Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. CK17007, D. Zeke Zeidler, Judge Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, and Deputy County Counsel for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Father appeals an order terminating his parental rights to his daughter, N.Z., and challenges the finding that Father failed to establish the “beneficial relationship” exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). We conclude that Father has not shown a compelling reason for determining that termination of parental rights would be detrimental to N.Z. under the section 366.26, subdivision (c)(1)(a), exception. We therefore affirm the order terminating parental rights.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention: On June 24, 2005, Lakewood Sheriff’s deputies executed search warrants in Hawaiian Gardens for a homicide suspect believed to have killed a sheriff’s deputy earlier that day, while three children were present. The Department of Children and Family Services (DCFS) was asked to investigate to determine the children’s safety. Investigation revealed that in the late afternoon, when Sheriff’s Deputy Ortiz went to a Hawaiian Gardens address to investigate a gang attempted murder, gang member Jose Luis Orosco, a.k.a. “Seppie,” shot Ortiz. Present in the house when the shooting occurred were Angela N. (Mother), Manuel A. and Priscilla C. (family friends), and Mother’s children A.M., J.N., and N.Z.
At 10:00 p.m., DCFS personnel went to the site of the shooting and removed the three children to a sheriff’s station. In interviews, A.M., eight years old, and J.N., six years old, revealed that they witnessed the killing of Ortiz. A.M. said Seppie was a family friend. She said that after talking to Mother at the front door, Deputy Ortiz entered the house, saw Manuel A., and asked Mother about Manuel’s identity. Seppie was hiding in the house. A.M. saw Manuel show his identification to Ortiz, and Seppie came from behind a door and shot Ortiz in the head. A.M. stated that everyone then ran to a friend’s house. A sheriff’s investigator later discovered a loaded shotgun in Mother’s bedroom, on her bed, which was easily accessible to the children. Sheriff’s deputies believed that Mother knew Seppie was in the home and was hiding behind the door when she talked to Ortiz. A.M. and J.N. both identified Mother’s friend Seppie as the shooter. Mother admitted she had known Seppie for nearly 20 years, but could not give his full name and denied knowing that anyone hid behind the front door or was present as she talked to Ortiz. Mother stated that she did not belong to any gang, but A.M. and J.N. said Mother affiliated herself with the “Barrios Hawaiian Gardens” gang, also known as “Hawaiian Gardens Hommies,” and Mother’s street name was “Shorty.” Mother said she did not know if any other adults in the home when Ortiz was killed had gang affiliation, but law enforcement asserted that Manuel A. and Priscilla C. had ties to the “Pomona 12” gang.
Mother stated she had no prior contact with the DCFS, but after some questioning revealed that she had a referral in December 2003 for drug use while pregnant with N.Z., now 17 months old. Mother had four other children born between 1990 and 1995 who were legally adopted by their paternal grandparents in 1995 and as to whom Mother’s parental rights were terminated. Mother did not know the whereabouts of A.M.’s father. J.N.’s father was in custody. N.Z.’s father, Frank Z. (Father) lived in Hawaiian Gardens but she had limited contact with him.
Mother initially denied drug use, but after her prior contacts with the DCFS were discovered, she admitted frequent methamphetamine use one year earlier. She denied recent use and stated that she would not drug test positive for narcotics.
A CSW interviewed Father, who said he and Mother lived in the same apartment complex. Father admitted his conviction in Kansas for lewd and lascivious acts with a minor and said he completed his Kansas probation, but also said he went back on probation when he relocated to California and failed to register as a sex offender. Father said he saw N.Z. every day, although Mother was uncooperative with him. Father said he would like to have custody of N.Z., was concerned about Mother’s ability to parent the children, and said the children were always dirty, had uncombed hair, wore dirty clothing, and were not dressed appropriately for the weather. Mother’s house was constantly messy. Father added that although he never saw Mother using drugs, the word on the street was that she used drugs, and Mother had a lot of gangsters coming to her house.
DCFS personnel determined that the children were at high risk for further abuse or neglect, and placed A.M., J. N, and N.Z. in a foster home.
