Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. DP009900, Dennis J. Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman and Ronald Gold for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Hugh S. appeals from the termination of parental rights to his daughter, Antonia S. He complains he was denied due process in earlier proceedings that are no longer subject to appellate review. He also challenges the juvenile court’s refusal to find that Antonia’s relationships with him and with her half siblings were so strong that termination of parental rights would be detrimental to her. We affirm the judgment.
FACTS
In March 2004, Antonia was detained based on sexual abuse by her father and his “history of drug-related behaviors.” The father was incarcerated shortly thereafter. Antonia, then six years old, was adjudicated a dependent of the juvenile court and placed in the foster home of T. and Sean B.
Antonia’s mother, Tina M., has a long history of drug abuse, arrests and incarceration. The father also has a history of criminal activity. The parents were never married and never lived together. The father apparently took Antonia into his home when she was four months old due to the mother’s drug abuse. The mother told the social worker she and the father both had joint physical and legal custody of Antonia, and the child went back and forth between homes. The mother lived in Anaheim, where Antonia’s school was, and the father lived in Rialto.
Antonia’s mother also had a long history with the Orange County Social Services Agency (SSA). She had four children from a previous relationship before Antonia was born: Krystal M., born in November 1985; Jonathan M., born in August 1987; Ashley M., born in July 1989; and Justin M., born in May 1991. All four children were declared dependents of the juvenile court when Justin was born with a positive drug screen for cocaine. These children continued to be in and out of dependency proceedings until the time Antonia was detained. Ashley was declared a ward of the juvenile court and was released to her mother’s care shortly before Antonia was detained.
The father remained incarcerated until September 2005. During that period of time, Antonia underwent therapy, where she expressed her fear and loathing of her father. She consistently told the social worker, her foster parents, and her therapist that she did not want any contact with him. The father declined visits while he was incarcerated.
The father was released from prison shortly before the 12-month review hearing. The court ordered six more months of reunification services and monitored visits. Antonia complied with the visits, but continued to object to any contact with her father. Despite weekly therapy, she expressed increasingly negative feelings to her father. Her therapist reported Antonia’s behavior had been steadily regressing since the visits started. “In spite of this therapist’s efforts to present Hugh as a father who loves his daughter and wants a relationship with her, Antonia consistently expresses extreme reluctance and fear. Her rejection has not wavered over the 14 months of therapy.”
At the 18-month review hearing, held in July 2006, the juvenile court terminated reunification services and set a permanent plan selection hearing. Visits were reduced from weekly to monthly pending the hearing. The father filed a writ petition (Cal. Rules of Court, rule 8.450 et seq.) challenging the court’s orders. We denied relief in an unpublished opinion (Hugh S. v. Superior Court (Nov. 9, 2006, G037437)).
In the report prepared for the permanent plan selection hearing, SSA reported the monthly visits were not going well. In August 2006, Antonia refused to get out of the car and ended the visit after ten minutes. In September, the father brought his out-of-town relatives to the visit. Antonia played with her eight-year-old cousin and talked to the relatives, but “avoided eye contact with her father and stayed close to the monitor.” The October visit was at a Wal-Mart store; Antonia’s interaction with her father consisted of “telling [him] what she wanted.” He bought her some items and she ended the visit after 25 minutes.
Antonia’s therapist reported that “the child continues to reject her father and generally refuses to discuss her past when she was in his care.” The therapist observed that Antonia’s behavior was drastically different after visits with the father. “[T]hese differences include more regressive, childlike behaviors, higher anxiety and increased agitation.”
The permanent plan selection hearing was set for late November 2006, but the father retained private counsel and was granted a continuance to January 2007. At the request of Antonia’s counsel, the juvenile court suspended visits pending the continued hearing because they “would be detrimental to Antonia.” At the outset of the hearing in January, the juvenile court considered each parent’s petition to reinstate reunification services and return Antonia to parental custody. (Welf. & Inst. Code, § 388.) The court found the father’s petition did not make a prima facie case and denied the petition without a hearing. It granted a hearing on the mother’s petition, ultimately denying it on the merits.
All statutory references are to the Welfare and Institutions Code.
The court took testimony from Antonia, the social worker, and the mother, which was used for both the mother’s modification petition and the permanent plan selection hearing. Antonia testified she liked to see her siblings, but once a month was often enough. She would like to see more of her mom, but she did not want to live with her. Her overriding desire was to be adopted by the B.’s, and if that meant she could not see her mother or her siblings, that would be fine. Under no circumstances did she want to see her father. She had no pleasant memories of her life with him, although she testified “he like gave me nearly anything I needed” and he “pretty much” bought her whatever she wanted. Antonia repeatedly described him as “mean” because he yelled at her and “he spanks me real hard.”
The social worker testified she was assigned Antonia’s case in December 2005. During the two years, Antonia had visits with her siblings three times. When asked why more visits weren’t provided, the social worker replied, “Sibling visitation wasn’t part of the case plan, and the child never expressed an interest.” Antonia never mentioned her siblings during the monthly meetings she had with the social worker. The social worker did not feel the sibling relationships were important to Antonia because “[s]he hasn’t really had a relationship with her siblings. She’s never lived with her siblings. They are much older. She has some curiosity, but I don’t feel that’s a primary goal for her.”
