Opinion
B232405
11-08-2011
In re VINCENT Z. III et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. VINCENT Z., JR., Defendant and Appellant.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of Los Angeles County. Sherri S. Sobel, Juvenile Court Referee. Affirmed.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
(Los Angeles County Super. Ct. No. CK51329)
Defendant and appellant Vincent Z. (Father) appeals from an order terminating his parental rights. We affirm. Though we acknowledge that Father made significant efforts throughout his reunification period, including to maintain regular visitation with his children, substantial evidence supported the juvenile court's finding that the beneficial relationship exception to termination codified in Welfare and Institutions Code section 366.26., subdivision (c)(1)(B)(i) did not apply. Nor do we find that the termination order was based on the consideration of any improper criteria, resulted from an improper preference for adoption or involved any due process violation.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Detention.
In early March 2009, the children Nathaniel, Vincent and Isabella—then ages two, one and two months, respectively—came to the attention of the Los Angeles County Department of Children and Family Services (Department) through a referral alleging that mother Catherine E. (Mother) was using methamphetamines, neglected the children and called them names. The referral also reported that Mother had been arrested for shoplifting and was incarcerated. Maternal relatives were caring for the children, but they would not allow Mother's return and might not be able to care for the children long term.
On March 3, 2009, the Department contacted the maternal relatives, great uncle Joseph E. and great aunt Josephine Y., who reported that Mother and the children had been living with them since October 2008. They had observed Mother berate the children and ignore their needs, and expressed concern about Mother's behavior, recent weight loss and history of drug use. Josephine also reported an incident where Mother hit Nathaniel with her hand and then pushed him out of the room. They additionally expressed concern for the children's safety if placed with Father. Despite their concerns, they stated they felt equipped to care for the children. The next day, however, Joseph and Josephine surrendered the children to the Department, citing the need for childcare and an inability to care for the children.
Mother reported that Father was Vincent and Isabella's biological father. The Department interviewed him on March 5, 2009. He stated that he considered all three children to be his own and had been providing for them since birth. He generally cared for them on weekends and was interested in having them in his custody long term. He admitted to drinking on weekends and using marijuana "'a little,'" primarily to settle panic attacks.
On March 9, 2009, the Department filed a section 300 petition as to all children, alleging jurisdiction under subdivisions (a), (b), (g) and (j). The petition alleged that Mother had physically abused the children by striking Nathaniel in the face (§ 300, subds. (a) & (j)); that Mother physically abused the children, endangered them by committing the crime of theft and had a history of drug abuse (§ 300, subd. (b)); and that Father was a current marijuana user and his illicit drug use put the children at risk (§ 300, subd. (b)).
The petition also contained allegations under section 300, subdivisions (b) and (g) relating to Nathaniel's alleged father.
Mother and Father appeared at the detention hearing. The juvenile court declared Father to be Vincent's presumed father and Isabella's alleged father. It found a prima facie case for detaining the children and ordered that Mother and Father participate in a drug treatment program and obtain individual counseling. It also ordered that they receive monitored visitation at least three times per week. The juvenile court placed the children in foster care pending further evaluation of interested relatives.
Jurisdiction and Disposition.
For its March 30, 2009 jurisdiction/disposition report, the Department interviewed Mother, Joseph and Josephine. At that point, Father was incarcerated. Mother stated that she and Father had previously lived together for two years and that he had stayed home to care for the children while she provided income for the family. With respect to the allegation against Father, Mother reported that she did not know when Father began using drugs, but knew that he used marijuana for panic attacks. She did not believe the children were in any danger because of his drug use. Joseph and Josephine reported that they had heard Father used marijuana, but they never observed him use drugs or appear to have used drugs. Joseph conceded he did not know Father very well. In the report, the Department described Father as having "a history of drug use, including marijuana" and failing to properly take care of his children. It recommended that he receive reunification services.
An interim report simultaneously submitted by the Department contained a favorable assessment of Joseph and Josephine and recommended that the children be placed with them. The report added that they had been hesitant about caring for the children earlier because they thought Mother could come to take them away while in their custody. After understanding more about the process, they indicated they were willing to care for the children until they reached maturity. On March 30, 2009, the juvenile court placed the children with Joseph and Josephine and permitted the paternal great-grandmother monitored visitation.
