Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP015831, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lisa A, DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel for Plaintiff and Respondent.
No appearance for the Minor.
MOORE, J.
Rodney A. (the father) appeals the termination of his parental rights to his daughter, A. He contends the court erred by finding that she was adoptable and that the benefit exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply. Because neither of these contentions has merit, we affirm the order.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
We summarize the facts with our focus on the issues most pertinent to the appeal. Amy T. (the mother) passed away in February 2009, and therefore our attention is primarily on the father.
Detention
A., who was seven at the time, was taken into protective custody in August 2007, after the mother reported to the Orange County Social Services Agency (SSA) that she was using methamphetamine and was unwilling to care for the child. When contacted by SSA, the father admitted that he too had a history of drug use and was aware of the mother’s drug use while A. was in her care. He lived in a motor home without running water at the time. A. was placed with her godparents Don P. and Lisa K.
Jurisdiction Hearing
The jurisdiction/disposition report discussed a history of child abuse reports dating back to 2000 in Los Angeles County, alleging general neglect and the sexual abuse of A. by an unknown perpetrator. A. continued to live with her godparents, who she said were “like her parents since she was a baby” and have always been good to her. She did not like to visit with her father, because he would hit her and scream at her. His motor home did not have running water or toilet facilities. She did not want to live with the father, but she did miss him.
The father told SSA that at the time A. was born, he was doing “a lot of drugs and I was in and out of jail.” He married the mother shortly before A. was born, and he said they separated due to the mother’s continued drug use after he cleaned himself up. He saw his daughter when he could. He was aware that Don and Lisa cared for A., but was opposed to any adoption.
The court sustained the petition. At the continued disposition hearing, SSA reported that the father had been approved for overnight visits, but the home where he was living with his ex-wife was not authorized due to numerous problems. The father admitted taking A. to the home without permission. A. made it clear to the social worker that she did not want to visit her father at his house, telling her that he yelled and cussed at her, and she did not like going to his ex-wife’s house. In particular, she did not want to see his nephew, who “once did inappropriate things to me before.” She said that while she did not mind going once in awhile, she did not want to go every weekend. At the conclusion of the hearing, the court declared A. a dependent and ordered reunification services for the father.
Six-Month Review
At the six-month review, SSA recommended continued services for the father. SSA expressed concern that the father had resisted enrolling in services, denying that he had any problems. He continued to visit A. with some regularity, but he would call the day of the visit and sometimes not arrive at the time he said he would. A.’s caretaker reported that the visits would at times consist of minimal interaction between the father and A. The father would also become easily frustrated with A. and not tend to her needs during visits. He did not call between visits to speak to A. or to check on her welfare.
During this period, A. continued to do well in her placement. In April 2008, the court ordered continued services for the father and set a 12-month review hearing.
12-Month Review
Starting in April 2008, Jeannette Peterson, a social worker, began monitoring the father’s visits with A., which took place once or twice a week. Thirty-nine total visits were scheduled, and the father attended 20. At the first visit, A. asked Peterson not to leave the father alone with her, because he “tells her to shut up and one time he hit her.” Some concerns arose over the father’s discipline; on one occasion, he threatened to “pop” A. for being disrespectful, and on another, he became upset, raised his voice and slammed his hands on the table. Peterson also noted that during some visits at a library, the father had minimal interaction with A., leaving her with other children while he searched the Internet.
A. continued to express her desire to stay with her godparents. At the hearing, the court ordered continued services and set an 18-month review.
18-Month Review
In October 2008, the father attended a therapy session with A., but the therapist and A.’s psychiatrist suspended further joint therapy because it caused A. severe anxiety. The psychiatrist reported that during the session, the father told A. she was coming home with him, and there was nothing anyone could do about it. She began to report nightmares about her father taking her away, and experienced difficulty sleeping, poor school performance, and difficulty concentrating. In therapy, A. expressed fear that the father would remove her from her placement. The psychiatrist opined: “While a father-child relationship is important, [A’s] present psychological vulnerability does not appear to make positive contribution to her healthy development.” The psychiatrist felt that she would improve in her present environment, and reunification might be attempted later in life.
The father’s visits during this period remained supervised, and Peterson noted that he often arrived late or ended visits early. He attended 15 of 20 scheduled visits, and the visits mostly went well. At times, however, during visits at the library, the interaction between A. and the father would be minimal. Further, the father sometimes caused A. anxiety by telling her that she had no control over her placement, despite the monitor’s advisements not to discuss the issue.
