Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK58079 of Los Angeles County, Jan G. Levine, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
EPSTEIN, P. J.
Bryan P. appeals from termination of his parental rights as to his son, Jacob C. He contends he was treated as a presumed father by the juvenile court and therefore should be accorded that status on appeal. Status as a presumed father is critical to Bryan’s argument that the order terminating his parental rights violated his right to due process, because there were neither findings of detriment nor unfitness as to him. Alternatively, he argues he was entitled to status as a nonoffending noncustodial parent whose rights could not be terminated without a finding of unfitness under Welfare and Institutions Code section 361.2. Bryan also argues the juvenile court erred by failing to exercise its discretion to determine whether placement of Jacob with paternal relatives was appropriate.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find no basis to infer that Bryan was treated as a presumed father by the juvenile court, a status for which he did not qualify. We also conclude he was not entitled to custody under section 361.2. We affirm the order terminating parental rights. Bryan lacks standing to challenge the juvenile court’s order placing Jacob in a foster home rather than with Sophie P. Alternatively, we find no error in that decision on its merits.
FACTUAL AND PROCEDURAL SUMMARY
The dependency case involving Bryan’s son, Jacob, was preceded by a dependency petition involving mother Betty C.’s older children. We explain that history to provide a context for the matter involving Jacob.
Mother’s older children are S. C. and Megan. Their father was mother’s husband, Luis; Mother and Luis had been married eight years as of February 2005. The Department of Children and Family Services (the Department) received a referral on February 11, 2005, alleging that S. C. and Megan had been neglected because they had been left unsupervised for extended periods and because mother had been seen using drugs while five months pregnant. Luis said that mother had a history of drug abuse; that she had left him alone to care for the children many times over the years; that she had an “on and off” relationship with a man named Bryan; and that Bryan used drugs and continued to call the house shared by mother and Luis in an effort to locate mother. Luis was not certain whether the unborn child mother was carrying at the time was his.
Mother admitted using methamphetamine during her pregnancy and was unsure who had fathered her unborn child. Mother said her previous boyfriend, Bryan, had lodged complaints against her and harassed her. She claimed an intent to file harassment and domestic violence suits against him. Mother agreed to leave the residence and enter an in-patient drug rehabilitation program. Luis was arrested for spousal abuse on February 13, 2005. When the social worker learned the children had been seen with mother and had not attended school, the children were detained.
The Department filed a petition on February 17, 2005, alleging that S.C. and Megan came within section 300, subdivisions (a) and (b) because they were at risk due to the domestic violence between mother and Luis and because of substance abuse by mother and Luis. The petition was amended to allege a history of domestic violence between mother and Bryan, and Bryan’s threats to kill mother. The amended petition also alleged sexual abuse of S.C. by Luis. Portions of the petition were sustained, and mother was ordered to participate in family reunification services.
Jacob was born in July 2005, with a positive toxicology screen for amphetamine. A petition was filed July 8, 2005 alleging that Jacob came within section 300, subdivisions (a), (b), (d), and (j). Luis was listed as the child’s alleged father and Bryan was not mentioned. At the detention hearing, the juvenile court granted a request by counsel for Luis for a paternity test, which excluded Luis as Jacob’s father. After Luis was excluded as the father of Jacob, mother told the court that Bryan was the father and that he was incarcerated at Wayside. Counsel was appointed for Bryan.
Bryan’s first court appearance was September 26, 2005. He told the court he was incarcerated at Wayside, serving a sentence of 3 years 4 months. Counsel for Bryan requested a paternity test. He also asked that Jacob be placed with Bryan’s mother, Sophie. Mother waived her right to trial on the petition as to Jacob. The court sustained the b-1 and b-2 counts of the petition as amended after mother submitted. The remaining counts were dismissed as “reiterations of the prior petition that was sustained.” The Department was ordered to evaluate Bryan’s mother as a possible placement. The case was continued to allow for receipt of Bryan’s paternity test.
A social worker spoke with Sophie in October. She said she wanted to care for Jacob only if a DNA test confirmed Bryan was the father. She also said that mother “can not [sic] be around.” By that time, Jacob was already in an approved adoptive home.