Mother and Father testified at the May 6, 2009 jurisdiction and disposition hearing. Father testified that he had been arrested and incarcerated for approximately six weeks for being under the influence; since his release he had been participating in a drug treatment program. He testified he would like custody of his children. Following counsels' arguments, the juvenile court sustained counts (b)(1) and (j)(1) (amended to reflect inappropriate discipline instead of physical abuse), (b)(2), (b)(3) (amended to add Father's "current" drug use) and (b)(4), and dismissed counts (a)(1), (b)(5) and (g). It declared the children dependents of the court pursuant to section 300, subdivisions (b) and (j).
Proceeding to disposition, the juvenile court denied reunification services for Mother. On the other hand, the juvenile court ordered that Father receive reunification services, including participation in a drug rehabilitation program with random testing, parenting and fatherhood classes and individual counseling. He was permitted monitored visitation three times per week. In the context of discussing the possibility of some of the children requiring assistance for developmental delays, the juvenile court remarked that it was "pretty sure [Father is] going to change his life around and do what he needs to do to get his children back and be a responsible father." But, the juvenile court also admonished Father that because of the children's young ages, he was entitled only to six months of reunification services. If the children could not be returned to him at that point, the court explained that his reunification services could be cut off and a plan developed that would include termination of his parental rights.
Review Hearings.
The Department's August 5, 2009 review report first outlined the contact it had with Father before the May hearing. At that point, Father was living in a cluttered home with friends and was planning to apply for general relief. The report indicated that before being ordered to do so, Father had agreed to enroll in a drug program with random testing and receive individual counseling. He had also enrolled in a parenting class. After the May 6, 2009 hearing, Father had contacted the Department to see whether he could have longer visits two times per week due to the distance he needed to travel for the visits. He had begun parenting classes and counseling, and was looking for a suitable place to live so that the children could live with him in the future. In June 2009, Father reported that he had not used drugs so that he could have his children returned to him, and that all his drug tests had been clean. He was still looking for appropriate housing. He outlined some things he had been learning from his parenting classes, including appropriate discipline and potty training techniques. In July 2009, Father was still looking for appropriate housing that he could afford. He reported that he remained drug-free. His parenting class had ended, and his teacher recommended that he look for a more "hands-on parenting class" to follow up.
Josephine reported that Father's visits were going well, though he often left early and seemed uncomfortable caring for Isabella, still a young baby. She expressed concerned about Father wearing necklaces with beads that she believed were a choking hazard for Isabella. By July 2009, Father was still somewhat uncomfortable with Isabella; he would not change her diaper and passed her to Josephine when she became fussy. Josephine also expressed concern about a small train piece Father had given Isabella, as she believed it was another choking hazard.
At the August 5, 2009 review hearing, the juvenile court commended Father's progress and commented that he seemed on the right track for return of his children.
During the next three months, Father continued to test negative for drugs, indicating that he was trying to surround himself with sober, supportive people. His visits, though still monitored, were positive and he was working with Josephine to increase his knowledge of and comfort in parenting. He was still looking for employment and housing. His counselor reported that Father was conscientious and demonstrating healthy ways of coping with the stresses of unemployment, housing and child custody issues. Though the Department did not believe it was appropriate for the children to be returned to Father at this point, it reported that "[o]nce father has stable employment, an appropriate residence, can demonstrate his ability to provide a safe environment for his children, complete his drug program, complete counseling, and show that he can remain sober, it would be appropriate for his children to be returned to him."
At a November 4, 2009 hearing, the juvenile court continued Father's reunification services. It permitted Father to take the children to spend Thanksgiving and Christmas with his family. It also directed the Department to assist Father with finding suitable housing and with obtaining a parenting partner in order to help him with his hands-on parenting skills.
Section 388 Petition and Twelve-Month Review.
On April 1, 2010, Father filed a section 388 petition seeking unmonitored visitation. He asserted that since the order for monitored visitation he had complied with his case plan to complete parenting and individual counseling, and he remained in drug treatment with consistently negative tests. He further asserted that the proposed change would benefit the children because they enjoyed the visits and unmonitored visitation was an important step in the reunification process. The juvenile court set a hearing on the petition.
