Opinion
A149301
02-27-2017
In re L.B., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. E.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV150124)
E.B. (father) appeals an order terminating his parental rights with respect to his now four-year-old daughter, L.B. (the minor). Father claims the court abused its discretion in finding the beneficial relationship exception to termination of parental rights did not apply. We affirm.
Background
On June 26, 2015, the Humboldt County Department of Health and Human Services (the department) filed a juvenile dependency petition on behalf of the minor. The petition alleged under Welfare and Institutions Code section 300, subdivision (b) that the parents maintained a dirty home and that father was a substance abuser who had recently been incarcerated for physically assaulting the paternal aunt. The petition alleged further under section 300, subdivision (g), that father had not made a plan of care for the minor upon his incarceration.
All statutory references are to the Welfare and Institutions Code.
At the detention hearing held on June 29, 2015, the minor was removed from father's custody and placed in foster care. After a contested jurisdiction hearing on August 12, 2015, the petition was sustained as to father under section 300, subdivisions (b) and (g). At the uncontested dispositional hearing on September 8, 2015, the minor was removed from her parents' custody and continued in her foster placement. Reunification services were ordered for father and father was provided four hours of visitation each week.
At the contested six-month review hearing on March 28, 2016, the court found father had made minimal progress in his case plan and terminated his reunification services and set the matter for a section 366.26 hearing. The social worker's report prepared for the review hearing indicated that father generally had attended most of his visits between August 2015 and January 2016 but that he had made no progress on his case plan. The report indicated that father missed 50 percent of his visits in December 2015, was more than 30 minutes late on several occasions, and sometimes left the visits early. He had only one visit while incarcerated in January and February 2016. The court-appointed special advocate also reported father had missed numerous visits and would occasionally leave the visits and return with a friend, sometimes appearing to be under the influence of an intoxicant.
The social worker's report filed in advance of the section 366.26 hearing recommended terminating father's parental rights and adopting a permanent plan of adoption with the current caregivers. The social worker reported that father had continued to visit his daughter after the termination of his reunification services. He maintained "a regular schedule of visits" with his daughter and attended her special education sessions. He "acted appropriately and has been on time" for the visits and assisted his daughter's teacher during his daughter's special education sessions. However, he "made no progress toward reunifying with [the minor] and was constantly involved in criminal activity." The report stated that while father took some "initial steps to address his addiction issues" by entering a residential treatment program, he "left his residential program at 60 days, and almost immediately relapsed after leaving. The father was also arrested for a violation of his probation on or about [June 1, 2016] and prior to being arrested the father had tested positive for methamphetamine and THC. Given the father's chronic addiction issues and his continued involvement in criminal activity there is no substantial probability of him being able to provide [mine] with permanency."
At the section 366.26 hearing held on July 20, 2016, father objected to the termination of his parental rights and asserted the parent-child bond exception under section 366.26, subdivision (c)(1)(B)(i). The juvenile court found the minor was adoptable and terminated both parents' rights to the child. The court found that the parental bond exception did not apply. The court explained that while father had maintained appropriate visitation, his visitation was not regular because of his own behavior and that in any event, it would not be in the child's best interest to interrupt the stability that she has with her fost-adopt parents.
Father timely filed a notice of appeal.
Mother has not filed an appeal of the order terminating her parental rights.
Discussion
"At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) "Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (In re S.B., p. 297.) Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
In reviewing a decision to terminate parental rights, we uphold the juvenile court's factual findings so long as they are supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The determination of whether termination of parental rights would serve the child's best interest will not be reversed absent a clear abuse of discretion. (In re Eric B. (1987) 189 Cal.App.3d 996, 1005; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 ["A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption."].)
"When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental 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.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [" 'Interaction between [a] natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.' "].)
In this case, father has not established that his visitation was regular or that the termination of parental rights would be detrimental to the minor. In his opening brief, father admits that he missed "some visits" due to his incarceration but argues that he otherwise established regular visitation despite the interruptions. Father's repeated incarceration, however, does not eliminate the necessity that the parent maintain regular visitation to invoke the parental bond exception. As the department notes, during the initial reunification period father appeared and remained throughout the visit in "less than fifty percent of the opportunities available to him." Accordingly, substantial evidence supports the finding that father's visitation while appropriate, was not regular.
More importantly, we find no abuse of discretion in the trial court's determination that the best interests of the child require preservation of her stable placement with the foster parents. Contrary to father's argument on appeal, there is no evidence that he occupied a "parental role" in relationship to the child such that termination of parental rights would be detrimental. (In re Beatrice M., supra, 29 Cal.App.4th. at p. 1419.) The minor was just shy of three and a half years old at the section 366.26 hearing and had been out of her father's care for over a year. Prior to her removal, the minor had lived at times with father, but also with her mother and grandparents while father was incarcerated. As the court appointed special advocate observed, as a result of her instable placements, the minor was "very confused about who her parents are, as she calls several people by names that indicate 'mom' and 'dad.' " Although his visits with the minor were described by the social worker as generally "positive," nothing in the record establishes the type of bond that would justify application of the exception. (In re G.B. (2014) 227 Cal.App.4th 1147, 1165 [" ' "[I]t is only in an extraordinary case that preservation of a parent's right will prevail over the Legislature's preference for adoptive placement." ' "].)
In contrast, the child's relationship with the foster parents was described as "loving," "close" and "bonded" and the social worker reported that the child turned to her foster parents for "comfort and support." The record fully supports the juvenile court's determination that the relationship between father and the minor, based upon the limited amount of supervised time they spent together, simply did not outweigh the bond between the minor and the foster/adoptive family. That family undisputedly wished to adopt the minor and had demonstrated the ability to provide a stable, healthy, and loving home for her. There was thus no error in the termination of parental rights.
Disposition
The order terminating parental rights is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.