At the June 29, 2005, detention hearing, the juvenile court found that a prima facie case to detain the children was shown and that the children were persons described by section 300, subdivisions (b) and (c). The juvenile court ordered the children detained from their parents. The juvenile court ordered the DCFS to provide family reunification services for the parents, to arrange weekly monitored visits for Father and some other paternal relatives, and to arrange for monitored visits for Mother.
Section 300 Petition: On June 29, 2005, the DCFS filed a juvenile dependency petition for 8-year-old A.M., 6-year-old J.N., and 17-month-old N.Z. The petition alleged that the children were persons described by section 300, subdivisions (b) [parents’ failure or inability to supervise or protect the child adequately] and (c) [children suffering, or at substantial risk of suffering, serious emotional damage as a result of parents’ conduct].
Adjudication and Disposition: A review report dated July 12, 2005, stated that Father Frank Z. was arrested on January 18, 2001, in Kansas for aggravated indecent liberties with a child, and was ordered to register as a sex offender; that on October 16, 2001, he was found in violation of probation, probation was revoked, and he was sentenced to six months in a Kansas prison; that in California on September 1, 2004, he was arrested as a sex registrant for failing to report a name change; that on September 2, 2004, he registered as a sex offender; and on September 13, 2004, he was convicted for failure to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(C)) and sentenced to 180 days in jail and 36 months of probation. Father was found to be aware of Mother’s living situation, which involved gang activity, illicit drugs around the children, drug use by Mother and adults in the home, and loaded weapons in the home. Father was on three years probation; he was employed. Father wanted N.Z. to live with him or his father or mother, but none of these people could presently care for N.Z. Father intended to move out of paternal grandfather’s home, but was not sure where he would live.
On July 12, 2005, the juvenile court found Father Frank Z. to be the presumed father of N.Z., ordered a visitation plan be set up for Father, and continued the matter to July 25, 2005.
In a July 25, 2005, jurisdiction/disposition report, the DCFS reported that N.Z. and her sisters were placed in a foster home. Father lived with Mother from the time N.Z. was a week old until he and Mother broke up in May 2005 and Father moved out. Father identified Seppie as a Hawaiian Gardens gang member. After moving out, Father saw Seppie in Mother’s house. Four days before Seppie shot Deputy Ortiz, Father told Mother he did not want Seppie in the house around N.Z. Father said many gangsters came to Mother’s house while he lived with her.
Father admitted smoking marijuana before he went on probation, and drank, smoked marijuana, and used prescription pills in high school. He said he had outgrown drug use, had not used drugs since he was on probation, and had been clean “ ‘going on a year.’ ” As of July 7, 2005, Father’s probation officer stated that Father was working and was in compliance with his probation. Father had a 10th grade education, and currently worked 40 hours a week from a temporary agency. Father was cooperative with the DCFS, appeared to have a strong bond with Mother’s children, and visited them regularly. Father stated that he would like to assume custody of N.Z. Father had unstable housing for himself and for N.Z.; in the previous four months he moved from his mother’s home, to the home of his cousin by marriage in the same apartment complex, to his father’s home.
Adjudication: On July 25, 2005, the juvenile court adjudicated the petition as amended and sustained three counts of the petition alleging that the children were persons described by section 300, subdivision (b), because of the parents’ failure or inability to protect or supervise them. In the first count, on June 25, 2005, Mother was found to have created a detrimental home environment for A.M., J. N, and N.Z., by allowing people to use illegal drugs in her home while the children were present, leaving dangerous weapons in the home within access of the children, and allowing known gang members to frequent the home and have unlimited access to the children. Further, on June 25, 2005, gang member Jose Luis Orosco shot Sheriff’s Deputy Jerry Ortiz in the children’s presence. In the second count, Mother had a history of substance abuse, including methamphetamine use, which periodically rendered her incapable of providing regular care and supervision of the children. In the third count, N.Z.’s father, Frank R., knew or reasonably should have known of the detrimental home environment created by Mother’s conduct, which included Mother’s allowing people to use illegal drugs when N.Z. and her siblings were present and allowing known violent gang members in the house where they had unlimited access to the children, but Father failed to protect N.Z. Father and Mother pleaded no contest. Remaining allegations in the petition were dismissed. The juvenile court continued the matter for a dispositional hearing on August 31, 2005.