In response to the petition, the Department prepared a review report for the May 5, 2010 hearing and simultaneously submitted a status review report. It recommended denial of the section 388 petition. Though not contained in its November 4, 2009 report, the Department now reported that on October 30, 2009 Josephine observed Father making inappropriate statements to the children about them returning home with him. She heard father ask Nathaniel if he wanted to come live with him, and when he said "'no,'" Father reportedly told him that he would be all alone because Vincent and Isabella were going to live with him. Josephine recalled another incident that had occurred in November 2009, where Father appeared not to have control of the boys and in an effort to discipline Nathaniel told him that he could not come live with him. Josephine reported that in March 2010 Father made similar comments to the children about them coming to live with him. Per Josephine's statements, the Department reported that Father's statements were emotionally detrimental to the children and could cause confusion. The Department attempted to evaluate Father's home for the possibility of overnight visits, but Father denied the social worker access.
Josephine also reported that Father had cancelled the Thanksgiving visit and that following a Christmas Eve visit, Isabella had not received a new bottle of formula all day and the boys only drank soda. Father then cancelled his visits for one week in early January and for three days in mid-February. In April 2010, Father reported that he got along better with the boys than Isabella, and that he was tired after the visits. In its status review report, the Department acknowledged that Father was in full compliance with his case plan with the exception of enrolling in a hands-on parenting class or obtaining a parenting partner. Nonetheless, emphasizing that Father had not demonstrated appropriate parenting skills and had not obtained employment or suitable housing, the Department recommended the termination of reunification services. The parties agreed to a single contested hearing on both the section 388 petition and the Department's recommendation.
Last minute information from the Department on May 13, 2010 reported that an assessment showed a high risk of harm or neglect if the children were returned to Father. The Department cited several reasons for its conclusion, including that Father continued to deny the Department access to his current residence; he had failed to find employment or suitable housing; he failed to enroll in any type of hands-on or parenting partner program; and he had made inappropriate comments to the children about their returning home.
At the combined hearing on May 20, 2010, social worker Amy Lopez, who had been assigned to the case in February 2010, testified that Father had completed drug rehabilitation, individual counseling and a parenting class, and had no positive drug tests. He had not complied with a court order to obtain a parenting partner, but she had located a program for him and she thought he was being assessed. She had provided him with housing referrals. She testified that Father continued to pose a risk to the children because he had denied her access to his home, had been unable to find employment and had made inappropriate remarks to the children as recently as March 2010 about them returning home.
Father testified that he had been attending Los Angeles Trade-Technical College, but left in November 2009 because the social worker advised him he needed to get a full-time job. He followed up on all the Department referrals in an effort to find a job. The last time he had a stable job was June 2008. He used the $220 per month he received in General Relief to pay for all his programs. Currently, he lived with his friend and the friend's father, and denied refusing access to social worker Lopez. But, Father conceded that his current housing situation was not appropriate for the children, as there would be only one room for all of them and his friend was on parole. He had joined a five-year waiting list for Section 8 housing. He also investigated assistance through CalWORKs, but he needed to have his children placed with him to qualify.
Father planned to resume school in June 2010, working on an Associate Arts degree in animation. For childcare, he would take the boys with him to school and his grandmother would watch Isabella. Father did not know where any unmonitored visitation would take place, if permitted. Assuming the logistics could be worked out, counsel for the children had no objection to Father's having unmonitored visitation for two hours per week.
The juvenile court found that return of the children to Father would create a substantial risk of detriment, as he did not have regular and consistent housing or work that would allow him to care for a three, two and one-year-old; he did not have transportation; and he did not have Department-approved day care. The juvenile court further found that Father had made significant progress in his case plan and found a substantial probability that the children could be returned to him by the 18-month review date. The court directed the Department to get Father into a hands-on parenting class, though Father advised he was already registered. It also gave the Department discretion to allow unmonitored visitation and directed the Department to work with Joseph, Josephine and Father to develop a safe and efficient visitation schedule. Finally, the juvenile court directed Father to either enroll in school or obtain a job, and find suitable housing. The court commented: "This young [m]an is trying the best that he can. I don't know whether he can do it or not do it. But he's going to give it his best shot and I think we need to support him in that."