The disposition hearing was held on November 23, 2005. The juvenile court noted that the paternity test indicated that Bryan was Jacob’s biological father. Jacob was declared a dependent of the court and his custody was removed from his parents. The court indicated that placement with Sophie would be appropriate since Bryan was the father, even though he was scheduled to be incarcerated for another two years, and thus would not be receiving reunification services. Jacob was ordered placed with Sophie if she was “‘willing to go forward before her funding [was] in place[.]’” The court denied reunification services to Bryan under section 361.5, subdivision (e)(1) because he would be incarcerated beyond the reunification period. It ordered monitored visits for him, and authorized the Department to liberalize visits.
The social worker left numerous messages for Sophie after the November 23 order but they were not returned. She eventually spoke with Sophie in March 2006, and Sophie told her that “she and her family think it would be best for Jacob to be adopted by someone else and her answer regarding caring or adopting Jacob is ‘NO.’”
Mother’s services were terminated for Jacob at the six-month review hearing held June 7, 2006 because she had failed to comply with the case plan. A permanency planning hearing was set for October 3, 2006.
The Department did not facilitate visits between Bryan and Jacob despite the court’s visitation order because Bryan was in prison. On October 3, 2006, counsel for Bryan told the court that Sophie wanted to be considered as adoptive placement for Jacob. Counsel for Bryan expressed some doubt as to whether Sophie understood English well enough to understand his explanation that it was very late in the process to consider changing adoptive placements for Jacob. Counsel for Jacob reminded the court that Sophie had decided earlier not to seek placement of Jacob. She argued that the case was “well beyond the point where relatives have preference in this matter.” Counsel for Jacob argued that the child had been in one home since birth, that it was too late to move him, and that doing so would not be in his best interests.
Bryan’s counsel suggested that the court ask a social worker to speak with Sophie and Jacob’s paternal aunt to explain the process. The court directed the social worker to do so, noting that at this point the relative placement preference was no longer applicable. The section 366.26 hearing was continued to December 6, 2006.
On October 31, 2006, in a telephone conversation with the social worker, Bryan expressed his desire to reunify with Jacob. He said he had completed parenting classes in prison, and had been in a substance abuse program since February 2006. He had not participated in domestic violence classes. Bryan said the domestic violence case against him had been dismissed in March 2005. The social worker explained that the dependency allegation of domestic violence had been sustained. Bryan wrote to the social worker denying that he had engaged in domestic violence with mother or had threatened her with a gun.
The social worker spoke with the paternal aunt on November 2, 2006, and with Sophie the next day to give the explanation of the process as directed by the court. The social worker informed Sophie that it was too late for a relative to request placement and that the court had a preference to maintain stability and bonding between Jacob and the current caregiver. It was explained that Jacob was not placed with her previously because she was unwilling to facilitate visits with the parents.
Sophie appeared at the permanent planning hearing on December 6, 2006. The juvenile court acknowledged that Sophie originally refused to have Jacob placed with her because of her concern about mother’s drug usage. The court said that it was sorry that Sophie had not been told that if Jacob was placed in another home, it was possible that someone else would adopt him. It explained that it was too late to change Jacob’s placement. Sophie said that she and the paternal aunt had not visited Jacob while he was in foster care because of the mother. No one told them that they could not visit Jacob. The juvenile court said it was sorry that they had not been told that someone else would have monitored visits between Jacob and mother at a neutral location. At the suggestion of counsel for Jacob, the court told the paternal relatives to speak with a social worker about visitation through the prospective adoptive parents.
At the continued permanency planning hearing on March 8, 2007, counsel for Bryan again stated that Bryan desired relative placement. The court explained that it was too late for relative placement preference. The court found continued jurisdiction was necessary because the conditions on which jurisdiction was based continued to exist. It found Jacob adoptable by clear and convincing evidence, and terminated Bryan’s parental rights. This appeal followed.
Mother Betty C. is not a party to this appeal.
DISCUSSION
I
The primary issue on appeal is whether Bryan’s rights were violated in the termination of his parental rights. It turns on Bryan’s status as a parent.