Disposition: For the August 31, 2005, hearing, the DCFS reported that Father worked full time as a laborer for the previous few weeks. Father had enrolled in a parenting class and attended his first class on August 18, 2005, but he had not enrolled in individual counseling. He stated that he missed his last random drug test on July 22, 2005, because he lacked identification. Father’s mother (N.Z.’s paternal grandmother) stated that she and Father were going to move into an apartment on September 1, 2005, and within a few days they would have the home prepared for a DCFS home evaluation. The DCFS, however, remained concerned about Father’s conviction for a lewd/lascivious act on a child under 14 in Kansas.
On August 31, 2005, the juvenile court continued the dispositional hearing for N.Z. to September 13, 2005, for an evaluation of Father’s home.
On September 13, 2005, the DCFS did not recommend releasing N.Z. to Father’s custody. Father was informed that he had to participate in individual counseling to address his conviction for lewd and lascivious acts on a child under 14, random drug test, and complete a parenting class. Father did not enroll in individual counseling for almost a month, had participated in only one counseling session, and provided no written verification of his enrollment. Father failed to submit to random drug testing on at least three occasions, because he had lost his driver’s license. Although Father stated he actively participated in parenting class, he had not provided the DCFS with written verification. On September 13, 2005, the juvenile court continued the dispositional hearing for N.Z. to October 12, 2005.
For the October 12, 2005, hearing, the DCFS reported that Father did not provide the DCFS with written verification and thus it was unknown how many counseling sessions Father attended. Father had informed a CSW that he missed one counseling session because he could not pay for it. Father failed to submit to random drug testing on August 5 and September 26, 2005. Father had not contacted the CSW to pick up his monthly bus pass.
In the October 12, 2005, hearing, Father testified that initially he missed random drug tests because he lacked identification, but tested at least five times, with results going to the DCFS. Father attended three individual counseling sessions, but because that counselor would not provide a written report, Father switched to Family Services of Long Beach, where he had an intake interview and one counseling session. The DCFS, however, believed it would be detrimental to release N.Z. to Father based on Father’s conviction in Kansas, his violation of parole seven months later by failing to drug test and to register as a sex offender in California, and his recent failure to drug test and to attend counseling in a timely manner.
The juvenile court found that a substantial danger existed to N.Z.’s physical or mental health, declared N.Z. a dependent child of the juvenile court, and placed custody with the DCFS. The juvenile court ordered the DCFS to place N.Z. with her paternal grandmother after verifying that she had a car seat, and that Father could live in paternal grandmother’s home if he tested clean, participated in individual counseling, and was not left alone with N.Z. The juvenile court ordered family reunification services for N.Z. and to her parents, and ordered Father to complete a DCFS-approved parent education program, individual counseling to address his Kansas conviction and his drug history, to abide by conditions of his probation, and to complete 10 consecutive weekly random drug tests. Mother and Father were to have monitored visitation. The matter was continued for a judicial review hearing on February 28, 2006.
Section 387 Petition: On October 12, 2005, the DCFS placed N.Z. in the home of paternal grandmother Guadelupe H. On November 9, 2005, a Sheriff’s Detective reported to the DCFS that Father took N.Z. to Hawaiian Gardens to be cared for by people previously involved in the case. Threats had been made to kill family members so they would not testify, placing N.Z. at risk of being harmed. Guadelupe H. stated that because her regular babysitter was not available, she left N.Z. for two days with Father’s cousin in Hawaiian Gardens. The DCFS detained N.Z. from Guadelupe H. and Father and returned N.Z. to her previous foster home with her sisters. On November 21, 2005, the DCFS filed a section 387 petition alleging that Guadelupe H. endangered N.Z. by leaving her in the care of relatives living in the same gang-impacted area where death threats were previously made against N.Z. and other family members because they witnessed a gang-related murder. The petition also alleged that on November 9, 2005, Guadelupe H. failed to provide N.Z. with medical treatment for N.Z.’s severe diaper rash.