Eighteen-Month Review.
The Department's report for the September 16, 2010 hearing indicated that Father had tested positive for cannabinoids, once in mid-August and once in early September. Father denied smoking marijuana or being around others who smoked marijuana. Though the Department reported that Father had inconsistently attended his parenting class, Father had demonstrated an ability to parent the children, including Isabella. Father had obtained a job selling cutlery and was attending trade school. He was still living with a friend and the social worker—who was permitted inside—observed the home to be cluttered with items that would be potentially hazardous to young children. The Department found a high risk to the children if returned to Father and recommended that reunification services be terminated. Father opposed the recommendation and the juvenile court set the matter for a contested hearing.
The Department provided last minute information for the court before the November 1, 2010 hearing, which indicated that Father had not appeared for drug testing since the last hearing. Father reported that a friend of his, who was also a father, had committed suicide. As a result, Father was experiencing increased feelings of anxiety and had difficulty sleeping and eating. He denied using drugs to cope with the situation. The social worker had observed a visit by Father on October 29, 2010, where Father responded appropriately to the children. Father was also taking a child development class every Saturday from 8:00 a.m. to 3:00 p.m. Josephine reported that Father had difficulty focusing on all three children during a visit.
On November 1, 2010, after admitting the Department's last two reports into evidence, the juvenile court terminated reunification services and set the matter for a section 366.26 hearing. The court observed that Father had failed to alleviate the reason that the children were taken into custody in the first place. Father did not challenge the order by extraordinary writ.
The juvenile court did not admit into evidence a September 16, 2010 letter from Josephine which expressed some concerns about Father, nor is there any indication in the record that the juvenile court relied on the letter at the hearing. Accordingly, we grant Father's motion to strike the letter from the record and we decline to consider any arguments in the respondent's brief that rely on the letter.
Termination of Parental Rights.
The Department had conducted a concurrent planning assessment as early as December 2009 that recommended adoption, and Joseph and Josephine's home study had been approved in May 2010. Josephine reported that Father had been visiting inconsistently, but that his visits seemed "'more relaxed'" and he had stopped making comments about the children returning home. The Department recommended that Father's and Mother's parental rights be terminated and the children be placed for adoption.
At the initial date set for the section 366.26 hearing, February 28, 2011, Father indicated that he intended to raise the beneficial relationship exception to termination of parental rights. (See § 366.26, subd. (c)(1)(B)(i).) When the juvenile court asked for an offer of proof, Father indicated that he intended to testify that the children recognized him, they were happy to see him, and he believed they wanted to live with him. Though the juvenile court expressed skepticism as to whether Father would be able to make the showing required for application of the exception, it continued the hearing for two weeks.
Father testified at the March 14, 2011 permanency planning hearing. He explained that his relationship with Isabella was going well and that she was happy when they were together. During visits she would smile; they watched movies together and played with her toys. When he would ask her who her dad was, she would point to him and she called him "dada." At the end of a visit she would give him a kiss and say "bye." He had been visiting only once per week because he had to take three buses to get to the visit and it took about three hours each way. Father further stated that even though he was not close to Nathaniel or Vincent initially, he saw his future in his daughter and thought she was starting to know who he was and starting to care.
Both the juvenile court and Father's counsel attempted to begin a line of questioning about whether Joseph and Josephine would continue to permit Father to visit the children, but each objected to the other's questions. After receiving into evidence the Department's last two reports and listening to counsels' arguments, the juvenile court terminated Mother's and Father's parental rights, concluding that no exception to termination existed.
Father appealed.
DISCUSSION
Father challenges the termination of his parental rights on several grounds. Though we can understand Father's frustration with several aspects of the reunification process, as well as with several comments by the juvenile court that unnecessarily minimized the efforts that Father made during that process, we find no basis for reversal.
I. Substantial Evidence Supported the Juvenile Court's Determination That the Beneficial Relationship Exception Did Not Preclude the Termination of Father's Parental Rights.