The father completed a parenting class and attended individual counseling from August to November. He missed a number of drug tests, which were deemed positive, and in March 2009 he tested positive for opiates. He was unemployed and continued to reside in a camper in his ex-wife’s backyard.
The father claimed the positive test was the result of medication prescribed for the flu, but did not submit documentation as SSA requested.
A. continued to live with her godfather, Don, and stated that she wanted to remain there. She received counseling and behavioral services for numerous problems, including anxiety and posttraumatic stress disorder. Don began attending parenting classes to better understand A.’s diagnosis and her needs, and he expressed an interest in providing a permanent placement for her if services were terminated.
In February 2009, A. was informed that her mother had died. Don stayed in contact with A.’s doctors, who monitored her grieving process. The father did not call to check on A., and he missed his next visit to attend a concert in Las Vegas.
Also during this period, Lisa informed the court that she and Don had separated. From all appearances, matters between Don and Lisa had not ended well. Lisa offered herself as a potential adoptive parent.
At the March 2009 hearing, SSA recommended terminating reunification services. The father appeared in court and agreed to SSA’s recommendation to terminate services and set a hearing pursuant to section 366.26. At the hearing, the father said he was “happy with the way everything’s going” and that he just wanted to be part of his daughter’s life. The court terminated services and set a section 366.26 hearing. Don was granted de facto parent status.
Section 366.26 Hearing
In the report prepared for the section 366.26 hearing, SSA recommended terminating parental rights and finding that A. was adoptable. In the permanency planning assessment, SSA noted that A. had no medical concerns, was doing well academically, and developing at an age appropriate rate. She was participating in behavior therapy and taking steps to improve her socialization with other children. She continued to work on her mental and emotional issues and was taking medication as prescribed by her psychiatrist. Her psychiatrist and therapist described her problems, including difficulty following directions, completing tasks, making and keeping friends, and sleep problems due to nightmares. They stated that during treatment, A. had made substantial progress in addressing her socialization skills with her peers, and that her nightmares had decreased. She was less easily distracted and her concentration had improved, as evidenced by her recent report card. She did, however, continue to have anxiety episodes when with the father, when anticipating and after visitation, and when anticipating change, such as the school year ending. They felt that she needed to continue to address her grief over the loss of her mother and a number of other issues, but felt that with a continued stable environment, she should continue to improve.
For her part, A. stated that she wanted to be adopted by Don. She had been in his home since detention. Don wanted to adopt A., and the preliminary assessment described him as having a good understanding of the responsibilities of adoption and firm in his commitment to adopt A. A full home study had yet to be completed. The assessment noted that Don had received a kidney transplant in 2007, but Don’s doctor recommended him as an adoptive parent, stating that he had no disorder that would impact his life expectancy or his ability to function as a parent. SSA also noted that Don had one arrest in 1985 for criminal conspiracy and grand theft, which Don described as being the result of a bad business partnership. Don pled no contest, paid back all the money owed, and received one year of probation. He had no history of child abuse reports or complaints about the quality of care as a foster parent. SSA described Don as capable of meeting A.’s emotional and physical needs, and committed to providing A. with a permanent and loving home.
With respect to the father, SSA summarized his history of visitation. He had attended 73 of 94 scheduled visits, and as noted above, most visits were appropriate, although some problems were reported. Some of the father’s statements regarding A.’s placement caused her anxiety, and she told the father on several occasions that she did not want to live with him. All of the father’s visits since October 2007, shortly after A.’s detention in August 2007, were monitored or supervised.
On June 12, the father submitted a letter to the court, stating that he agreed with what Don was offering, but as father to his child he did “want more.” He stated that all he was asking was the ability to take A. to church once a week or at least once every two weeks. He stated that he just wanted everyone to be happy.
At the section 366.26 hearing, the father appeared in court and submitted on SSA’s recommendation to terminate parental rights. The court found by clear and convincing evidence that A. was adoptable and that none of the exceptions set forth in section 366.26, subdivision (c)(1)(B) applied. The court further found that termination of parental rights would not be detrimental, but was in A.’s best interests. Accordingly, the court terminated the father’s parental rights and freed A. for adoption. The father now appeals.
