Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK56424, Terry Troung, Juvenile Court Referee pursuant to Cal. Const., art. VI, § 21.
Maureen L. Keaney, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Liza Samuelson, Senior Deputy County Counsel, for Respondent.
MOSK, J.
Ramon C. (father) appeals an order of the juvenile court terminating his parental rights to his son, Gustavo C. (child). Father challenges the sufficiency of the evidence supporting the juvenile court’s order, arguing that the juvenile court should have applied the parental relationship exception set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). We conclude that father failed to carry his burden to establish that the exception applied. We therefore affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
A toxicology screen indicated that child was born with cocaine in his system. Shortly thereafter, the Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition pursuant to section 300 alleging that child’s mother, Sonia G. (mother), had a history of substance abuse and was a periodic user of cocaine. Mother admitted to using cocaine during her pregnancy with child.
Three of child’s half-siblings previously had been detained by DCFS and placed with their father, Luis R. Child’s siblings and their father are not involved in this appeal.
Father was incarcerated when child was born. Father was married to Lucia R. The detention hearing was held in October 2005. Father appeared in custody and was appointed counsel. The juvenile court ordered child detained and placed in shelter care. The juvenile court also found father to be child’s “quasi-presumed father,” and ordered reunification services for both parents. Father did not request and was not granted visitation.
Mother told DCFS that she became pregnant with child while she and father were having an affair, and that Lucia R. knew of the affair. When contacted, Lucia R. told DCFS that she and her brother-in-law (paternal uncle) would like to care for child. DCFS later concluded that the home was unsuitable for a variety of reasons.
Child was released from the hospital and placed in a foster home with Maria B. and Jose A. (foster parents) when child was three days old. Prior to the adjudication hearing, DCFS reported that father was incarcerated on a felony charge in Castaic, California and that the Immigration and Naturalization Service (actually Immigration and Customs Enforcement) had placed an immigration hold on him. According to mother, father was charged with selling drugs; father later informed DCFS that his crime was grand theft auto.
The adjudication hearing was held in November 2005. Father appeared in custody. Father waived his right to a trial on the petition. The juvenile court sustained the petition and declared child a dependent of the juvenile court. The juvenile court ordered family reunification services for both parents, and ordered father to complete a parenting class and drug counseling and to submit to random drug tests. Father was to have monitored visits when released from his incarceration.
A six-month review hearing was set for May 2006. Prior to the hearing, DCFS reported that mother had failed to comply with her case plan and had not visited child. Father had failed to enroll in a parenting class or drug counseling. Father told DCFS that he wanted to reunify with child, but had been unable to comply with his case plan because he had been “moved around the prison system.” A prison counselor informed DCFS that father did not qualify for drug counseling with drug testing because of the “INS” hold. A parenting class was available to father, however, and the prison counselor believed that father intended to enroll. Father had not visited child due to his incarceration; there is no indication in the record that father sought to arrange visitation. DCFS also reported that foster parents were providing adequate care and supervision and were providing for child’s needs. DCFS recommended that the juvenile court terminate reunification services for both parents and set the matter for a permanency planning hearing pursuant to section 366.26. Mother contested the recommendation, and the juvenile court set the matter for a contested hearing in June 2006.
Prior to the June 2006 hearing, DCFS reported that father had begun a parenting class in prison and had completed nine of the ten required sessions. Father still had not complied with the juvenile court’s orders for drug counseling and random drug testing, however, because he did not qualify for those programs due to his “INS” hold. A prison counselor had informed DCFS that father was scheduled for release in January 2007. DCFS reiterated its recommendation that the juvenile court terminate reunification services, and recommended that the permanent plan be adoption.
Father did not appear but was represented by counsel at the contested six-month review hearing. Counsel for child concurred in DCFS’s recommendation that reunification services for father be terminated, but requested that services be continued for mother. Counsel for father argued that reunification services should be continued for another six months because father had complied with the case plan to the extent that he was able, and because father might be released prior to January 2007. The juvenile court continued reunification services for mother. The juvenile court concluded, however, that father would likely remain incarcerated until after the 12-month review date, and would likely be detained or deported by the immigration authorities after his release from prison. The juvenile court noted that it would consider a section 388 petition once father was released, but found that father was not in compliance with his case plan and terminated his reunification services.
At a progress hearing in September 2006, counsel for father relayed father’s request that child be placed with his wife, Lucia R. The juvenile court granted DCFS discretion to place child with Lucia R., and granted Lucia R. monitored visits. Child remained placed with foster parents, however.
The 12-month review hearing was held in December 2006 and January 2007. DCFS reported that child was “happy and thriving” with foster parents. Father remained incarcerated; he had not contacted DCFS. DCFS recommended that reunification services be continued for mother. At the hearing, counsel for father requested and the juvenile court granted DCFS discretion to lengthen Lucia R.’s visits with child.