A. Applicable Law.
"'After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a "placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]"'" (In re Jason J. (2009) 175 Cal.App.4th 922, 935.) At the section 366.26 permanency planning hearing, the juvenile court must select adoption as the permanent plan and terminate parental rights, if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 49.) If the child is likely to be adopted, adoption is the plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826; In re Edward R. (1993) 12 Cal.App.4th 116, 122.)
An exception to adoption exists where a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "A beneficial relationship is one that 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' [Citation.]" (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) As explained in In re Angel B. (2002) 97 Cal.App.4th 454, 466, a parent seeking application of the exception must defeat a strong legislative preference for adoption: "To overcome the preference for adoption and avoid termination of the natural parent's rights, the 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. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile 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. [Citation.]"
Father bore the burden to establish both elements of the beneficial relationship exception. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) On appeal we look for substantial evidence, viewing it "most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.]" (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.) Moreover, "[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
B. Father Failed to Meet His Burden to Show the Beneficial Relationship Exception Applied.
To warrant application of the beneficial relationship exception, Father had the burden to show both that he "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) At the section 366.26 hearing, the juvenile court commented that Father "has barely visited." The record was to the contrary. Though Father had occasionally cancelled a prearranged visit, he regularly visited the children once or twice weekly throughout the pendency of the case. (See In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537 [regular visitation and contact shown by mother's weekly visits during dependency case, consistent with the extent of visitation permitted by court order].) Toward the end of the case, his visits had decreased to one time per week, as he conceded that it was difficult to travel three hours each way for the visits.
Nonetheless, even where a parent maintains regular visitation and contact, the overriding concern is whether the benefit gained by continuing the relationship between the biological parent and the child outweighs the benefit conferred by adoption. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact between a parent and child may be insufficient to establish the required benefit. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418, 1419.) A parent must show that he occupies "'a parental role' in the child's life." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Stated another way, the parent must show that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, at p. 575.)
Substantial evidence supported the juvenile court's determination that Father failed to show continuing his relationship with the children outweighed the benefit of adoption. Although Father had taken care of the children before they were detained in March 2009, he had not engaged in the "consistent, daily nurturing that marks a parental relationship" for over two years. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Moreover, while the evidence was undisputed that the children enjoyed Father's visits, there was no evidence that the emotional attachment between Father and the children was that of a parent and child rather than one more akin to that of a friendly visitor or other relative. (See In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Indeed, the type of beneficial relationship that is sufficient to overcome the preference for adoption is typically difficult to establish where the parent "essentially never had custody of the child nor advanced beyond supervised visitation." (Ibid.)
We are guided in large part by the considerations which led the court in In re Angel B., supra, 97 Cal.App.4th 454 to conclude that the beneficial relationship exception did not apply. There, although the mother of two-year-old Angel initially did not receive reunification services, during the course of the dependency case she enrolled in a residential drug treatment program, consistently tested clean for four months, completed certain classes, obtained employment and had regular, positive visits with Angel. (Id. at p. 459.) Evaluating several factors to determine the beneficial nature of the relationship between the mother and Angel, the court concluded that: "(1) Angel is very young, too young to understand the concept of a biological parent; (2) she has spent relatively few hours visiting with Mother, versus many hours being parented by the foster family; (3) Mother and Angel's interactions have been positive, but nothing in the record indicates that, from Angel's point of view, the interactions were particularly like those of a child with her mother; and (4) there is no evidence that Angel has any particular needs that can be met by Mother but not by the foster family." (Id. at pp. 467-468.) Here, similarly, the children were too young to understand whether Father was their biological father; they had spent relatively few hours with Father as compared to their time with Joseph and Josephine; though Father's visits were regular and appropriate, there was no evidence that Father had assumed the role of a parent with the children; and Father did not show that any of the children's needs were unmet by Joseph and Josephine.
