Opinion
B164085.
7-24-2003
In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHRISTOPHER B., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Melissa A. Chaitin, under appointment by the Court of Appeal, for Minor and Appellant. Lloyd W. Pellman, County Counsel, and Pamela S. Landeros, Deputy County Counsel, for Plaintiff and Respondent.
Christopher B. (Father) and his son, A.B. (born in March 1996), appeal from a December 18, 2002 order terminating Fathers parental rights and freeing A.B. for adoption. They challenge the sufficiency of the evidence supporting the findings that A.B. was adoptable and that Father did not establish the "beneficial relationship exception" to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). (Further statutory references are to the Welf. & Inst. Code.) We disagree and affirm the order.
Section 366.26, subdivision (c)(1) provides in pertinent part: "If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding under subdivision (b) . . . or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian 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 one or more of the following circumstances: [P] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
FACTUAL AND PROCEDURAL BACKGROUND
A.B. was in and out of the hospital with problems eating and sleeping until he was four months old. While A.B. was an infant, Father did not work outside the home and did most of the work of caring for A.B. and taking him to doctors appointments. In June 1997, when A.B. was about one year old, he was detained from his parents by the Department of Children and Family Services (DCFS) and placed in foster care after his 11-year-old half-sister, D.P., reported that she had been sexually abused by Father (D.P.s step-father). D.P. also reported that Father hit A.B.s four-year-old sister, F.B., with a belt.
In May 1999, the court sustained an amended petition declaring all three children dependents of the court. A.B. was declared a dependent child pursuant to section 300, subdivisions (a), (b), (c), (d), and (j). The jurisdictional order was based in pertinent part on findings that Father sexually abused D.P., hit both D.P. and F.B. with a belt, and that Mother and Father engaged in domestic confrontations, both verbal and physical, in front of the children on more than one occasion. The July 12, 1999 dispositional order removed the children from parental custody. The case plan required Father to attend domestic violence counseling, sex abuse counseling, individual counseling to address issues of anger management, and parent education.
A.B. was described as an "easy-going baby" who had some developmental delays and was not walking or talking by age two. By June 1998, A.B. had been in two foster homes; Father did not visit him from October 1997 to January 1998. When A.B. was hospitalized in June and July 1998 for seizures, Father visited A.B. in the hospital. In July 1998, A.B. was placed in a foster home for medically fragile children and began making significant developmental gains so that by April 1999, he had not had any more seizures and was walking and talking. A.B. also began receiving Regional Center services and attended a special school program.
Father was afforded monitored visits with A.B. of one hour twice a month. Two or three times a month, A.B. also visited with D.P. and F.B., the girls having been placed together in the same foster home. During Fathers monitored visits with A.B. at the foster family agency office in October 1998, Father was verbally hostile to the social worker so his visits were moved to the DCFS office. Father also refused to accept any referrals for services and had not completed any programs as of April 1999. From July 1999 to December 1999, Father visited A.B. about once a month. The social worker reported that Father appeared moody and uncomfortable during the visits and did not interact with A.B. A March 1999 evaluation by a clinical psychologist diagnosed A.B., then three years old, with a developmental coordination disorder and a phonological disorder and recommended evaluation by a speech pathologist and enrollment in an appropriate preschool or school program.
By January 2000, Father had not enrolled in any court-ordered programs or counseling and denied the facts in support of the sustained allegations of the amended petition. A.B.s foster parent was interested in long-term foster care, but not adoption. By July 2000, Father had completed a parenting class, but no other court-ordered programs.
In October 2000, A.B. was placed in a new foster home with a foster mother, Mary H.; in December 2001, she indicated that she wanted to adopt him. In October 2000, A.B. also began receiving speech therapy and special education services, and by January 2001, A. B. was reported to be doing very well in Mary H.s home.
In January 2001, family reunification services were terminated and Father did not object to the permanent plan of long term foster care. Father and the paternal grandmother had monitored visitation with A.B. every other Friday. In December 2001, A.B.s foster mother said that she wanted to adopt A.B. Although Fathers visits had been going well, DCFS observed a visit in October 2001 where Father interacted with A.B. for only about half of the time.
A June 2002 adoption assessment stated that A.B. appeared to be healthy but had a seizure disorder that was controlled by medication, and he was developmentally delayed. A.B. also had temper tantrums and would bang his head, but he would stop when told to do so by the foster mother. He also attended a special school five days a week but would be sent home on occasion due to a failure to control his bladder. The foster mother told the adoption liaison worker that A.B. had made great improvements after being placed in her home. The assessment concluded that it was "likely" that A.B. would be adopted and identified the foster mother as the prospective adoptive parent. In July 2002, the court set a date for a section 366.26 hearing. In July 2002, DCFS also reported that Father was enrolled in the Child Sexual Abuse Program (CSAP), but he had attended only 36 of the 64 counseling sessions, participating on a limited basis in his group. The CSAP director considered his attendance unsatisfactory.
In November 2002, when A.B. had lived with Mary H. for about two years, the social worker reported that A.B. and Mary H. were very attached to each other; A.B. would cling to her during visits and appeared very secure and comfortable in her presence. He looked to her as a parental figure. Mary H. was a capable, loving parent who had raised four children of her own and had adopted other children in the past. DCFS also reported that Father continued to have monitored visits with A.B. every other Friday, but he did not interact with A.B. for the entire time of the visit. The foster mother was willing to continue A.B.s visits with Father and the paternal grandmother after adoption. The social workers report concluded that it was "highly likely that [A.B.] will be adopted by [Mary H.] if parental rights are terminated."