The 18-month review hearing was set for April 2007. Prior to the hearing, father informed DCFS that he had been released from prison and was residing with Lucia R. Father wanted to regain custody of child, and had completed a narcotics anonymous program, a conflict resolution program and a parenting class while incarcerated. DCFS had referred father for random drug testing, but he had not yet completed any drug tests. DCFS had also arranged two monitored visits for father with child which had “gone well.” Child “seem[ed] to be comfortable and . . . bonding well to” father. DCFS reported that child was “thriving in his current placement” with foster parents. DCFS recommended that the juvenile court terminate mother’s reunification services and set a permanency planning hearing pursuant to section 366.26.
Father appeared at the 18-month review hearing. Mother did not appear, but her attorney contested the adequacy of notice for the hearing and asked the juvenile court to set the matter for a contest. Counsel for father informed the juvenile court that father had enrolled for random drug testing and had visited child three times, and that father was considering filing a section 388 petition. The juvenile court set the matter for a contested hearing in May 2007.
Prior to the May hearing, DCFS reported that it had not yet received father’s criminal history. Father had submitted to one random drug test, which was negative. Father and Lucia R. had five successful monitored visits with child, but father had failed to attend the most recent scheduled visit “due to work.” Foster parents reported that father’s visits went “well,” and that father was “very nurturing and caring with” child. DCFS recommended that, if father fully complied with his random drug testing obligations, father have unmonitored visits with child. DCFS continued to recommend, however, that the juvenile court set a section 366.26 hearing to address a permanent plan for child.
Mother failed to appear at the May hearing without explanation. Father appeared and requested unmonitored visits. Counsel for father also stated that father would be filing a section 388 petition to obtain custody of child. Counsel for child joined in father’s request for unmonitored visits. The juvenile court found that, although father had made “satisfactory” progress and had “consistently and regularly contacted and visited with child,” he was not in compliance with his case plan. The juvenile court found that father “has not demonstrated the capacity and ability both to complete the objectives of [his] treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” The juvenile court terminated reunification services for mother and ordered unmonitored visits for father, with DCFS having discretion to permit overnight visits. The juvenile court identified the permanent plan for child as legal guardianship with foster parents, and set a section 366.26 hearing for September 2007.
Approximately two weeks after the May hearing, father tested positive for methamphetamine. DCFS filed a petition pursuant to section 385 to change father’s visitation from unmonitored to monitored. DCFS also noted that father’s criminal history indicated “a long criminal history of drug trafficking and possible use.” The juvenile court ordered father’s visits with child monitored until the next progress hearing in August 2007. Father failed to appear at that hearing, but he was represented by counsel. The juvenile court ordered that father’s visits were to be monitored, and ordered father to undergo random drug testing.
Prior to the section 366.26 hearing in September, DCFS reported that father had maintained consistent weekly contact with child, and that the visits were going well. Father had not informed DCFS whether he had enrolled in a substance abuse program since testing positive for methamphetamine, nor had father petitioned the juvenile court to receive reunification services. DCFS reported that foster parents were “devoted caregivers” to whom child was “very bonded” and who were “eager to provide [child] with a permanent nurturing home through adoption.” DCFS recommended that the juvenile court find that child was likely to be adopted, terminate parents’ parental rights, and order DCFS to proceed with adoptive placement. At the September hearing, the juvenile court continued the matter to November so that DCFS could complete an adoption home study of foster parents.
Prior to the November hearing, DCFS reported that father continued to visit and had a “loving relationship” with child. Father, however, had tested positive for cocaine or methamphetamine six times in the preceding five months, and had failed to show for one other test. Father had attended two sessions of a drug counseling program. DCFS also reported that the adoption home study for foster parents had been approved, and that child remained “happy and bonded with his foster parents.” DCFS recommended adoption as the best plan for child. At father’s request, the section 366.26 hearing was continued to February 2008 for a contested hearing.
Prior to the February hearing, father filed a section 388 petition seeking to obtain unmonitored visits at father’s home, leading to placement of child with father. Father cited as changed circumstances his release from custody; his enrollment in drug and alcohol counseling programs; his regular visitation with child; and the reports from foster parents that father’s visits went well and that child was bonding with father. The juvenile court denied the petition without a hearing, concluding that the facts did not support the requested relief.
In late January, father was terminated from his drug counseling program because he failed to attend consistently. Father’s drug counselor stated that father “appears to have a problem with Alcohol and would benefit from attending substance abuse counseling.”
Father presented no evidence at the contested section 366.26 hearing. Father argued that the juvenile court should not terminate his parental rights “based on the exception that the child would suffer irreparable harm if parental rights were terminated” (presumably, section 366.26, subdivision (c)(1)(B)(i)). Father argued that he had visited child consistently since his release from prison, and that foster parents had given “glowing reports” regarding his visits with child. Father argued that legal guardianship was a more appropriate permanent plan than adoption because it would permit father and his wife, Lucia R., to maintain a relationship with child.
Counsel for child, however, favored termination of father’s parental rights. Counsel argued that child had lived with foster parents for 27 months—since he was three days old. Foster parents had been approved and were eager to adopt child. Father had never been child’s primary caregiver. Although father visited child frequently, all but one of his visits had been monitored. Father had tested positive for drugs as recently as four months prior to the hearing, and had been terminated from his drug counseling program only a few days prior to the hearing.