We first dispose of a procedural issue—Bryan’s standing to appeal. Respondent argues that as a biological father, Bryan had limited rights and did not challenge the denial of reunification services. We disagree. In In re Baby Boy V. (2006) 140 Cal.App.4th 1108, the court found an exception to the general rule “‘that an alleged biological father who is not a party of record in the dependency court has no standing to appeal an order terminating parental rights’ [citation]” where the biological father came forward at the first opportunity and participated in the dependency proceedings. (Id. at pp. 1116-1117.) We agree with that approach. Bryan came forward and participated in the proceedings through counsel when he learned that he is Jacob’s biological father. He has standing to appeal the termination of his parental rights.
“In California, the ‘statutes governing dependency proceedings differentiate the rights of presumed, natural [or biological], and alleged fathers. [Citation.] The Uniform Parentage Act of 1973, originally adopted by our Legislature as Civil Code section 7000 et seq. and reenacted without substantive change as Family Code section 7600 et seq. [citation], distinguishes between presumed and merely biological fathers. [Citation.] “A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged’ father.”’ (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) ‘Presumed father status ranks highest. Only a “statutorily presumed father” is entitled to reunification services under . . . section 361.5, subdivision (a) and custody of his child under . . . section 361.2.’ (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.)” (In re Mary G. (2007) 151 Cal.App.4th 184, 197.)
Parental status impacts the right to reunification services, right to custody, and the nature of the findings required as a prerequisite to the termination of parental rights. Section 361.5 makes reunification services, including visitation, mandatory for presumed fathers but discretionary for biological fathers upon a finding that services would benefit the child. (In re Alanna A. (2005) 135 Cal.App.4th 555, 564; In re Raphael P. (2002) 97 Cal.App.4th 716, 725, fn. 7.) A biological father is not entitled to custody under section 361.2 if he does not attain presumed father status prior to the termination of any reunification period. (In re Zacharia D. (1993) 6 Cal.4th 435, 454.)
Termination of a biological father’s parental rights without a finding of unfitness does not violate his right to due process. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055 [“The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes [citations] are constitutionally sufficient when applied to a father who has failed to make such a showing.”]; In re Christopher M. (2003) 113 Cal.App.4th 155, 160 [“even a biological father’s ‘desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause.’ [Citation.] ‘“Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” [Citation.]’ (Lehr v. Robertson (1983) 463 U.S. 248, 260, italics omitted.)”].)
Here, it is undisputed that Bryan is Jacob’s biological father. The issue is whether he was entitled to the greater rights accorded a presumed father. “Family Code section 7611 generally sets forth the exclusive means for an unwed father to establish presumed fatherhood. (In re Zacharia D.[,supra,] 6 Cal.4th 435, 449.) Under subdivision (d) of Family Code section 7611, a man is a presumed father if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’ ‘The law gives presumed father status to those who have taken an active role in their children’s lives . . . .’ (In re Liam L., supra, 84 Cal.App.4th at pp. 745-746.)” (In re Mary G., supra, 151 Cal.App.4th at p. 197.)
Bryan recognizes that there was no express finding by the juvenile court that he is Jacob’s presumed father. But he argues that the finding may be implied because reunification services were denied him under section 361.5, subdivision (e)(1), which applies only to presumed fathers. The juvenile court found: “[Bryan] is by clear and convincing evidence someone who is described by Welfare and Institutions Code section 361.5, [subdivision] (e) subsection (1) in that he will be incarcerated beyond the family reunification period; therefore, the court is not ordering family reunification services be provided to him.” Bryan argues that if the juvenile court considered him just a biological father, the only finding required to deny him reunification services would have been that such services would not have benefited Jacob under section 361.5, subdivision (a).
Section 361.5, subdivision (a) provides in pertinent part: “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the . . . statutorily presumed father . . . . Upon a finding and declaration of paternity by the juvenile court . . . the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (Italics added.)
Respondent acknowledges the juvenile court erred in denying services under section 361.5, subdivision (e), but argues we should affirm the ruling because it was correct on two other grounds. First, respondent argues Bryan was not entitled to reunification services under section 361.5, subdivision (a) because he did not qualify as a presumed father. Second, Bryan was not entitled to reunification services because he was an incarcerated, noncustodial parent, not seeking custody, citing Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 627-629.
Mindful that a grant of reunification services is discretionary as to a biological father, we find no basis for an inference of presumed father status for Bryan in the juvenile court’s invocation of the wrong subdivision in denying such services. This is so because Bryan does not otherwise qualify as a presumed father under Family Code section 7611. The only possible portion of the statute that would apply is subdivision (d), but Bryan never received Jacob into his home as required by that provision. (In re Mary G., supra, 151 Cal.App.4th at p. 197.)
