Opinion
F050435
12-14-2006
In re MICHELLE P. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. STEPHEN P., Defendant and Appellant.
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J., and Cornell, J.
Stephen P. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his two young daughters. Appellant incorporates by reference the brief filed by the childrens mother in In re Michelle P. et al. (F050289) that the court erred by not finding termination would be detrimental to the children based on their parent/child relationship. On review, we will affirm, as we did in the mothers appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In August 2004, the Fresno County Superior Court adjudged Michelle P., born in September 2001, and Jayden P., born in August 2003, dependent children and removed them from parental custody. The court previously determined the children came within its jurisdiction under section 300, subdivision (b) based on the mothers historic abuse of vicodin and methamphetamine — which left her incoherent while ostensibly caring for the children — as well as both parents domestic violence in the childrens presence.
Despite an order for reunification services, the mother made no progress. Consequently, at an April 2005 review hearing, the court terminated her services and reduced her supervised visits from twice-a-week to twice-a-month. By contrast, appellant made sufficient progress so that the court continued his services for another six months. At the time, a risk and safety assessment determined there was a low risk of harm to the children in appellants care.
As the year progressed, appellant appeared to have successfully completed services and was having liberal visits with his daughters. However, he had stopped drug testing in March 2005. When respondent Fresno County Department of Children and Family Services (the department) requested a hair follicle test from him in October 2005, it proved positive for amphetamine and methamphetamine. That coupled with evidence he had not complied with court orders regarding the mothers visitation led the court to terminate all reunification efforts, reduce appellants visits to supervised and once-a-week, and set a section 366.26 hearing.
In anticipation of the section 366.26 hearing, the department prepared a report in which it recommended that the court find the children were likely to be adopted and order parental rights terminated. Relevant to this appeal, the department reported:
"Mr. [P.] has contacted the undersigned on three occasions in regards to his daughters, Michelle and Jayden. Mr. [P.] currently has once a week visits with his daughters. Father has attended visits on January 4, 2006, January 11, 2006, January 18, 2006, January 25, 2006, February 1, 2006, February 15, 2006, February 22, 2006,, March 1, 2006 and March 8, 2006. Mr. [P.] failed to show for a visit scheduled on February 8, 2006. The undersigned received no phone message from father explaining why he no showed. Minors appear happy to see their father and enjoy the time they spend interacting with him during the visit. At times father does appear overwhelmed when interacting with the minors during the visits. During the visits on February 15, 2006 and March 8, 2006, Michelle seemed more interested in buying candy at the vending machine [than] visiting with mom and dad. On March 8, 2006, father had stated that they could go at the end of the visit. As a result, Michelle attempted to end the visit early in order to go to the vending machine. When visits come to an end, minors do not appear upset when leaving their parents. The undersigned believes that at most father shares an unhealthy parent/child relationship with the minors. While visits with the minors appear to go well, father has failed to ameliorate the conditions, which brought the girls into care. Father has failed to drug test for the Department twenty times between August 2, 2005 and February 21, 2006. When father did drug test on September 28, 2005, the test was positive.
"Michelle and Jayden have been placed with their prospective adoptive parents since February 28, 2005. Minors are happy in placement and refer to their care providers as `mommy and `daddy. Minors have been in a stable home for over a year and share a positive attachment to their care provider and the care providers children. Both girls seek out their prospective adoptive parents for their ongoing care and support. Michelle has been using her care providers last name as her own and will refer to herself by that name. Jayden appears to seek out affection more and will become excited when the care providers children return home from school and greets them with hugs each day. The undersigned believes a permanent plan of Adoption with termination of parental rights would be in the minors best interest, as a plan of permanency would outweigh the unhealthy parent/child relationship the minors share with Mrs. [W.] and Mr. [P.]."
The court conducted the section 366.26 hearing in April 2006. The department submitted the matter on its report. Appellants trial counsel called a visitation monitor, who had observed three recent visits between appellant and the children, as a witness. The witness described appellants behavior as appropriate during the visits. When asked if the children ever appeared unhappy with their father, the visitation monitor replied "sometimes when he didnt have change for candy." Following limited argument, the court found the children were likely to be adopted and terminated parental rights.
DISCUSSION
When reunification efforts cease, the scale tips away from a parents interest in maintaining family ties and towards the childs interest in permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect childrens compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) At that point, adoption becomes the preferred permanent plan.
Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the childs best interests and therefore not detrimental. (§ 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) In other words, the decision to terminate parental rights at a section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
Although section 366.26, subdivision (c)(1) acknowledges that termination is detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (Ibid.; In re Jasmine D., supra, 70 Cal.App.4th at p. 1348.) It is up to a parent or other party to prove that termination would be detrimental. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343.) The statutory exceptions merely permit the court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. ((2003) 31 Cal.4th 45, 53.) Consequently, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue, contrary to appellants argument otherwise, is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Appellant relies on the statutory exception to termination which the court may find if a parent has maintained regular visitation and contact with his child and the child would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(A)). He cites as proof the record of his and the mothers supervised visits with the children as well as his previous liberal visits with the children. However, that record does not rise to the level of exceptional circumstances such as to compel the court to find termination would be detrimental to the children. (In re Celine R., supra, 31 Cal.45h at p. 53.)
"The existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: `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 parents rights are not terminated. (Id. at p. 575.)" (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Appellant introduced no evidence that either Michelle or Jayden would be greatly harmed if their relationship with him were severed. At most, the record suggests that appellant had become a friendly visitor with his daughters. In addition, the court did not have to ignore the fact that Michelle and Jayden were each under age five and would face the prospect of tenuous placement for the bulk of their childhoods if parental rights were preserved. Having reviewed the entire record, we conclude the juvenile court did not abuse its discretion by terminating parental rights in this case.
To the extent appellant expresses concern over the social workers opinion that the parent/child relationship was an unhealthy one, we have not considered that conclusion as it was unsupported by any foundational facts.
DISPOSITION
The order terminating parental rights is affirmed.