counseling “in order to help any concerns she may have.” The PGM stated the legal guardian/MGM had been trying to stop the weekend visits, and Christina had begun acting out because the MGM was confusing Christina about Father and Father’s family. Father’s petition asked the court to modify its order terminating jurisdiction over Christina and its order placing Christina in a legal guardianship. Father asked that Christina be placed in his custody because he had been released from prison in August 2005. He also made several allegations concerning the MGM’s fitness to care for Christina. However later he acknowledged that he had no proof to substantiate the allegations.
On March 15, 2006, Christina’s MGM/legal guardian filed her own section 388 petition, seeking a change in the visitation order that had permitted Father to have visits with Christina at the prison. The MGM alleged that since Father was released from prison, Christina’s school grades were dropping, she had begun telling lies, she was keeping to herself, and she had begun counseling. Also on March 15, 2006, the court reinstated jurisdiction over Christina as a dependent child for receipt of a report from the Department, and granted a hearing on all three section 388 petitions, setting the hearing for April 13, 2006.
The Department social worker interviewed Christina, Christina’s guardians/MGPs, Father, the PGPs, and Christina’s adult paternal cousin. They were all found to be open and willing to discuss the case issues, the adults appeared to be equally concerned with Christina’s health and well being, and Christina appeared to have a positive emotional bond with both her MGPs and PGPs. The MGPs/legal guardians indicated they would like to adopt Christina.
Regarding Father’s petition to have custody of Christina, the minor indicated she was not comfortable being with Father at that point in time because she didn’t actually know him and so she didn’t like him. She stated Father “bugs” her when he kisses her cheek, hugs her or is near her. She added that after she gets to know him she might like him. She appeared hesitant about how she should respond to him. The social worker opined it would be in the minor’s best interest if Father gradually became a part of her life. Despite his petition stating he wished to have custody of Christina, Father told the social worker he was not in a position at that point in time to have custody. He stated he would eventually like to have custody, and was interested in establishing a positive relationship with the minor. He provided the social worker with certificates of completion of three different kinds of parenting classes that he took while he was incarcerated, finishing two in 1998 and one in 1999.
Regarding the legal guardians’ request for a modification of Christina’s visits with the PGPs on the weekends, Christina stated that while she enjoys her visits with them, she is uncomfortable when Father is there because he smothers her with attention and affection that she is not ready for. Also, her extracurricular activities, church activities and counseling all occurred on the weekends (Friday evenings and Sundays). The legal guardians wanted to change her visits with the PGPs to alternating Saturdays. As noted, the legal guardians also indicated they were interested in adopting the minor. As for the child’s grades, she had always maintained “on average A’s and B’s on her report card” but she had two D’s on the report card she received in April 2006. The MGM was not sure if the change was due to Christina growing older or to Father being around. The legal guardians indicated they have no opposition to Father and/or the PGPs participating in the counseling if the therapist felt it necessary.
As for the PGPs’ petition to enforce the alternating weekend visits and to participate in Christiana’s counseling, the social worker noted that such visitation plan, which was ordered by the court prior to the MGPs being made the guardians, was not put into the guardianship order and so such visitation has been at the guardians’ discretion. While the alternating weekend visits were fairly regular prior to Father’s release from prison in August 2005, they became less regular because Christina and the guardians were not entirely comfortable with Father being at the PGPs’ home during the visits.
The social worker recommended that Christina have individual counseling and it be conjoint with Father at the therapist’s discretion, and further recommended that Christina continue to have weekend overnight visits with the parental grandparents at least once a month provided that Father was not present during the visits. It was also recommended that Father have monitored visits with a Department approved monitor, and that he attend individual counseling to address case issues, and conjoint counseling at the minor’s therapist’s discretion. Also recommended was a reinstatement of jurisdiction over Christina and a section 366.26 hearing regarding adoption by the legal guardians.
Father appeared at the April 13, 2006 hearing on the three section 388 petitions. Jurisdiction over Christina was reinstated. Father was given weekly visits with the minor to be monitored by a Department approved monitor at a Department office. The PGPs were given weekend overnight visits once a month, and Father was ordered to not be present during such visits.
The case was continued to May and again to June 2006 for a contested progress hearing on the three section 388 petitions. A Department report for the progress hearing states Christina had raised her grades and she was attending individual therapy. Father delivered teen magazines to the guardians’ home for Christina and gave them to the guardians, but he had not visited Christina. He told the social worker he was speaking with the minor regularly on the phone. The social worker informed Father that he needed to arrange visits with Christina through the social worker.