Bryan finds additional support for an inference that he was given presumed father status from the court’s orders that he be allowed to visit Jacob and that Jacob be placed with the paternal grandmother, Sophie, if she was willing. He argues that only a presumed father is entitled to relative placement consideration under section 361.3. Section 361.3, subdivision (a) provides: “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” Bryan’s argument ignores the fact that while he was not “entitled” to placement with a relative since he was not a presumed father, the juvenile court had discretion to consider such placement. In addition, we find nothing in the language of section 361.3 limiting its application to presumed fathers.
In summary, we do not agree with Bryan that he should be given status as a presumed father because the juvenile court gave him services to which he was not entitled as a biological father, or because the juvenile court cited the wrong code section in denying reunification services. The Legislature has stated the basis for a finding of presumed father status in Family Code section 7611. Bryan does not qualify. It would controvert the statutory scheme to infer such status on this record. Respondent points out that Bryan never asked the juvenile court for a finding that he was a presumed father. The record supports this argument.
Similarly, Bryan never asked for status under In re the Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). A Kelsey S. father has the greater rights accorded a presumed father. “If an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.) Failure to request status as a father under Kelsey S. in the juvenile court forfeits the issue on appeal. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582.) Even had he requested Kelsey S. status, the record establishes that he did not qualify. (See In re Elijah V., supra, 127 Cal.App.4th at pp. 583-584.)
Alternatively, Bryan argues he was entitled to placement of Jacob under section 361.2 because he was a nonoffending parent who was able to make suitable arrangements for Jacob’s care by having him placed with the paternal grandmother, Sophie He contends that a finding of detriment was required to deny him status under section 361.2. He relies on In re Isayah C. (2004) 118 Cal.App.4th 684. We disagree with Bryan’s reasoning.
“‘[A] biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, [but] he may move under section 388 for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances.’ (In re Zacharia D., supra, 6 Cal.4th at pp. 454-455, fn. omitted.)” (In re Andrew L. (2004) 122 Cal.App.4th 178, 191.) As we have discussed, Bryan was not found to be a presumed father by the juvenile court and did not qualify for that status. He never sought to attain that status by section 388 petition.
In re Isayah C., supra, 118 Cal.App.4th 684 is distinguishable. Although the Court of Appeal did not expressly state that the father in that case had been found a presumed father, he qualified for that status under Family Code section 7611, subdivision (d). The father had been awarded joint custody of Isayah, and had successfully completed a reunification plan in a prior dependency proceeding initiated after Isayah tested positive for drugs at birth. When Isayah was removed from his mother’s care, and a new dependency petition was filed, the fathertook him into his home and cared for him. The father told a social worker that he wanted sole custody of Isayah. Two weeks after Isayah was placed with him, the father was incarcerated for a parole violation. The opinion in Isayah C. is of no aid to Bryan since he did not qualify for presumed father status,. In addition, as we explain below, because of Sophie’s reluctance to have Jacob placed with her, Bryan could not offer suitable arrangements for Jacob’s care while he was incarcerated.
We turn to the question of whether the juvenile court erred in terminating Jacob’s parental rights in light of our conclusion that he must be treated as a biological, rather than presumed, father.
II
Bryan argues that his parental rights should not have been terminated because he was not found unfit. Respondent argues that even though Bryan was not a presumed father, the juvenile court made findings at the disposition hearing necessary to allow termination of parental rights at the section 366.26 hearing without a further finding of parental unfitness.
Bryan’s failure to qualify as either a presumed father or a father under Kelsey S. is fatal to his central argument that termination of his parental rights without a finding of unfitness violated his rights to due process. As a biological, rather than presumed father, he had no due process right to such a finding. (Adoption of Michael H., supra, 10 Cal.4th at p. 1055; In re Christopher M., supra, 113 Cal.App.4th at p. 160; see In re Zacharia D., supra, 6 Cal.4th at pp. 450-451 [termination of parental rights of biological father who does not satisfy any of the criteria for presumed father status or Kelsey S. criteria].)
The Supreme Court explained the sequence of findings preceding termination of parental rights at a section 366.26 hearing: “By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.)