We do not find the circumstances here akin to those in In re S.B., supra, 164 Cal.App.4th 289, a case relied on by Father. There, three-year-old S.B. was removed from her parents' custody because of substance abuse. The evidence showed that during the next two years while the case was pending, S.B.'s father visited three times per week and S.B. maintained a strong attachment to her father, exhibiting unhappiness when his visits ended. (Id. at pp. 293-295.) S.B. often initiated physical contact with her father and expressed a desire to live with him. (Id. at pp. 295, 298.) The social worker characterized S.B. and her father as having a "strong attachment," and a bonding study described their bond as "fairly strong." (Id. at pp. 296, 298.) The appellate court concluded there was substantial evidence to support the juvenile court's conclusion that the beneficial relationship exception applied. S.B. continued to display a strong attachment to her father throughout the proceedings, and the court reasoned that "a child could not develop such a significant attachment to a parent without the parent's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]" (Id. at pp. 298-299.) The court determined that the record fully supported "the conclusion [father] continued the significant parent-child relationship despite the lack of day-to-day contact with S.B. after she was removed from his care. [Citation.]" (Id. at p. 299.)
Importantly, the In re S.B. court evaluated the parent-child attachment from S.B.'s perspective, explaining that "[t]he exception may apply if the child has a 'substantial, positive emotional attachment' to the parent. [Citation.]" (In re S.B., supra, 164 Cal.App.4th at p. 299; see In re C.F. (2011) 193 Cal.App.4th 549, 558-559 ["S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact"].) Here, there was no evidence that any of the children had a substantial, positive emotional attachment to Father. While the children enjoyed father's visits, there was no evidence that they had difficulty concluding the visits or that they desired more frequent contact with him.
Indeed, the bulk of Father's argument as to why he demonstrated a benefit from continuing the relationship with his children focuses on Father's compliance with his case plan. Father argues that his case plan progress made him a better parent. While we commend Father for the effort he exhibited in attending parenting classes and receiving hands-on assistance, the focus of the beneficial relationship exception is not on the parent. As explained in In re Jasmine D., supra, 78 Cal.App.4th at p. 1348, "the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. The section 366.26, subdivision (c)(1)[(B)(i)] exception is not a mechanism for the parent to escape the consequences of having failed to reunify."
"A child who has been adjudged a dependent of the juvenile 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. [Citation.]" (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Here, while the evidence established that Father maintained regular visitation and contact, Father failed to demonstrate that his relationship with the children was so significant that it outweighed the Legislative preference for adoption. Substantial evidence supported the juvenile court's determination that the exception provided in section 366.26, subdivision (c)(1)(B)(i) was inapplicable.
II. The Juvenile Court Terminated Father's Parental Rights According to Appropriate Criteria and Preferences.
Father next contends that the order terminating his parental rights should be reversed because the juvenile court improperly relied on his lack of suitable housing as the only basis for termination and expressed an improper preference for adoption at the outset of the case. We find no basis for reversal.
A. Lack of Suitable Housing Was Not the Sole Basis for Termination of Parental Rights.
Father argues that his failure to obtain suitable housing was a primary obstacle preventing placement of the children with him and, in turn, a primary consideration leading to the termination of his parental rights. Preliminarily, he contends that he could have obtained suitable, low-cost housing if he had been provided with adequate assistance from the Department. To the extent Father is now attempting to claim lack of reasonable services—an issue never raised below—he is too late. (E.g., In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365, fn. 6 [because "'"'[t]he law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them,'"'" challenge to reasonableness of services waived where parent never complained to the social services department or the court]; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810 [precluding challenge to the reasonableness of reunification services, as "[f]ailure to preserve an issue in the trial court by means of an appropriate request ordinarily will preclude a party from raising the point on appeal"].)
In any event, we find no merit to Father's claim on the merits. While Father's lack of appropriate housing was a concern throughout the pendency of the matter, the juvenile court assumed jurisdiction on the basis of an allegation that Father's marijuana use put the children at risk. Though Father had long periods free from drug use, ultimately, he did not alleviate conditions that existed at the inception of the case. At the time of jurisdiction, Father had been arrested and incarcerated for being under the influence. Before the 18-month review hearing, Father tested positive twice for cannabinoids and refused to acknowledge his relapse. Thereafter, he missed the remainder of his drug tests. After Father's reunification services had been terminated, the considerations which ultimately motivated the juvenile court to terminate parental rights were that the children were adoptable and no statutory exception to termination existed.