On November 21, 2005, the juvenile court found that a prima facie case for detaining N.Z. was established and that continued residence in the home of Guadelupe H. and Father was contrary to N.Z.’s welfare, and ordered N.Z. detained and custody vested with the DCFS. The juvenile court ordered the CSW to create a visitation schedule for Father twice weekly at the DCFS office. The matter was continued for a pretrial resolution conference hearing on December 5, 2005.
For that hearing, the juvenile court received a psychological evaluation from Ronald R. Fairbanks, Ph.D., to assess the risk Father presented to his child, N.Z. Father was presently 23 years old. At 18 he was working at WalMart in Kansas, and met a girl who, he said, stated she was 16 years old when in fact she was 13. They had sex, her parents pressed charges, and he plea bargained to lewd and lascivious behavior and signed off as a sex offender, serving six months in prison instead of the 20 years he would have served if he had not plea bargained. He admitted he did not register when he returned to California, thus committing another crime for which he served a month in jail and was put on three years probation. He had no history of rape or molestation. His one and one-half-year relationship with Mother produced N.Z. Father had no psychiatric hospitalization, and admitted feeling depression regarding N.Z. and some anxiety. Dr. Fairbanks described Father as well-adjusted, pleasant, and rational, with positive values and no significant emotional problems. Father realized his earlier mistakes, and was able to communicate about the issues. The evidence pointed toward Father not being a traditional sex offender. Psychological testing showed that Father was not significantly manipulative and was less aggressive than most people, but needed to develop impulse control strategies. Another test ruled out psychopathy. A Sex Offender Risk Appraisal Guide test produced a “very low risk level” score. Dr. Fairbanks concluded that Father did not present a significant risk for being a predator or sex offender and presented a very low risk of future sexual crime. Dr. Fairbanks did not see sexual abuse by Father as a major risk for N.Z., and found no need for more treatment, except for counseling for impulse control.
A December 5, 2005, jurisdiction/disposition report stated that Guadelupe H. appeared to have limited support systems to help care for N.Z. She and Father appeared to be unaware that it was unsafe for N.Z. to be in Hawaiian Gardens. Both agreed to the detention and re-placement to insure N.Z.’s safety.
Father drug tested clean five times between September 16 and November 16, 2005, but missed drug tests on August 5 and 26, 2005. Father reported regular attendance at counseling and parenting classes. The DCFS had concerns about negligent care by Guadelupe H. and Father, and recommended that N.Z. be detained from them. The DCFS did not believe that Father was able to care for one-year-old N.Z., and that he needed to complete a parenting class, participate in counseling, and drug test with no missed or positive tests before N.Z. could be placed in his home.
In a December 5, 2005, hearing, pursuant to the parties’ stipulation, the juvenile court dismissed the section 387 petition without prejudice and ordered N.Z. suitably placed in a non-relative placement. The juvenile court ordered unmonitored day visits for Father, with visits to occur no less than twice per week. On December 13, 2005, however, Father’s probation officer informed the DCFS that Father’s probation prohibited his contact with children, as he was a registered sex offender. On December 16, 2005, the juvenile court ordered monitored visits for Father until the probation court approved otherwise.
February 28, 2006, Six-Month Review Hearing: The DCFS reported that Father continued to share housing with Guadelupe H. On December 5, 2005, N.Z. was returned to the foster home where her two sisters lived with foster parents, who expressed a willingness to adopt them if their parents did not reunify with their children. Both Mother and Father voiced a strong desire to reunite with their children, but neither parent had demonstrated an ability to care for their children independently in a safe, stable manner.
Father had eleven clean drug tests between September 16, 2005, and January 23, 2006, but missed drug tests on August 5, August 26, and November 22, 2005. Father reported that he completed a parenting class and regularly attended weekly individual counseling. The counselor initially confirmed in November 2005 that Father enrolled in counseling, but on February 6, 2006, reported Father’s “irregular” attendance and that Father owed the counselor “so much money.”
