Opinion
NOT TO BE PUBLISHED
APPEAL from an order of Superior Court of Los Angeles County No. LK02787. Zeke Zeidler, Judge.
Linda Rehm under appointment by the Court of Appeal for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Liza M. Samuelson, County Counsel for Plaintiff and Respondent.
ZELON, J.
Minor P.S. was the tenth child born to Mother. Shortly after his birth, he became her tenth child to enter the dependency system. Mother is not a party to this appeal, but Father, who was not the father of the other children, appeals from the termination of his parental rights. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
At the time of his birth on April 15, 2000, both P.S. and his mother had positive toxicology screens. Based on the petition filed on April 19, 2000, P.S. was ordered detained on April 20, 2000. On May 31, 2000, the petition was sustained under Welfare and Institution Code § 300 subdivisions (b), (g), and (j); no reunification services were ordered for either parent, Mother under section 361.5 subdivision (b) and father because his whereabouts were unknown. On June 6, father appeared, requesting the appointment of counsel and an order for paternity testing; both requests were granted. The paternity test indicated paternity, and, on September 27, visitation and reunification services were ordered for father. P.S. remained with his foster mother.
All statutory references are to the Welfare and Institutions Code.
Although some of mother’s other children were still dependents of the court and had hearings coordinated with P.S., no issues concerning mother’s parental rights or the status of the other children are raised in this appeal.
On April 26, 2001, P.S. was ordered placed with his paternal grandmother, and father’s reunification services were terminated, based on his failure to participate in programs and to visit. The hearing under section 366.26 was set for September 26, 2001. That hearing was ultimately held on April 5, 2002, at which time the paternal grandmother was appointed as P.S.’s legal guardian. The court continued to hold review hearings on a regular basis. In late 2003, grandmother indicated that she wished to relocate with P.S. to Hawaii, where her other son resided, and on March 24, 2004 the court entered an order permitting a visit to Hawaii and the initiation of an Interstate Compact on Placement of Children (“ICPC”). P.S. remained in Hawaii with his grandmother until May 2005, when she abandoned her plans to move. Tragically, she was killed in a traffic accident on June 5 of that year; P.S. was returned to the care of his original foster mother, who had also provided day care services during the time that P.S. lived with his grandmother in Los Angeles.
Foster mother indicated a desire to adopt P.S., and he wished to live with her. A section 366.26 hearing was set for March 16, 2006, and continued to July 13, 2006, to permit proper notice.
After P.S. had returned from Hawaii, father had resumed visits on a monitored basis. Now in a residential treatment program, he filed a section 388 petition on June 15, 2006, requesting restoration of reunification services and unmonitored visitation. The court denied that petition without a hearing. The section 366.26 hearing was continued to September to complete the home study on foster mother, and to permit father’s contest; father filed a new section 388 petition which was set for hearing on that same day. On September 14, the court ordered an Evidence Code section 730 evaluation of father and the foster mother by Dr. Fairbanks, and all matters continued to October 26. After several continuances, the report was filed in November, recommending permanent placement with the foster mother.
Dr. Fairbank’s report specifically examined the issue of the choice of physical placement as between father and foster mother. He interviewed each of them, as well as P.S., then six years old. From his interview with P.S., he concluded that “it is very clear that he wants to have the father visit him at home and is very anxious about going out with the father, probably because of his experience with being placed with the grandmother for a period of time, away from [foster mother] whom he likely had a very strong relationship with previously. . . . [¶] . . . He did, however, whisper to the examiner from the very beginning that he wants the Court to know that he wants to stay with [foster mother], clearly being anxious about the Court moving him to be with the father.” With respect to father, Dr. Fairbanks concluded that father knew he was not ready to take custody of his son, although he wished to do so; he also concluded that father would continue to have a relationship with P.S. regardless of the outcome of the hearing. Foster mother had also indicated that she would support a continuing relationship between P.S. and father.
At a hearing on November 30, the section 388 hearing went forward, with father’s testimony and the evaluation being received in evidence; the section 366.26 hearing was continued and ultimately held on May 11, 2007, after father had once again unsuccessfully sought relief under section 388.
The Court noted its consideration of the court file, specifically the section 366.26 reports dated September 14, 2006 and March 1, 2007, prior review reports, the adoption progress report, the documents submitted by father at the prior hearing, and the November 2006 report by Dr. Fairbanks.