These circumstances are unlike those in In re P.C. (2008) 165 Cal.App.4th 98, where the mother had completed all her services and the social services agency conceded that "mother has corrected all the problems that led to the juvenile court's assertion of jurisdiction over the children" (id. at p. 105) and "mother's housing situation was the only thing preventing the children from being returned to mother's care." (Id. at p. 101.) Given that the mother had completed her case plan and corrected her behavior, the court concluded that a finding of detriment could not be based solely on mother's inability to locate and afford suitable housing. (Id. at pp. 106-107; accord, In re G.S.R. (2008) 159 Cal.App.4th 1202, 1215 [finding of detriment against non-offending presumed father cannot be based on poverty alone, observing "[i]t makes no sense for the government to subsidize the care of a child by relatives or strangers but not his presumed father, even though the sole impediment to placing the child in that parent's custody is the parent's dire financial condition"].) Here, in contrast, considerations beyond the lack of suitable housing led to the termination of Father's parental rights.
B. The Juvenile Court's Early Expression of a Preference for Adoption Does Not Warrant Reversal.
Father next contends that the juvenile court's consistent expression of a preference for adoption was prejudicial and essentially created a presumption at odds with the dependency scheme. We disagree.
At the original date set for the jurisdiction hearing, Father was not present because he was incarcerated; the juvenile court knew very little about him. Joseph and Josephine were present, having been favorably evaluated for placement by the Department. The juvenile court asked them a question: "These kids are two, one, and two months. I'm not looking for somebody who's going to do legal guardianship and keep a case open for 18 years. That is not permanency to me. Permanency to me, is children adopted in a home and able to live their lives without having a social worker on their doorstep every single day. That's what it is to me. So what I'm looking for here is an adoptive home if the mother is not able to reunify with the children. Do you understand that that's what I'm looking for?" When they responded affirmatively, the juvenile court followed up by asking "And are you willing to agree to adoption at this point?" to which they responded "Yeah, we are prepared for that."
Though we recognize that the juvenile court was endeavoring to act in the best interests of three very young children, its inquiry was inconsistent with the principle that "'[t]he paramount goal in the initial phase of dependency proceedings is family reunification. [Citation.]' [Citation.]" (In re T.G. (2010) 188 Cal.App.4th 687, 696; see also In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1113 ["'"family preservation . . . is the first priority when child dependency proceedings are commenced"'"].) Nonetheless, viewing the comment in the context of the proceedings as a whole, we find no basis for reversal. (See In re Celine R., supra, 31 Cal.4th at p. 60 [in dependency matters, a judgment will not be set aside unless an error has resulted in a miscarriage of justice, meaning "the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error"].)
When Father first appeared for the jurisdictional and disposition hearing in May 2009, the juvenile court ordered reunification services for him. Although the juvenile court admonished Father that he was entitled only to six months of reunification services because the children were so young, the juvenile court ultimately provided him with an 18-month reunification period. During that period, the juvenile court was supportive of Father's progress, commenting at the first review hearing that Father was doing a "good job," he was on the "right track," and the court was "looking at return," which was unusual for children so young. In May 2010, the juvenile court continued reunification services in the face of the Department's request to terminate services, commenting that Father was "a young man who is striving and doing what he can [who deserved] to at least get the full amount of time that we're capable of giving him."
It was only after the Department reported that Father had two positive drug tests and stopped appearing for further tests that the juvenile court withdrew its support. At that point, the juvenile court terminated reunification services and set the matter for a section 366.26 hearing. "Once reunification services are ordered terminated, the focus shifts to the needs of dependent children for permanency and stability. [Citation.] A section 366.26 hearing is designed to protect these children's compelling rights to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child. [Citation.] If, as in this case, the children are likely to be adopted, adoption is the norm." (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) Thus, at that stage of the proceedings, the juvenile court's focus appropriately shifted to adoption. In view of the juvenile court's support of Father during a lengthy reunification period, we cannot conclude that this result would have been any different in the absence of the court's premature comment.
In perhaps an expression of frustration with Father's relapse, the juvenile court commented that "Father has done pretty much absolutely nothing on his case plan," which was a characterization unsupported by the record. A later comment at the next hearing about the frequency of Father's recent visits—"Once a week. Wow"—was similarly uninformed.
III. The Juvenile Court's Inquiries at the Permanency Planning Hearing Did Not Violate Father's Due Process Rights or Inject an Improper Factor into the Proceedings.
