Opinion
E053708
11-17-2011
In re M.V ., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMEN OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.O., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWJ009879)
OPINION
APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant C.O. (Father) appeals the termination of his parental rights under Welfare and Institutions Code section 366.26 as to his minor son, M.V. (the minor) (born March 2010). Father contends the trial court erred when it found the parental benefit exception in section 366.26, subdivision (c)(1)(B)(i), did not apply, because he maintained regular visitation and shared a bond with the minor that outweighed the benefits of adoption.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On March 9, 2010, the Riverside County Department of Social Services (DPSS) filed a petition pursuant to section 300, subdivision (b), failure to protect; and subdivision (g), no provision for support. The petition alleged that neither Mother nor Father could provide adequate care for the minor, because they abused controlled substances, and Father was incarcerated. It was also alleged Mother had unresolved mental health issues. Mother and the minor both tested positive for methamphetamines at the time of the minor's birth. The juvenile court ordered the minor detained on March 10, 2010. He was placed in a foster home with his older, half-sibling, who was also detained.
Mother advised the social worker that Father had been living with her until he was arrested about three weeks prior to the minor's birth. According to Mother, Father was arrested for not completing court-ordered drug treatment and was scheduled to be released in July 2010. Mother also told the social worker she and Father used methamphetamine together frequently throughout her pregnancy. Father had an extensive criminal history dating back to 1997 for drug-related offenses and domestic violence. He told the social worker his relationship with Mother was "'focused around the drugs.'"
On April 29, 2010, the juvenile court sustained the allegations in the petition, ordered reunification services for Mother and Father, and approved a case plan. The case plan required Father to participate in parenting education, as well as substance abuse testing and treatment. Supervised visitation with Father was ordered upon his release from prison. The court also ordered DPSS to provide Father with referrals for parenting classes he could complete during his incarceration. However, due to restrictions at the jail, the social worker was unable to provide Father with approved materials. Father did complete part of a parenting program offered at the jail, even though it did not satisfy this component of his case plan.
On July 18, 2010, Father was released from custody. At that time, he began twice weekly supervised visits with the minor and, as of the social worker's report dated October 18, 2010, Father had visited consistently. During visitation, Father fed, changed, and interacted with the minor. During the reporting period, the social worker referred Father to a parenting education program, but he was unable to attend. Father was also referred to substance abuse treatment programs and was placed on random testing. Thereafter, he tested negative on three different occasions, but was unable to begin substance abuse treatment.
In the report prepared in anticipation of the six-month review hearing, the social worker said Father "failed to make any progress towards his case plan goals, continues to demonstrate gaps in parenting skills, and does not have stable or appropriate housing." Therefore, the social worker reported placement with Father would put the minor at risk. For those reasons, the social worker recommended termination of reunification services.
On November 8, 2010, the court held a six-month review hearing and reduced visitation for the parents. Father's visitation was reduced to once per week for three hours. The court set a contested six-month review hearing for December 9, 2010.
In anticipation of the contested hearing, the social worker prepared an addendum report dated November 30, 2010. At that time, the social worker reported Father entered an inpatient detoxification program on November 8, 2010, which included follow-up treatment, participation in daily group sessions, attendance at AA/NA meetings, individual counseling, and parenting education. As of November 26, 2010, the program reported Father was compliant in all areas and displayed a positive attitude. After the inpatient portion of the program, Father requested continued visitation, and a visit was scheduled for December 2, 2010. However, the social worker reported Father was not in compliance with his case plan or the terms of his probation, and was unemployed. As a result, the social worker reiterated her recommendation for the termination of Father's reunification services.
On December 9, 2010, the court held a contested six-month review hearing. The court considered testimony from Father and several other witnesses. The purpose of Father's testimony was to persuade the court he made enough progress to justify another six months of services. Despite Father's testimony, the court found Father's progress in alleviating or mitigating the causes necessitating placement was unsatisfactory, because he failed to make substantive progress or complete the case plan. In addition, the court concluded there was no probability of return of the minor to the parents if they were given another six months of services. As a result, the court terminated reunification services for the parents and set a section 366.26 hearing to consider the termination of parental rights, and a permanent plan. The court also reduced the parents' visitation to once per week for two hours.
At the section 366.26 hearing on April 7, 2011, the court concluded the parental benefit exception did not apply, and terminated parental rights. The court also found the minor was likely to be adopted, and adoption was in the minor's best interests. The current caretakers were given preference over any other application for adoption.