Bryan cites In re Gladys L. (2006) 141 Cal.App.4th 845, in which the juvenile court never found a presumed father unfit. The Court of Appeal refused to imply a finding of detriment as requested by the Department in that case, and reversed the order terminating the father’s parental rights. The father in Gladys L. was a presumed father with greater rights than those to which Bryan was entitled as a biological father.
The recent opinion in In re P.A. (2007) 155 Cal.App.4th 1197 is instructive, although it involves a presumed father. Robert A. was found to be the presumed father of P.A., the eldest of three children detained after positive toxicology tests for mother and the youngest child at her birth. Robert A. was not located, and did not appear in court, until the section 366.26 hearing had been set. He objected to termination of his parental rights at the permanency planning hearing. On appeal, Robert A. contended that the juvenile court’s failure to make a finding that he was unfit as a parent precluded termination of his parental rights under In re Gladys L., supra, 141 Cal.App.4th at page 848.
The Court of Appeal relied on findings of detriment made at the dispositional hearing: “Here, the juvenile court made findings that the return of P.A. to her parents would be detrimental to the child. At the disposition hearing on February 2, 2005, the juvenile court found by ‘clear and convincing evidence there exists a substantial danger to the children and there’s no reasonable means to protect them without removal from the parents’ custody.’ (Italics added.) The juvenile court further found DCFS made ‘reasonable efforts to prevent removal, and the custody of the children is taken from the parents and placed in the care, custody, and control of the department for placement with a relative.’ (Italics added.)” (In re P.A., supra, 155 Cal.App.4th at p. 1212.)
Like Bryan, Robert A. argued that the detriment finding at the disposition hearing must be related to a corresponding jurisdictional finding. The P.A. court rejected that argument: “However, a child may be declared a dependent if the actions of either parent bring the child within the statutory definitions of dependency. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [‘a jurisdictional finding good against one parent is good against both’]; In re James C. (2002) 104 Cal.App.4th 470, 482.) Additionally, a jurisdictional finding is not an adequate finding of parental unfitness because it is made by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Therefore, even if the dependency petition had alleged Robert A.’s unfitness, the order sustaining the petition would have been inadequate, by itself, to terminate Robert A.’s parental rights without a subsequent finding of detriment by clear and convincing evidence. Thus, the absence of a jurisdictional finding that related specifically to Robert A. does not prevent termination of parental rights. To the extent the disposition in In re Gladys L. suggests a sustained dependency petition alleging unfitness of each parent is a necessary precedent to termination of parental rights, we respectfully disagree.” (In re P.A., supra, 155 Cal.App.4th at p. 1212, italics added.)
The same reasoning applies here. The absence of a jurisdictional finding as to fault by Bryan does not change the outcome because adequate findings of detriment were made by the juvenile court. At the disposition hearing, the juvenile court declared Jacob a dependent of the court under section 300, subdivision (b). It found by clear and convincing evidence “that there’s a substantial danger or would be if the child were returned home to his parents. There are no reasonable means by which the child’s well-being can be protected without removing him from parents[’] physical custody. Reasonable efforts were made to prevent and eliminate the need for the child’s removal. The court orders the care, custody and control and conduct of the child to be placed under the supervision of the Department for placement . . . .” (Italics added.)
It is undisputed that during the entire dependency proceeding, Bryan was either incarcerated or under a hold by the Immigration and Naturalization Service in Arizona. He was unable to suggest a suitable plan for Jacob’s placement with his mother, Sophie, because of her reluctance to assume that responsibility until the section 366.26 hearing. We adopt the reasoning of the court in In re P.A., supra, 155 Cal.App.4th 1197 and find no basis for reversal of the order terminating parental rights.
III
Bryan challenges the juvenile court’s decision not to place Jacob with the paternal grandmother Sophie Respondent argues that he forfeited the issue by failing to appeal the order, and lacks standing to do so.
We agree with respondent that Bryan lacks standing to appeal the decision not to place Jacob with Sophie In Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, the presumed father was incarcerated and stipulated to termination of reunification services. He adamantly argued that the children should be placed with his mother. The social services agency was ordered to evaluate the paternal grandmother for placement, and found her unsuitable. The juvenile court concluded that the social services agency had not abused its discretion in reaching that recommendation. The father filed a section 388 motion alleging new evidence of his mother’s suitability for placement.