The father testified he and Antonia had an affectionate relationship during the time he had custody of her. He agreed that his daughter was “everything” to him. He felt they had a bond “because I’m her father, I can give her parental love, which nobody else can do except her mother. It may not mean much to her today but eventually it will.”
The juvenile court found “there is simply not a bond between . . . Antonia and her father that would warrant . . . the [Welfare and Institutions Code, section 366.26, subdivision] (c)(1)(A) exception. [¶] . . . [T]he burden of proof in these instances [is] on the parents. . . . [¶] . . . [The father] has been indeed persistent in his attendance at these proceedings, and his desire and love and affection for his daughter is striking, and it’s clear. The court, however, notes that the bond that is of significance is the child’s attachment to the parent, and that it is at this juncture that the evidence . . . fails for [the father]. The court also found there were not “existing and close and strong bonds” between Antonia and her half siblings such that ongoing contact was essential to her long term emotional interest.
The juvenile court found Antonia was adoptable and that none of the exceptions applied. Accordingly, it terminated the parental rights of the mother and the father.
DISCUSSION
The father first complains he was denied his due process right to visitation with Antonia “as a direct result” of “governmental refusal” to transport him to the 6-month hearing while he was incarcerated. This refusal to transport him resulted in many continuances of the hearing, which unreasonably delayed the process, which “virtually ensure[d] the erosion and termination of a meaningful relationship, and thus deprived [the father] of his ability to prove benefit from a continuing relationship under [Welfare and Institutions Code section] 366.26[, subdivision] (c)(1)(A).”
The subdivisions of section 366.26 were renumbered as a result of legislation effective January 2008. The benefit exception, formerly codified in subdivision (c)(1)(A), is now subdivision (c)(1)(B)(i). The sibling exception, formerly codified in subdivision (c)(1)(E), is now subdivision (c)(1)(B)(v).
We need not attempt to parse the father’s argument, because he raises claims that are no longer subject to appellate review. At both the 6-month and 12-month review hearings, the juvenile court found the father had been offered reasonable reunification services, which includes approval of the visitation orders. The father did not seek appellate review of these rulings, and the time to do so has long since passed. At the 18-month review hearing, the juvenile court found the father had been offered reasonable services and terminated reunification efforts. The father sought appellate relief from that order, which was denied. “[A]n appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order . . . .” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151.)
The father relies on In re Hunter S. (2006) 142 Cal.App.4th 1497 to support his argument that the termination of parental rights must be reversed if meaningful visitation is denied. In Hunter S., the juvenile court had made a visitation order, but the child refused to visit her mother. The juvenile court failed to enforce the visitation order despite the mother’s insistence. At the termination hearing, the juvenile court found the mother failed to prove the requisite contact to invoke the beneficial exception to termination. The appellate court reversed, finding the juvenile court’s failure to enforce its visitation order deprived the mother of any chance to establish contact with her son. Here, the father refused visits during his incarceration; after he was released, he received weekly visits. Although the visits were often short, Antonia went to the visits and interacted with her father. He was not denied visitation.
The father next argues the juvenile court erroneously failed to find that the termination of parental rights should be obviated due to the strength of Antonia’s relationship with either her father or her half siblings. The record overwhelmingly supports the juvenile court’s findings to the contrary.
The Legislature has mandated that after a child is found adoptable, the termination of parental rights and adoption is the best plan to ensure the child has “a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citations.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 306; see also In re Celine R. (2003) 31 Cal.4th 45, 52-53.) The juvenile court can avoid terminating parental rights to an adoptable child only if it finds a compelling reason to conclude that termination would be detrimental to the child due to one of several statutorily described circumstances. (§ 366.26, subd. (c)(1)(A) – (F).) The parent has the burden to establish that an exception applies by a preponderance of the evidence. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.). We review the juvenile court’s decision for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
“Under [former] section 366.26, subdivision (c)(1)(A), the court may forgo adoption and refrain from terminating parental rights only if a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such 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. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449, internal quotations omitted.)
There is virtually no evidence in the record to support the father’s argument. Antonia had been in the dependency system for over three years by the time parental rights were terminated. During that entire time, she consistently and adamantly said she did not want to live with her father, or even see him. This was not just the whim of a small child; in weekly therapy she expressed fear of her father and became agitated and regressive when discussing him. It is clear Antonia derived no benefit from the relationship.
The sibling exception allows the juvenile court to avoid the termination of parental rights if it finds a compelling reason that termination would be detrimental to the child because “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
Again, there is virtually nothing in the record to suggest there is any significant bond between Antonia and her siblings. Although Antonia enjoys seeing them, she testified her adoption by the B.’s was more important. The juvenile court weighed this casual relationship against the benefits of adoption and properly refused to apply the exception.
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.