DISCUSSION
Father argues the trial court erroneously concluded the parental benefit exception in subdivision (c)(1)(B)(i) of section 366.26 did not apply because Father maintained consistent visitation with the minor and had positive interactions with the minor during visits. According to Father, he visited the minor twice per week for two hours and missed visits were rare. He missed one visit due to a court hearing he had to attend and also missed some visits during a 20-day period when he was in a residential substance abuse treatment program. During visits, Father says he interacted positively with the minor, fed him, and changed him. The minor did not cry or have any other negative reaction at the end of visits.
In pertinent part, the beneficial relationship exception set forth at section 366.26, subdivision (c)(1)(B)(i), provides as follows: "[T]he court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
"'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 52.) If the child is adoptable, "the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified [exceptions] provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (Id. at p. 53.) Adoption is the preferred permanent plan for an adoptable child, because the child has a compelling right "to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R., supra, 31 Cal.4th at p. 53.) "We must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) "We determine whether there is substantial evidence . . . by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.]" (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)
For the exception to apply, the parent must show "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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App. 4th 567, 575.) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (Id. at pp. 575-576.)
Here, the court concluded the parental benefit exception did not apply and it would not be detrimental to the minor to terminate the parents' rights. In reaching its decision, the court acknowledged Father maintained regulation visitation with the minor. However, the court concluded Father did not meet his burden of showing it would be detrimental to the minor to terminate parental rights. Nor did Father show that the benefit of continuing the relationship outweighed the benefits of adoption. In support of its decision, the court indicated "positive interaction" and "incidental contact" during visitation were not enough, standing alone, to justify applying the exception. Based on Father's prior testimony at the six-month review hearing, and his statements in court during the section 366.26 hearing, the court concluded Father was "barely functioning." As a result, the court did not believe Father's relationship with the minor was enough to promote the minor's well-being to the extent necessary to outweigh the benefits of adoption. The court also noted the social worker's reports suggested the paternal grandmother's interactions with the minor during visitation were more beneficial to the minor than those with Father.
As Father contends, "[t]he benefit of continued contact between [the parent and the child] must be considered in the context of the very limited visitation [the parent] was permitted to have" during the proceeding. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) It is also not necessary, as Father contends, for a parent to show the minor has a "'primary attachment'" to him. (In re S.B. (2008) 164 Cal.App.4th 289, 299.) "When a child cannot be returned to the physical custody of a parent, we expect the child has developed or will develop a secure parental relationship with his or her primary caregiver. . . ." (Id. at pp. 299-300.) On the other hand, as noted above, the parent must show a "significant, positive, emotional relationship" with the child in order for the exception to apply. (Id. at p. 300.) The focus is on the child's attachment to the parent, not the parent's attachment to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) "Some incidental benefit to the child" from the interaction with a parent during visitation is not enough. (Ibid.) Rather, there must be "a compelling reason" for the court to determine it would be detrimental to the child to terminate the relationship. (§ 366.26, subd. (c)(1)(B).)
The record does show regular visitation by Father once he was released from jail in July 2010, and some positive contact with the minor during visitation. However, there is nothing in the record to indicate that Father occupied a parental role in the minor's life, or that the minor had a "significant, positive, emotional relationship" with Father and would therefore be harmed by the termination of parental rights.
At the time Father's rights were terminated, the minor was one year old, had never lived with Father, and only began visitation with Father when the minor was about five months old. As the court mentioned, the social worker's reports indicate Father's relationship with the minor was "limited," and he appeared to lack focus on developing a relationship with his son during visits. In addition, as reported by the social worker, the paternal grandmother was present during visits and Father tended to defer to her at times rather than using the time to bond with the minor. Father did not object to the content of these reports by the social worker and presented no affirmative evidence of a "significant, positive emotional relationship" with the minor. In contrast, there is an abundance of evidence showing the minor had a strong attachment to the prospective adoptive family, and was thriving in their home. The prospective adoptive parents were very committed to adoption and to providing the minor with a permanent, stable home.
In sum, substantial evidence supports the juvenile court's conclusion the parental benefit exception does not apply under the facts of this case. There is simply no compelling reason to find termination of parental rights would be detrimental to the minor. In other words, this is simply not an extraordinary case where the preferred permanent plan of adoption should be derailed by the parental benefit exception in subdivision (c)(1)(A) of section 366.26. The advantages of a stable, permanent adoptive home for the minor clearly outweigh the benefits of a continued legal relationship with Father.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.