The juvenile court terminated both parents’ parental rights. With respect to father, the juvenile court concluded that, “[w]hile the father has visited the child, there is no evidence to show that the child would benefit from the continuing relationship with the father.” Father timely appealed the order terminating parental rights.
DISCUSSION
A. The Parental Relationship Exception and Standard of Review
Section 366.26 provides that the preferred disposition at a permanency planning hearing is to “[t]erminate the rights of the parent . . . and order that the child be placed for adoption . . . .” (§ 366.26, subd. (b)(1); see also San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885.) Because of this statutory preference, adoption should be ordered unless one of the exceptions specified in section 366.26 exists. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997; In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) One such exception is the parental relationship exception, which occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) To invoke the parental relationship exception, the parent bears the burden of proving both that visitation was regular and that the child would benefit from continuing the relationship. (In re Mary G. (2007) 151 Cal.App.4th 184, 207; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) Because the juvenile court found that father maintained regular visitation after his release from prison, only the second prong is at issue in this case.
To meet his or her burden under the second prong, a parent is required to establish 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) In evaluating the parent’s showing, the juvenile court must “balance[ ] 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.” (Ibid.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond[, including] [t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs . . . .” (Id. at pp. 575-576.) Accordingly, a parent “must show more than frequent and loving contact or pleasant visits. [Citation.]” (In re Mary G., supra, 151 Cal.App.4th at p. 207.) Rather, “[t]he parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (Ibid.)
We apply the substantial evidence test in reviewing father’s challenge to the sufficiency of the evidence supporting the juvenile court’s determination that the parental relationship exception does not apply. (In re Mary G., supra, 151 Cal.App.4th at p. 206; Autumn H., supra, 27 Cal.App.4th at p. 575.) “‘[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’” (In re Mary G., supra, 151 Cal.App.4th at p. 206 .) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
We are aware that some courts have applied an abuse of discretion standard in these circumstances. (E.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) However, “[t]he practical differences between the two standards of review are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We would conclude under either standard of review that the juvenile court did not err.
B. Substantial Evidence Supports the Juvenile Court’s Determination that the Parental Relationship Exception Did Not Apply
Father argues that the juvenile court erred because the evidence establishes that father was developing a significant relationship with child through his regular weekly visitation. Father’s monitored visits with child had “gone well.” Child’s foster mother reported to DCFS that father was “very nurturing and caring with the child”; that child “seem[ed] to be comfortable and bonding well to” father; and that child was also “having successful monitored weekly visits with” father’s wife, Lucia.
The evidence cited by father was insufficient to show that the benefits to child from a continued relationship with father outweighed the benefits to child from a stable and permanent adoptive home. As noted above, “pleasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Even “frequent and loving contact” is insufficient to establish the type of beneficial relationship contemplated by the statute. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Father was required to establish that “the parent-child bond is a ‘substantial, positive emotional attachment such that the child would be greatly harmed’ if parental rights were terminated.” (In re Helen W. (2007) 150 Cal.App.4th 71, 81; In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
The evidence showed that child had been placed with and cared for by foster parents since child was three days old, or more than two years. Child was “happy and bonded with his foster parents” and was otherwise “thriving in his current placement.” Foster parents were “happy” to have child in their home and eager to adopt him.
In contrast, child never lived with father and had no visitation with father until child was approximately 18 months old. When father visited child, his visits were two hours per week, monitored and in a public place. Father had only one unmonitored visit with child before he tested positive for methamphetamines and lost that privilege. Father never had child for an overnight visit. There is no evidence that father fed child or changed his diapers or otherwise provided for child’s needs. In the months preceding the section 366.26 hearing, father tested positive for drugs six times, missed one drug test, and was terminated from his drug counseling program because he failed to attend consistently. Father’s drug counselor told DCFS shortly before the section 366.26 hearing that father appeared to have a problem with alcohol. Father thus presented insufficient evidence that he had fulfilled a parental role in child’s life, and it appeared unlikely that father could do so in the near future. Although father’s visits with child were positive, this was insufficient to establish that child would suffer detriment if father’s parental rights were terminated. (See In re Helen W., supra, 150 Cal.App.4th at pp. 80-81 [frequent visits where mother “clearly loved her children” and fed and changed them were insufficient to establish parental relationship exception where children were young and had lived with foster mother most of their lives]; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1416-1418 [that parents moved into same apartment complex and had “frequent and loving” contact with children insufficient to establish parental relationship exception where children were young, had lived with caretaker since infancy and looked to caretaker as mother figure].)
Notwithstanding the evidence supporting father’s position, there is sufficient evidence to support the juvenile court’s determination that the parental relationship exception to termination of parental rights did not apply in this case. Under the circumstances, and the standard of review, legally we must affirm the juvenile court’s determination that the father failed to meet his burden under section 366.26, subdivision (c)(1)(B)(i).
DISPOSITION
The order is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.