Father visited once a week and those visits went well. He occasionally missed visits or was late. When informed that the juvenile court ordered twice weekly visits, Father stated that he agreed with visiting once a week for two hours rather than for one hour, but stated that it was hard for him to visit two times a week. The DCFS stated concern that Father had “irregularly” participated in individual counseling, and there were concerns about whether he could safely and adequately care for N.Z. The DCFS concluded that Father partially complied with juvenile court orders, recommended six more months of family reunification services for him and N.Z., and recommended that the DCFS be given discretion to allow Father unmonitored weekend visits when the probation court approved that order and when Father obtained a letter from his therapist stating that he could safely care for N.Z.
On February 28, 2006, the juvenile court ordered that once the DCFS received probation court approval and a recommendation from Father’s therapist, Father could have unmonitored visits with N.Z. The juvenile court found Father in partial compliance with the case plan, and ordered the DCFS to provide family reunification services to Father and N.Z. and to provide transportation funds to Father. The matter was continued to March 24, 2006, for a contested hearing for Mother, which was subsequently continued to April 6, 2006.
April 18, 2006, Hearing: On March 24, 2006, the DCFS reported that Father had stopped attending counseling, and had not met with the CSW on March 7, 2006, to get his bus pass and discuss his case plan. The counselor stated that she saw Father 12 times from October 2005 and February 6, 2006, after which Father disappeared. Father had written a check for a large amount which bounced and still owed the counselor money. The counselor contacted Father twice, but he had not responded. The DCFS concluded that Father did not appear to comply with the case plan.
The April 6, 2006, matter was continued to April 18, 2006. In that hearing, the juvenile court found Mother was in compliance with the case plan, ordered the DCFS to provide further family reunification services to Mother, and modified the case plan to order Mother to participate in an in-patient program or options for recovery.
September 22, 2006, Contested Six-Month Hearing: In April 2006, Father made no contact with the DCFS. The DCFS reported that by the second week of May 2006, a social worker was satisfied that Father was stable enough to resume monitored visits with N.Z., but Father did not appear for his May 1, 2006, visit. A CSW contacted Father on May 19, 2006. Father said he had not re-enrolled in counseling and had an outstanding bill, but reported plans to go to counseling that day. On June 30, 2006, Father informed a CSW that he had completed parenting classes and gave a certificate to the court. Father stated that he had not attended counseling because other financial obligations prevented him from paying for counseling sessions, and he had not visited N.Z. in more than two months due to long working hours. On July 19, 2006, Father’s probation officer confirmed that Father complied with his probation case plan. As of August 29, 2006, Father had not resumed visits with N.Z. The DCFS concluded that Father had not shown an ability to independently care for N.Z. and had not maintained regular visits.
In a contested review hearing on September 22, 2006, Father testified that he had completed parenting education and submitted a certificate to the CSW, abided by the terms of his probation, and random drug tested ten consecutive times and was told by the CSW that he did not have to test any more because he had complied with the court order. Regarding counseling to address his Kansas criminal conviction and drug history, Father stated that since October 12, 2005, he participated in counseling once a week for three months, but stopped because he could not pay. Father stated that he paid his counseling bill the previous week, and had proof that he was re-enrolled in that program. Father stated that he was employed and had money to pay for counseling.
The juvenile court found that Father was in compliance with the case plan and that there was a probability of return to Father by the 18th month date, and ordered further family reunification services be provided to Father as to N.Z. The juvenile court set the matter for a December 22, 2006, hearing.
Section 366.22 Hearing: In an October 27, 2006, interim review report, the DCFS reported that no progress report had been received from Father’s therapist. N.Z. and her two sisters were placed in a foster home for which an adoption home study was in process. The foster parents wished to adopt all three children.
For the December 22, 2006, hearing, the DCFS reported that N.Z. had adjusted positively to her current foster home with her two sisters. Her caregivers continued to express a willingness to adopt her and her sisters if the parents did not reunite with them. Father visited N.Z. weekly. Although the foster agency reported that N.Z. interacted well with Father, after each visit N.Z. wet her bed, and as of November N.Z. had begun to defecate in her pants and smear the feces after a visit.