Father testified that he had visited within the prior six months as much as he was permitted, which was every other week for one hour. During those visits, he had helped P.S. with homework, played basketball, talked, and had a birthday party; he had purchased clothes for P.S. They spoke on the telephone once or twice per week, and P.S. was anxious to visit. He knew his son’s favorite sports and foods.
With respect to prior contacts, father testified that he was not in P.S.’s life at all between June 2005, when grandmother died, and February 2006 because of his drug use. Earlier, while P.S. was living with grandmother, he had seen him on a regular basis. He had never lived with the child or had custody of him, however.
Minor’s counsel accurately argued, however, that there had been no visits during the extended time that P.S. was in Hawaii with grandmother.
After argument by counsel for father, the minor, and the Department, the court terminated parental rights, noting that “in a perfect world I would have the ability in this court to let [foster mother] adopt and let you stay the dad and let him have a mom and dad, legally, . . . but the state law doesn’t give me that option.” The court nonetheless found that the strength of the relationship with foster mother who was prepared to adopt, and with whom P.S. had maintained such close contact even when living with grandmother that the evaluator noted a fear of abandonment were he removed from her, outweighed the relationship with father. Moreover, the relationship with father, while as parental as it could have been given the limited and monitored visitation, did not outweigh the benefits of permanence.
Father timely appealed the termination of his parental rights. He asserts that the court erred in not finding applicable the exception under section 366.26 sub. (c)(1)(A).
DISCUSSION
THE TRIAL COURT PROPERLY TERMINATED APPELLANT’S PARENTAL RIGHTS
A. Standard of Review
Where, as here, there is a showing of the likelihood of adoption, the court must terminate parental rights unless the parent proves the applicability of one of the exceptions established by the Legislature. Father asserts that he has proven the grounds for the exception contained in section 366.26, subdivision (c)(1)(A), by showing regular visitation and contact with the child, and that the child would benefit from the continuation of the relationship. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The courts are split on the appropriate standard of review to apply when reviewing findings under section 366.26, subdivision (c)(1)(A). In Re Autumn H. (1994) 27 Cal.App.4th 567, and the courts that follow it, have reviewed the evidence in the light most favorable to the court’s order, looking to see whether substantial evidence supports that order. (See In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Other courts have applied the abuse of discretion standard. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) The practical differences between the two standards of review are minimal, in light of the broad deference we show to the trial judge (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and we need not resolve any differences here, as under either standard the lower court did not err.
B. Substantial Evidence Supports the Court’s Determination
In reviewing under the substantial evidence standard, we do not reweigh the evidence, reconsider the credibility of the witnesses, or resolve conflicts in the evidence; we accept evidence favorable to the order as true and disregard any unfavorable evidence. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Here, the favorable evidence supports the court’s finding that, while father has shown regular visitation, at least in recent months, he has not shown that his relationship with P.S. is more beneficial than the permanent stability offered by adoption. Indeed, the evaluator’s report provides substantial evidence that removing the child from his stable environment and the person he perceived as his mother would cause significant disruption. Thus, not withstanding father’s efforts to establish a relationship, and the court’s hope that those efforts would continue, the evidence supports the finding that the parental relationship was with foster mother, not father.
C. There Was No Abuse of Discretion
Despite father’s significant efforts, the record supports the court’s exercise of discretion in finding that father did not establish the (c)(1)(A) exception. Adoption has been established by the Legislature as the preferred option, and the statutory exceptions apply only in exceptional circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53.) That the court found no such circumstances here was not arbitrary, capricious, or patently absurd. Father had not succeeded in establishing a parental relationship with P.S.; he had not been a constant in the child’s life until long after his birth; he had never, despite efforts to do so, advanced beyond monitored visitation. While the visits were pleasant and loving, more is required; there was no day-to-day interaction or shared experience. (See In re Casey D., supra, 70 Cal.App.4th at p. 51.) The visits did not fulfill P.S.’s needs for a parent and a stable home. The strong, and vital parental relationship demonstrated by the record was instead between P.S. and his foster mother; his “significant, positive emotional attachment.” (In Re Zachary G., supra, 77 Cal.App.4th at p. 809) was not with father. Under these circumstances, the court did not abuse its discretion in terminating parental rights.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., WILEY, J.
Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.