The Court of Appeal concluded that father had no standing to appeal the relative placement decision. It reasoned: “We agree with SSA that [father] has no standing to appeal the relative placement preference issue. Especially in light of his stipulation to terminate reunification services, we cannot see how the denial of placement with [paternal grandmother] affects his interest in reunification with the children. It does not preclude [father] from presenting any evidence about the children’s best interests or their relationship with him. (See In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; cf. In re Daniel D. [(1994)] 24 Cal.App.4th [1823,] 1833-1834 [although challenge was untimely, mother apparently had standing to raise denial of relative placement preference before termination of reunification services where such placement arguably would have affected mother’s chances at reunification].) ‘An appellant cannot urge errors which affect only another party who does not appeal.’ (In re Vanessa Z., supra, 23 Cal.App.4th at p. 261; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503 [overruled on another ground in In re Chantal S. (1996) 13 Cal.4th 196, 204].)” (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035.)
Bryan argues that he was aggrieved and thus has standing. He asserts: “Had the court exercised its discretion and ordered that Jacob be placed with Sophie, it is reasonably probable that she would have facilitated visitation between her son and Jacob. . . . Indeed, had regular visits occurred, Father would have at least been able to make an argument in support of the beneficial parental relationship exception [to termination of parental rights]. (§ 366.26, subd. (c)(1)(A).)”
This argument is too speculative. Father was incarcerated when Jacob was born and he had no relationship with the child. “A parent seeking to establish a beneficial parent-child relationship sufficient to avoid the termination of parental rights must show, by a preponderance of the evidence, that he or she has ‘maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ (§ 366.26, subd. (c)(1)(A), italics added.) In this context, appellate courts have recognized ‘a lack of visitation may “virtually assure[ ] the erosion (and termination) of any meaningful relationship” between mother and child.’ ([In re] Hunter S. [(2006)] 142 Cal.App.4th [1497,] 1504, quoting In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.)” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
“To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) ‘Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.’ (Hunter S., at p. 1505.)” (In re Valerie A., supra, 152 Cal.App.4th at p. 1007.)
Bryan expressly has chosen not to challenge the adequacy of visitation provided: “Father is not making a separate argument with respect to the failure to facilitate court-ordered visitation. However, it is referenced for purposes of illustrating why Father is aggrieved.” On this record, there is no showing that a change in placement would have enabled Bryan to demonstrate the parental relationship with Jacob required to come under the section 366.26, subdivision (c)(1)(A) exception.
Even if Bryan had standing, we would find no error in the juvenile court’s determination that placement with Sophie was not suitable. Bryan argues that Sophie was misled by the Department about the necessity of interacting with mother through visitation. He contends that she was not given a fair chance at placement because of this misunderstanding. He contends that the juvenile court failed to exercise its discretion as to relative placement.
A social worker spoke with Sophie in October. This was 10 days after Bryan made his first appearance and requested placement with Sophie She said she wanted to care for Jacob only if a DNA test confirmed Bryan was the father. She also said that mother “can not [sic] be around.” By that time, Jacob was already in an approved adoptive home. Sophie blamed mother for Bryan’s imprisonment. She said that the court and the Department would have to agree that mother would not be allowed to visit Jacob. Sophie was caring for Bryan’s daughter from a previous marriage. Sophie and her husband submitted to a live-scan, but it was rejected due to insufficient detail.
At the disposition hearing on November 23, 2005, the juvenile court ordered Jacob placed with Sophie if she was “‘willing to go forward before her funding [was] in place[.]’” In a status review report dated March 27, 2006, the social worker reported that she had left numerous telephone messages for Sophie to discuss placement. Sophie did not contact the social worker until March 9, 2006, when she said she did not want to have to deal with the child’s mother. The social worker said that if Sophie adopted Jacob, she would not have to deal with mother. Sophie continued to express concerns that mother was “big trouble” and would give them “headaches.” When told that Jacob was already in an adoptive home, Sophie told the worker that the family believed it “‘would be best for Jacob to be adopted by someone else[.]’”
On this record, we find no error in the placement of Jacob in a foster home.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: WILLHITE, J., MANELLA, J.