Father’s counselor, Claire Detrano, informed a CSW that Father was open and honest during his sessions. Detrano stated that she and Father had discussed his sexual offense and Father did not show a risk to N.Z. Detrano had concerns about Father’s ability to provide for N.Z. due to his lack of unemployment and his housing. Detrano also stated that Father had not consistently participated in counseling because he often did not have the money to pay for services.
A CSW met with Father and asked him about his living arrangements. Father said he lived with his mother and sister. The CSW raised concerns about the safety of the grandmother’s home because of the previous removal of N.Z. from that home. Father stated that his sister, who lives in the home, is an illegal drug user. The CSW informed Father that his current residence was not suitable for N.Z. Father said he was looking for a better job and a place of his own.
N.Z., now nearly two years old, was placed with her caregivers on June 25, 2005, and did well in that home, was developmentally “on task,” and was comfortable in her surroundings and attached to her sisters and her caregivers.
The DCFS concluded that although Father was in partial compliance with court orders, he had not made substantial progress toward addressing safety issues that led to N.Z.’s removal. After 18 months of reunification services, Father still lacked suitable housing for N.Z. and self-reported that a known drug user lived in his home. The DCFS believed that Father minimally participated in counseling and did not sufficiently address his sexual offense and safety issues that resulted in N.Z.’s detention. Father also had not demonstrated that he could independently care for N.Z. and had not had unmonitored contact with her. Father’s probation court, which supervised his status as a registered sex offender, did not yet allow him unmonitored contact with children. The DCFS recommended termination of reunification services for Father.
On December 22, 2006, the juvenile court held a section 366.22 hearing as to N.Z. The juvenile court found that Father was in partial compliance with the case plan, ordered family reunification services for Father terminated, and set the matter for a section 366.26 hearing on April 25, 2007. The April 25, 2007, hearing was later continued to July 23, 2007, for a contested hearing.
The Section 366.26 Hearing: On April 25, 2007, the DCFS reported that N.Z. was placed with her two sisters in a foster home. Father continued monitored visitation, but the foster parents reported that after a visit with Father, N.Z. had episodes of encopresis and smearing of her fecal matter, and the night after every visit with Father she would wet her bed.
Father testified in the July 23, 2007, contested hearing. He testified that since the case began, he visited N.Z. on average once a week for one or two hours. In the previous year, he missed visits because of his work schedule or transportation problems. When N.Z. first saw Father at visits, she screamed, yelled “Dada,” and ran to him. He picked her up and kissed her, and they played. Usually during visits they got something to eat at McDonalds and then played hide and seek or played with toys. Father read to N.Z., and they talked about how N.Z. had been since their last visit and how her sisters were. When the visit ended, N.Z. got a sad face and sometimes cried, but Father stated that she knew they would meet again the following week. She gave him a kiss and a hug during visits. Father did not want N.Z. adopted. He believed that he brought unconditional love to N.Z. that should not be eliminated. Even if N.Z. was placed with a guardian and did not live with Father, he believed that he could provide her with emotional and financial stability. Father stated that he loved N.Z.
The juvenile court found that although Father maintained weekly visits for one or two hours, they had not conferred a parental relationship and role in her life. The juvenile court found that Father’s relationship to N.Z. did not outweigh the benefit of adoption with her siblings by parents who had raised them for the previous year and a half. The trial court found it would be detrimental for N.Z. to be returned to her parents and ordered the parental rights of Mother and Father terminated, with custody transferred to the DCFS for adoption planning and placement.
Appeal: Father filed a timely notice of appeal from the order terminating parental rights.
ISSUE
Father claims that he satisfied the section 366.26, subdivision (c)(1)(A), exception and that substantial evidence did not support the judgment terminating parental rights.
DISCUSSION
1. The “Beneficial Relationship” Exception of Section 366.26, Subdivision (c)(1)(A)
Under the beneficial relationship exception of section 366.26, subdivision (c)(1)(A), a juvenile court finding that “the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, 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 . . . the following circumstance: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The parent has the burden of providing evidence of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The section 366.26, subdivision (c)(1)(A), exception requires a showing “that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
This court reviews a juvenile court finding that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A), did not apply according to the substantial evidence test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228; In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
2. Father Generally Maintained Regular Visitation and Contact with N.Z.
The statutory beneficial relationship exception first requires a showing that the parent maintained regular visitation and contact with the child.
