Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J514833D, Yvonne E. Campos, Judge.
HALLER, J.
Sean S. appeals a judgment of the juvenile court terminating his parental rights to his minor daughter, C.R., under Welfare and Institutions Code section 366.26.
Statutory references are to the Welfare and Institutions Code.
OVERVIEW
C.R. became a dependent at birth after testing positive for drugs. C.R.'s mother, Demetria R., did not receive reunification services and the court scheduled a section 366.26 hearing. The San Diego County Health and Human Services Agency (the Agency) did not establish contact with Sean S., C.R.'s alleged father, until January 2008. After Sean failed to appear at an initial jurisdiction and disposition hearing, the Agency reestablished contact with Sean in February 2008. Sean requested an attorney and the court appointed him one in March 2008. Sean represented he did not make contact with his attorney until April 25, 2008. In May 2008 the court ordered a paternity test, and test results showed Sean to be C.R.'s biological father. The court ordered Sean to participate in visits with C.R.
In July 2008 Sean filed a section 388 modification petition seeking reunification services. In August 2008 the court ordered services but did not issue an order pertaining to the section 388 petition. The section 366.26 hearing remained on calendar throughout the reunification period.
In October 2008 the court terminated services and confirmed the section 366.26 hearing for December 2008. Before the start of the section 366.26 hearing, Sean filed a second section 388 petition, requesting C.R.'s placement in his custody or services. The court denied the petition and terminated Sean's parental rights.
Sean asserts the court denied his due process rights: (1) because procedural errors prevented him from participating in services, therefore making it difficult for him to establish he had a beneficial parent-child relationship with C.R.; and (2) when it terminated his parental rights without a finding of parental unfitness. Sean further asserts: (1) the court erred by denying his December 2008 petition for modification seeking reunification services; and (2) the court lacked sufficient evidence to support its finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating his parental rights. We affirm the judgment.
Sean filed a "Request to Change Court Order" (JV-180) that the juvenile court treated as a section 388 petition.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007 the Agency filed a petition on behalf of C.R. at birth after she tested positive for cocaine and marijuana. Demetria reported she was homeless and she did not provide the Agency with the name of C.R.'s father. Demetria's whereabouts became unknown and she did not appear at the detention hearing. The court detained C.R. and ordered her placed in foster care.
Social worker LaShawn White conducted a parent search and located Demetria in custody. Demetria identified Sean as C.R.'s father. Ms. White attempted to contact Sean but she was unsuccessful.
At an initial jurisdiction and disposition hearing, Demetria completed a Paternity Inquiry Form and named DeShawn W. [Sean] as C.R.'s father. Demetria reported that while pregnant she disclosed to Sean that he was C.R.'s father and that he was happy about it. Demetria never married Sean and he was not present at the hospital when C.R. was born. Sean did not sign a Declaration of Paternity and he did not provide child support. He had done nothing to claim he was C.R.'s father. The court added Sean's name to C.R.'s petition as an alleged father.
Ms. White established telephone contact with Sean on January 4, 2008. He confirmed he knew Demetria and could be C.R.'s father. Sean gave Ms. White his address. Ms. White told Sean about the upcoming jurisdiction and disposition hearing and sent him notice of the hearing.
The court held a jurisdiction and disposition hearing on January 16, 2008. Sean did not appear at the hearing. The court denied reunification services for Demetria based on her extensive history of drug abuse and her resistance to drug treatment. The court scheduled a section 366.26 selection and implementation hearing.
Agency worker Aubrey Sheetz established contact with Sean on February 11, 2008. Sean claimed he had not received any paperwork from the Agency regarding the process for retaining an attorney. He confirmed his mailing address with Ms. Sheetz and requested a paternity test to establish his relationship with C.R. Ms. Sheetz mailed information to Sean explaining how he could retain counsel. Sean also received notice of the section 366.26 hearing.
On March 11, 2008, Sean mailed the court a request for an attorney. The court held a special hearing on March 25, 2008, and appointed Sean an attorney. The court directed the newly appointed attorney to contact Sean. Sean contacted Ms. Sheetz on April 7 and April 25 to inform her he had not heard from his attorney. Ms. Sheetz contacted Sean's attorney and informed the attorney that Sean wanted to submit to a paternity test. On April 25, 2008, the attorney made contact with Sean and at a hearing a few days later, the court ordered Sean to participate in a paternity test. Sean's paternity test results showed he could not be excluded as C.R.'s biological father. The court amended the petition and designated Sean as the biological father and ordered supervised visits for Sean.
Sean visited C.R. and generally, visits were appropriate. Sean reported to the Agency social worker that he had attended one parenting class. He told the social worker that because the paternity test had confirmed he was C.R.'s biological father, he wanted custody of C.R.
In June 2008 Ms. Sheetz received a call from an unidentified woman. The woman stated Sean was a drug dealer and should not be allowed to have visits with C.R. The woman called the Agency a second time reporting the same information but her identity remained unknown.
In July 2008 Sean filed a section 388 modification petition. Sean requested that the court vacate the previously scheduled section 366.26 hearing and order reunification services for him. In August 2008 the Agency filed a report detailing Sean's extensive criminal history. Sean had 12 arrests and had served a four-year prison term for possession of narcotics for sale. Sean denied using drugs and claimed he violated his parole on one occasion. However, Sean's parole officer reported Sean had violated parole numerous times for using cocaine and marijuana, possession of marijuana and failure to register as a narcotics offender.