Both SSA’s report and the hearing transcript indicated that attempts were made to reach a consortium agreement, but apparently this was not completed.
II
DISCUSSION
Adoptability
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204 (Jerome D.).) “‘“Clear and convincing” evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]’ [Citation.]” (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) On appeal, we review the juvenile court’s decision for substantial evidence. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
The issue of adoptability focuses on the child, specifically, whether the child’s age and physical and emotional condition are likely to make it difficult to find an adoptive placement. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The father argues that A. is not adoptable due to her age and emotional problems, and because Don faces substantial impediments to adoption.
The father analogizes this case to Jerome D., supra, 84 Cal.App.4th 1200. In that case, the child had a close relationship with his mother, and a prosthetic eye that required care and treatment. (Id. at p. 1205.) The prospective adoptive parent had a history of domestic violence with the child’s mother, and had not yet completed an application for adoption or undergone an initial assessment. (Id. at pp. 1203, 1205.) The court found a lack of adoptability based on the assessment’s failure to consider the child’s relationship with his mother, but only considered the prospective adoptive parent’s willingness to adopt. This was not, the court held, sufficient evidence of adoptability. (Id. at p. 1205.)
This case is different. A., unlike the child in Jerome D., has neither a medical problem or a strong bond with a living parent. While she had emotional problems, they were being addressed, and her prognosis with continued treatment and a stable environment was quite positive. The father complains that there were no families with approved home studies standing ready to adopt A., but that is not required. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (Id. at pp.1649-1650.)
The record demonstrated that A. was physically healthy and a good student, and her emotional and mental health was improving with treatment. Nothing in the record here indicates that A. could not be adopted by another family if Don was ultimately unable to adopt her. Indeed, Lisa had indicated that she was interested in adoption as well. While Lisa had her own issues and might not be approved as an adoptive parent, her willingness to adopt A. is further evidence that A.’s age and emotional issues do not preclude finding an approved adoptive family within a reasonable time.
Thus, with respect to the father’s claim that Don faces impediments to adoption, they are not especially relevant because A. is generally adoptable. The court properly found there was clear and convincing evidence of the child’s adoptability, and there is substantial evidence to support that finding.
Further, those arguments are not particularly persuasive. While Don had medical issues, he had demonstrated his ability to care for A. since detention, and his physician recommended him as an adoptive parent. His criminal record was unrelated to A.’s care, fairly remote in time, and eligible for exemption for purposes of adoption.
Benefit Exception
The father argues the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(B)(i), typically known as the benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence rule. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Ibid.)
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing by the parent that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) The parent must prove a substantive positive emotional attachment such that the child would be “greatly harmed” if deprived of the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)
The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The quantity of contact must be considered within the context of the visitation the parent is permitted. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) The required showing, however, is difficult to make when the parent has never moved beyond supervised visitation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
While the father arguably maintained regular visitation, any claim to a parental role is doubtful. SSA reported that the father often had minimal interaction with A. during the visits. While the visits were appropriate and pleasant, there was nothing to indicate a true parental relationship. To overcome the strong policy favoring adoption, a parent must demonstrate he was more than a friendly visitor to the child. (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
But even if we find the visitation and contact was sufficient, the court must also determine whether a child would benefit from continuing the relationship with the parent, balancing “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., supra, 27 Cal.App.4th at p. 575.) In determining the existence of a beneficial relationship, we look to “[t]he 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....” (Id. at p.576.)
The evidence here comes nowhere close to establishing that A. would be deprived of a “substantial, positive emotional attachment such that the child would be greatly harmed” by severing the connection between she and the father. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Unlike the children in the cases the father cites, the record reflects no strong and lasting bond between A. and the father.
Indeed, there was substantial evidence that the visits with the father caused more harm than good, as A. often suffered significant anxiety and nightmares as a result. She did not want to live with the father, but with Don, and she wanted Don to adopt her. Her anxiety while she was with the father was enough for her therapist to discontinue joint therapy. It would border on the absurd to find that any benefit A. enjoyed from the weekly monitored visits with the father outweighed her need for a stable, permanent home. Further, none of the evidence suggested that A. had such a strong emotional connection to the father that she would suffer in “great harm” if it was severed. The court did not err in concluding that the benefit exception did not apply.
III
DISPOSITION
The order is affirmed.
WE CONCUR: SILLS, P. J.FYBEL, J.