The juvenile court found that Father maintained weekly visits. The evidence shows that after N.Z. was detained on June 24, 2005, until October 12, 2005, Father’s visitation is unclear, but N.Z. lived with Father and paternal grandmother from October 12, 2005, until N.Z. was detained from them on November 9, 2005, and returned to foster care placement with her two sisters. After November 9, 2005, Father’s visitation once a week was generally consistent, although he ceased visitation during May, June, July, and August 2006. By December 22, 2006, Father had resumed weekly monitored visits, which he continued until April 25, 2007. Thus despite some evidentiary gaps and a four-month period in which Father did not visit N.Z., Father generally maintained regular visitation and contact.
3. Father Has Not Shown That N.Z. Would Benefit From Continuing the Relationship
Father claims that substantial evidence does not support the juvenile court finding that termination of parental rights would not greatly harm N.Z.
As to the second section 366.26, subdivision (c)(1)(A), requirement that “the child would benefit from continuing the relationship,” the parent has the burden of showing that continuing the parent-child relationship will promote the child’s well-being sufficiently to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) “On review, we may not reweigh the evidence and substitute our judgment for that of the trial court.” (Id. at p. 775)
The juvenile court found the relationship between Father and N.Z. had the nature of a limited play relationship, and to the extent Father had a parental relationship, it did not outweigh the benefit of adoption and legal permanence. The juvenile court emphasized that N.Z. and her two sisters were to be adopted as a sibling unit by foster parents who raised them for the previous year and a half.
Father testified that during weekly visits he and N.Z. played and had something to eat at McDonalds, he read to N.Z., and he talked to N.Z. about how she was doing and how her sisters were. There was also evidence, however, that visits negatively affected N.Z. In December 2006, N.Z. was reported to wet her bed after each visit with Father, which was the only time she wet her bed. By November 2006, N.Z. had begun to defecate in her pants and smear feces after a visit. This behavior continued and on April 25, 2007, the caregivers again reported that after every visit with Father, N.Z. wet the bed and had episodes of encopresis and smearing of her fecal matter.
There was evidence that N.Z. had adjusted positively to her foster parents’ home, where she had lived with her two sisters, except for a one-month period, since her initial detention on June 24, 2005. In December 2006, N.Z. was reported to have a good disposition, interacted affectionately with her caregivers, and hugged and was physically close to them. Her development was age appropriate and “on task.” She was attached to her caregivers, who provided for N.Z.’s basic needs in a safe, stable home and were loving and affectionate to her and her sisters. In April 2007, the foster parents stated that they loved N.Z. and her sisters like their own children, and wanted to provide them with a permanent home. N.Z., three years and four months old, stated that she loved her caregivers and would like to live with them and her sisters.
Although parent-child interactions ordinarily confer some incidental benefit to the child, the section 366.26, subdivision (c)(1)(A), exception only applies when the juvenile court find “a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Substantial evidence supported the juvenile court’s finding that the relationship between Father and N.Z. did not constitute this significant parent-child attachment. Moreover, Father did not meet his burden of showing either that (1) continuing the parent-child relationship will promote the child’s well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents, or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) “[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (Ibid.) The biological parent must show more than that the child would derive some benefit from continuing a relationship maintained during parent-child visitation. A dependent child of the court “should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (Ibid.) Father did not make the showing necessary to satisfy the section 366.26, subdivision (c)(1)(A), exception. He did not provide evidence that continuing the parent-child relationship would promote N.Z.’s well-being such that it would outweigh what she would gain in a permanent home with adoptive parents, and did not provide evidence that termination of the parental relationship would greatly harm N.Z.
We therefore affirm the juvenile court’s order terminating parental rights.
DISPOSITION
The order is affirmed.
We concur: LEIN, P. J., ALDRICH, J.