Opinion
C044268.
10-7-2003
In re ANGEL A., a Person Coming Under the Juvenile Court Law. GLENN COUNTY HUMAN RESOURCE AGENCY, Plaintiff and Respondent, v. PALEMON S., Defendant and Appellant.
Palemon S., father of the minor, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, § 366.26.) Appellant contends the court abused its discretion in finding the minor would not benefit from continuing contact with him. We affirm.
FACTS
Angel was first removed from parental custody in January 1999 and returned in August 2000 after successful reunification. In May 2001, at age two, the minor was again removed due to petitioners alcohol abuse and the ongoing domestic violence in the home. After more than 18 months of reunification services, appellant failed to reunify with the minor. Despite extensive services, appellant still had to be encouraged to interact with the minor during visits. The court terminated services and set a section 366.26 hearing.
The report for the section 366.26 hearing stated the minor was in good health and developing normally. He was very attached to his foster parents and had some negative reaction to visits with appellant. During the bi-monthly supervised visits, appellant displayed little actual involvement with the minor, preferring to observe the minor playing or to watch videos with him. However, the visits were pleasant and included some conversation about the minors interests and activities. According to the report, appellant lacked parenting skills and had no bond with the minor. The state Department of Social Services assessment, which accompanied the social workers report, recommended termination of parental rights with a permanent plan of adoption.
At the hearing, the parties submitted on the report, presenting no additional evidence except for documentation of appellants ongoing participation in services. Appellant argued he had continued to participate in services and wanted the minor returned to his care. The court terminated parental rights and found no benefit to the minor in continued contact with appellant.
DISCUSSION
Appellant contends the court abused its discretion in finding continued contact would not benefit the minor because the evidence showed appellant maintained regular visitation and the visits were positive.
"`At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 1463(d)(3); Evid. Code, § 500.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (& sect; 366.26, subd. (c)(1)(A).) The benefit to the child must 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. 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 parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Appellant did not meet his burden. The evidence established appellant maintained regular contact with the minor, but did not show that there was a "substantial, positive emotional attachment" between appellant and the minor. At best, the interaction could be characterized as that of a friendly visitor. The lack of a significant attachment was due not only to appellants inadequate, albeit earnest, attempts at parenting, but also to the fact that appellants ongoing struggles with his own problems meant that much of the minors life had been spent with another family which had provided him the stable, secure home to which he was entitled. Under the circumstances, the court could not have found that termination of parental rights would be detrimental to the minor. No abuse of discretion appears.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P.J., and HULL, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.