At the December 18, 2002 section 366.26 hearing, Father testified that during his visits in the last year, he would bring toys to A.B., read to him, and teach him to count and tie his shoes. Father also taught A.B. table manners and behavior. Father brought A.B. presents on his birthday and for Christmas. At the beginning of each visit, A.B. would run up to him, hug him, and call him "Daddy." In the last year, Father had visits with A.B. at McDonalds, Chuck E. Cheese, and the Lakewood Mall; the paternal grandmother would drive A.B. to and from the visits. In the last six months, A.B. would cry at the end of his visits and reach out from his car seat to try to touch Father. A.B. told Father that he wanted to live with him. Father also testified that when he was sick on two occasions last year and could not make the visits, A.B. would cry and wonder why Father was not there; he and his son had a bond and it would be emotionally detrimental to A.B. not to see Father anymore.
The juvenile court found by clear and convincing evidence that A.B. was adoptable, noting that "theres nothing to suggest that the child is not adoptable." The court also found that although Father had significant visits, it was unclear to the court whether the interaction had a positive or negative effect on the child, so "I cant say theres anything terribly significant about it." The court concluded that Father had not shown "that continuing the parent/child relationship would promote the well-being of this child to such a degree as to outweigh what the child will gain in a permanent home with new adoptive parents." The court also considered the factor that A.B. appeared to be a special needs child who for over two years had been placed with the same caretaker with the capability to deal with his special needs, and "thats not an easy thing to find in this day and age." The court determined that the "beneficial relationship exception" of section 366.26, subdivision (c)(1)(A) did not apply and terminated parental rights.
Both Father and A.B. appealed from the December 18, 2002 order terminating parental rights.
DISCUSSION
A. Adoptability Finding
Focusing on A.B.s developmental delays and the courts finding that A.B. was a "special needs" child, appellants contend that there was not clear and convincing evidence that he was adoptable. As noted by appellants, case authority states that the issue of adoptability focuses on the child and whether his age, physical condition, and emotional state make it difficult to find a person willing to adopt him, and it is not necessary that a proposed adoptive parent be waiting in the wings. (See, e.g., In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
The foregoing line of cases is not dispositive here, where there is a proposed adoptive parent who wants to adopt A.B. and who had been taking care of him for several years. Appellants cite no authority to support their implied assertion that the actual existence of a prospective adoptive parent, whose suitability was not challenged, is irrelevant to a determination of adoptability. Appellants also fail to point out that notwithstanding A.B.s developmental problems, A.B. was clearly capable of establishing loving and affectionate relationships and he was capable of learning and growing through special education programs and speech therapy. We conclude that substantial evidence supports the juvenile courts finding of adoptability.
B. Beneficial Relationship Exception
At a section 366.26 hearing, once DCFS has shown it is likely the child will be adopted, the burden shifts to the parent to prove that termination of parental rights would be detrimental to the child based on one of the exceptions enumerated in subdivision (c)(1). (In re Erik P. (2002) 104 Cal.App.4th 395, 401.) The exception in subdivision (c)(1)(A) requires proof of a substantial, positive emotional attachment such that the child would be greatly harmed if deprived of the parent/child relationship. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523.) "The court must balance 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. [Citation.] As explained in In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 . . ., the childs relationship must transcend the kind of relationship the child would enjoy with another relative or family friend. [P] That showing [is] difficult to make in the situation, such as the one here, where the parents have . . . [not] advanced beyond supervised visitation." (In re Jeremy S., supra, 89 Cal.App.4th at p. 523.)
To establish this exception, the parent has the burden of showing "either that (1) continuation of the parent-child relationship will promote 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], or (2) termination of the parental relationship would be detrimental to the child. [Citation.] Put another way, DCFS is not required to produce evidence demonstrating that a minor would not benefit from continued parental contact." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Appellants argue that A.B. had a close parent-child bond that developed during the first year when Father was raising A.B. and continued throughout the years of consistent visitation. They maintain that there was no need to terminate parental rights in light of that strong bond and that the permanent plan of long-term foster care should have been continued. We acknowledge that there was evidence that A.B. would derive some benefit from continued visits with Father. Yet such evidence does not establish the beneficial relationship exception, which required Father to establish that A.B. would benefit more from a tenuous placement and the continuation of his father-son relationship than from a more secure permanent placement with his adoptive parent.
Substantial evidence supports the juvenile courts findings that Father did not establish this exception. A loving relationship alone is not sufficient to satisfy the requirements of the exception. (In re Jeremy S., supra, 89 Cal.App.4th at p. 523.) Nor was there any hint in the record before the court that A.B. would be harmed in any way if his relatively brief but happy visits with Father were to end. (In re Angel B., supra, 97 Cal.App.4th at p. 468.)
Father contends that Kimberly Johnson, the social worker for A.B. since May 2000, was not qualified to render the opinion that A.B. should be adopted because she had had limited personal knowledge about the nature of Fathers relationship and visits with A.B. and she never communicated with Father about the case because Father threatened to sue DCFS when she first met him in May 2000. Father also complains that Johnson was unable to provide the court with critical information regarding the parent- child relationship. All of the foregoing points provide no basis to reverse the order. Even had the juvenile court disregarded Johnsons opinions, substantial evidence still supported the courts conclusion that the beneficial relationship exception did not apply.
Father also faults DCFS for restricting the nature and extent of his visitation, thus restricting the development of his relationship with A.B. Father refers to the history of his dealings with DCFS and the foster family agency from November 1998 to the time of the December 2002 hearing. To the extent that Father seeks to have us review prior court orders or the order terminating reunification services, such reviews are untimely. The matter also involves factual issues which were not raised at the time of the December 2002 hearing, so we decline to address them here.
DISPOSITION
The December 18, 2002 order is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.
A.B.s mother, Tracey P. (Mother), did not contest the termination of her parental rights and does not appeal from the order.(1):