At the end of Father's testimony at the section 366.26 hearing, the juvenile court first asked him whether he got along well with the children's current caretakers, to which he responded that he did, and then asked him whether he thought they would continue to allow him to see the children. Before Father answered, his counsel objected, which the juvenile court characterized as "unbelievable." Father's counsel then resumed his questioning and asked Father whether he "would you like to have the protection of a court-ordered visit plan to ensure that contact continues?" Counsel for the children objected on grounds of relevance and the juvenile court stated: "At this point, sustained. That's what I tried to ask the Father but I wasn't permitted to do that. So, at this point, sustained. Mr. Edge, you're asking the question you told me not to ask."
Father portrays this exchange as a violation of his due process rights, analogizing the juvenile court's isolated inquiries to those circumstances where no counsel appeared for the Department and bench officers served as both judge and advocate. (See, e.g., Gloria M. v. Superior Court (1971) 21 Cal.App.3d 525, 527 [due process violation where social services department had no representative or attorney present during jurisdictional hearing, and referee examined and cross-examined witnesses, ruled on objections and adjudicated petition]; Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 899, 902-903 [same]; see also In re Jesse G. (2005) 128 Cal.App.4th 724, 729-730 [applying same due process analysis to adjudication of juvenile delinquency petition]; In re Ruth H. (1972) 26 Cal.App.3d 77, 86 [same].) Each of these cases involved the absence of counsel for either the Department or the prosecution, such that "[t]he dual obligations placed on the referee . . . violated appellant's constitutional right to procedural due process. [Citations.]" (In re Jesse G., supra, at p. 730.) The In re Jesse G. court emphasized that "[j]ustice is better served by requiring counsel or a trained representative to appear on the petitioner's behalf." (Id. at p. 731.)
On this record, we cannot conclude that the juvenile court's two questions about Father's relationship with Joseph and Josephine and the possibility of visitation amounted to a due process violation. Unlike the cases on which Father relies, the Department had independent representation at all times, and juvenile court did not assume the role of both advocate and judge. Father attempts to buttress his due process argument by referring to the juvenile court's early comments about the caretakers' possible adoption, arguing that the juvenile court interfered with his due process rights from the outset. Again, though the juvenile court on occasion made some harsh comments to Father which failed to accord him credit for the progress that he had made, the juvenile court supported Father's reunification efforts throughout the majority of the case, until his positive drug tests. The record as a whole reflects both actual fairness as well as the appearance of justice. (In re Jesse G., supra, 128 Cal.App.4th at p. 729.)
Finally, we find no merit to Father's contention that the juvenile court's question about whether he believed Joseph and Josephine would permit him to visit amounted to the improper consideration of an unenforceable promise of future visitation. The circumstances here were unlike those in both In re C.B. (2010) 190 Cal.App.4th 102, 127-128 and In re S.B., supra, 164 Cal.App.4th at page 300, where the juvenile courts had determined that each parent satisfied the beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i), but terminated parental rights because of the prospective adoptive parents' willingness to allow continued visitation and contact. As explained by the In re S.B. court: "We do not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." (In re S.B., supra, at p. 300.) The In re C.B. court elaborated, determining that "the juvenile court injected an improper factor into the weighing process, namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother" and emphasizing that once parental rights have been terminated, "a substantial, positive emotional attachment between a child and a parent has no legal protection even if depriving the child of that attachment by disallowing contact would greatly harm the child." (In re C.B., supra, at p. 128.)
Here, the juvenile court determined that Father had not shown that the beneficial relationship exception applied to prevent the termination of his parental rights. Thus, the juvenile court was not trying to protect a relationship that was sufficient to satisfy the statutory exception. Rather, the juvenile court ruled that Father's continuing his relationship with his children did not outweigh the benefit of permanence through adoption. The juvenile court considered the quality of Father's relationship with the children—not any suggestion of a promise of future visitation—in deciding to terminate his parental rights. The record fails to support Father's assertion that the juvenile court's visitation inquiry played a role in its decision.
DISPOSITION
The order terminating Father's parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J.
We concur:
BOREN, P. J.
CHAVEZ, J.