Father appeared at the June 6, 2006 contested progress hearing. The court requested a supplemental report which would contain a report from Christina’s therapist regarding the advisability of conjoint therapy for all parties and recommendations as to visits for Father and the PGPs. The progress hearing was continued to June 27. The therapist’s report states that at the time of the minor’s intake session, she “presented with symptoms including poor grades, anger, depressed mood, tearfulness and isolation [and she] reported feelings of distress beginning when father was released from prison in August 2005.” The therapist stated she was concerned about the minor’s level of discomfort regarding visitation with Father, and she recommended that the minor’s “feelings of distress and apprehension are strongly taken into consideration when determining visitation rights with her father.” The social worker noted in her supplemental report that each time Christina comes for her monitored visits with Father, she states she does not really want to visit but will give it a try, and most of the minor’s conversation during the visits concern the various card games that Father and she play during the visits. Christina does not initiate conversations with Father, but Father “appears to be making appropriate attempts to allow Christina to express herself.” The social worker opined that it does not appear Christina looks forward to the visits but rather appears to just be “ ‘going through the motions.’ ” Although the therapist’s report did not address visits with the PGPs, the MGM and Christina reported that the minor’s overnight visits with them are positive and the minor enjoys them, and Father is not present during the visits.
The June 2006 hearing was continued to August 3 for a contest on the respective section 388 motions. The section 366.26 hearing was also set for that day. The Department’s report for the section 366.26 hearing states an adoption home study on the MGPs/legal guardians had begun, and the social worker opined it was highly likely the minor would be adopted by them. The report states they have had a positive emotional bond with Christina since she was born, and they stated they wanted to give her a stable, loving home. Father was reported to have visited the minor one to three times a month since August 2005. Christina still appeared to have reservations about seeing him, she was uncomfortable during her visits with him, and she spoke very little, letting Father carry the conversation, which was still generally about whatever board game they played. Their visits were monitored.
Father was present on August 3 for the section 388 motion and section 366.26 hearings. The attorneys on the case stated that the several section 388 motions had been worked out and the motions were dismissed without prejudice or withdrawn by the parties. The section 366.26 hearing was continued to November 2, 2006, and the Department was ordered to obtain a letter from Christina’s therapist and report on the status of the conjoint counseling that Christina had begun with Father. Father did not appear for the November 2, hearing. His attorney stated Father reported he was extremely ill. The section 366.26 hearing was put over to February 1, 2007.
Thereafter, several reports were submitted to the court. A December 28, 2006 report from the Department states Christina is comfortable in her legal guardians’/MGPs’ home and was doing well there and in school, and the caregivers are attentive to her needs and ensure she attends her therapy regularly. The minor’s therapist’s November 28, 2006 progress report states the minor was being seen for an hour each week, Father began participating in the sessions on September 7, 2006, and his schedule is to attend them every other week. Although Christina had not been able to share her feelings with Father, she reported to the therapist that she feels annoyed and angry towards Father at times and at other times feels frustrated and afraid around him.
A supplemental report from the Department states Christina informed the social worker that she did not want to visit with Father any more. Although the minor stated she did not think that Father would hurt her, she stated he looks scary. She stated she rarely speaks to him during their visits and she is hurt because he spent most of her life in prison. She acknowledged expressing these feelings with her therapist but not with Father. The MGM also reported that Christina does not wish to visit with Father anymore, and sometimes becomes upset and cries when she has to go to their visits. The social worker opined that although Father has maintained contact with Christina and shown a genuine interest in her, the adoption process should proceed because during the time the MGPs/legal guardians have cared for her, she has gained the nurturing, love and stability she needs to develop into a well rounded person. An additional report from the Department adds that Christina has a positive emotional bond with the legal guardians, who provide her with an environment free from physical and emotional harm, and if a relationship between Father and Christina does not materialize, it will not be due to termination of Father’s parental rights but rather because the minor resists building a relationship with him. The MGPs reported they would continue to support visits between Father and Christina, and between the PGPs and Christina, so long as such visits are in the minor’s best interest.
Father was visiting Christina on Sundays for an hour, and she felt most comfortable having a monitor present. The therapist reported that whereas she had seen progress made between Christina and Father at the end of 2006, Father had become inconsistent in his attendance at conjoint therapy and no further progress had been made. The therapist added that whereas Father seems sincere in wanting to build a relationship with the minor, his not attending the therapy sessions sends a different message to Christina. The therapist opined that although the minor had expressed a desire to have no further contact with Father, there is a small part of the child that does want a relationship with him but because the minor is so angry with Father she does not understand that.
The section 366.26 hearing was continued several times and finally commenced on April 23, 2007. By that time Father had resumed weekly conjoint therapy with Christina, and he continued to visit her for an hour on Sundays; however he had missed two back-to-back conjoint therapy sessions and the sessions had terminated on February 22, 2007. The minor’s individual therapy had also terminated because she had met her treatment goals. On March 15, 2007, the court ordered that conjoint therapy continue. The MGM reported that although the weekly visits between Christina and Father continued, the minor remained distant from him and only continued to visit with him because the visits were court ordered.
At the April 23, 2007 hearing, Father did not appear. His attorney indicated it was her understanding that Father was home with his youngest child because the child was sick and the mother of the child was at the doctor with other children who were also sick. The attorney requested a continuance. The other parties objected. The request was denied. The PGM testified on behalf of Father. She stated that she took Christina to visit Father every three to four months when he was incarcerated, and while at first the minor would shy away from Father and cry, later they became close like father and daughter and they would play games and cards, play with toys, and Father would read to Christina. There was never a time when the PGM had to end a visit because Christina was uncomfortable. Since March 2006 she had not been present at the visits between Father and Christina, although in the six months before the April 23, 2007 hearing, she was able to see Father and Christina together a few times and she observed the two of them “play[ing] back and forth with words [and gestures].” Christina has told her twice that she does not want to be adopted, and the second time the minor made that statement was approximately two to three months before the April 23, 2007 hearing. Asked what specifically the minor said, the PGM stated Christina told her she does not want to be adopted and she loves Father. The PGM added that Christina cried when she said that. Christina has never told her that she does not want to visit with Father, but Christina did tell her that she is afraid that if she is adopted she will not be able to visit with the PGM. The PGM stated that whereas there was a time when Christina told her she did not like Father because he was loud, lately the visits were more like they were when the PGM “used to take her to visit him.” She stated Christina calls Father “Daddy.” She acknowledged that Father was not present in court.
In making its section 366.26 decision, the court found by clear and convincing evidence that Christina is adoptable and that there is no parent-child relationship between Father and the minor and Father has never exercised a parental role in her life. Parental rights were terminated. Father filed a timely appeal from April 23 order terminating his parental rights.
DISCUSSION
Adoption is the Legislature’s first choice for a permanent plan for a dependent child because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the child continued to be removed from the custody of the parents and reunification services were terminated “shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the . . . circumstances [set out in subdivision (c) (1) (A) through (F) of section 366.26].” It is a parent’s burden to prove that one or more of the (c)(1) exceptions to termination of parental rights applies to his or her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When a parent claims one or more of the exceptions in subdivision (c)(1), the claim must be examined in light of the Legislature’s preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
In reviewing a trial court’s determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The Jasmine D. court observed that “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’ . . . ” ’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ [Citation.] That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference. [Citation.]” (Ibid.)
Here, Father contends the trial court erred when it did not find a subdivision (c)(1)(A) “parental relationship” exception to termination of his parental rights. That exception applies 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)(A).) To establish the applicability of that exception, a parent must show more than “ ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parental relationship exception to termination of parental rights has been interpreted to mean 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It has been noted, however, that the evidence of a child’s relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
Applying the Andrea R. and Autumn H. analyses of the parental relationship exception to termination of parental rights, it is clear to this court that there was no abuse of discretion when the trial court determined the exception does not apply to Father’s relationship with Christina. Nothing in the Department’s reports or Christina’s therapist’s reports describes the type of relationship between Father and Christina that is necessary to meet the parental relationship exception. The reports all indicate that after Father was released from prison, the minor did not want to have contact with him and only appeared at their visits because the court had ordered her to do so. The reports also show that she had little interaction with Father during the visits. Although the PGM testified that she has observed Christina and Father having pleasant times together and Christina told her on two occasions that she does not want to be adopted and she loves Father, none of the many reports submitted to the court, including both the Department’s reports and the reports from Christina’s therapist, even hint that Christina has such feelings. It was up to the trial court to determine the facts of the case, using all of the information available to the court. (In re Autumn H., supra, 27 Cal.App.4th at p. 575-576.)
DISPOSITION
The order terminating Father’s parental rights is affirmed.
We Concur: KLEIN, P. J., KITCHING, J.