Ms. Sheetz believed Sean was not prepared to care for an infant. He did not have a proper home with the necessary baby supplies. Sean had enrolled in a parenting class but it was unknown as to whether he completed or continued to participate in the class. Sean enjoyed visiting C.R. and showed affection toward her. However, these visits were not enough to show he could properly care for or parent C.R.
At an August 2008 hearing, Sean requested that the court grant his section 388 petition, order services and vacate the section 366.26 hearing. The court ordered reunification services but it did not vacate the section 366.26 hearing. The court also ordered Sean to participate in on-demand drug testing, avoid drugs and alcohol, provide proof of the completion of his parenting program and participate in adequate visitations. The court continued the section 388 petition. Sean did not appeal from the court's order.
About one month later, the Agency requested that the court review the procedural posture of the case. The Agency argued because the court had ordered services for Sean, it had two options. The court could deem the case a reunification case, or alternatively, the court could keep the section 366.26 hearing on calendar. Maintaining the section 366.26 on calendar would require Sean to fund his own services. The Agency also submitted a report detailing Sean's visits with C.R. Sean had missed one third of his scheduled visits and he had neglected to contact C.R.'s caregiver about C.R.'s well-being and care. The Agency social worker did not have contact with Sean since the last hearing. The court did not issue an order based on the Agency's request. Instead, it continued the matter after finding Sean did not receive notice of the hearing.
In October 2008 the court considered Sean's July 2008 section 388 petition. The court denied Sean's request for services. The section 366.26 hearing remained on calendar. The court urged Sean to consider Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings in addition to seeking out entities that would provide him with drug testing at a lower cost. Sean did not file an appeal following the hearing.
In an addendum report, Ms. Sheetz reported Sean participated in visits on a weekly basis. Sean played with C.R., fed her and changed her diaper. In Ms. Sheetz's opinion, the relationship between Sean and C.R. was not parental, and their relationship did not outweigh the benefits of adoption for C.R. Although Sean showed love for C.R., he had not been able to provide for her emotional, financial or medical needs. C.R. had never lived with Sean and he had not progressed beyond supervised visits. At best, their relationship was more like a friendly visiting relative. C.R. had been living with her caregiver for more than eight months. Ms. Sheetz believed removing C.R. from the home she had lived in for more than eight months would be detrimental to C.R.
In December 2008 Sean filed a second 388 petition immediately before the start of the section 366.26 hearing. The court granted the request for an evidentiary hearing, to coincide with the section 366.26 hearing. Sean's petition requested placement of C.R. in his care. Alternatively, he requested the court grant him reunification services. As changed circumstances, Sean alleged he had established paternity, completed a parenting class and regularly visited C.R. He further alleged the requested change was in C.R.'s best interests because placing C.R. in his custody would allow her to be raised by her biological family.
Ms. Sheetz testified Sean had visited C.R. for about seven months and cancelled five visits. C.R. did not show signs of distress at the end of visits. Sean completed a parenting class and Ms. Sheetz evaluated Sean's home and it appeared appropriate for C.R. Ms. Sheetz believed Sean attended one NA meeting. C.R. continued to live with her caregiver. C.R.'s half sister also lived in the same home. Ms. Sheetz believed C.R. had a beneficial parent-child relationship with her caregiver and the caregiver met all of C.R.'s physical and emotional needs. The caregiver wanted to adopt C.R.
Sean testified he did not have knowledge about C.R.'s existence until after her birth. During the dependency period, he attended one NA meeting in November 2008. He did not drug test because he could not afford the tests. He further testified he remained sober and he did not understand why he would need to submit to drug tests or go to NA meetings. Sean claimed he never used drugs and had only possessed drugs. He admitted he had served time in jail for about three years in 2002 or 2004. Sean stated he had baby supplies in his home for C.R., but he did not plan to remain in the home for more than one month because he was going to move in with his wife. His wife had four children and was expecting a baby.
After considering the evidence and hearing argument of counsel, the court denied the section 388 petition. The court did not find Sean to be credible when he stated he did not have a drug problem. The court stated it was concerned with the fact Sean had an extensive criminal history, C.R. had never lived with him and that Sean had not been forthcoming about his wife and her family, and his obligations to his wife's children. The court found Sean had shown "some" changed circumstances but had not met his burden of showing that granting the petition was in C.R.'s best interests. The court also found C.R. was adoptable and none of the exceptions to adoption applied to preclude terminating parental rights. Sean had not maintained regular contact with C.R. and she would not benefit from continuing their relationship. Sean timely filed a notice of appeal.
DISCUSSION
I. Due Process Claims
Sean asserts the court violated his due process rights. First, he argues the court erred because it should have vacated the section 366.26 hearing. He claims he did not have the opportunity to adequately participate in services because the hearing remained on calendar. Second, Sean argues the court violated his due process rights by terminating his parental rights without making a specific finding regarding parental unfitness.
The Agency agrees the court committed procedural errors at the August and October 2008 hearings. However, the Agency argues Sean's challenges to the court's prior orders are untimely and further, any error committed by the court is harmless. We agree.
A. Background
In July 2008 Sean filed a section 388 petition requesting reunification services and that the court vacate the section 366.26 hearing. In August 2008 the court ordered Sean to participate in services that included drug tests, a parenting program and visits with C.R. Sean did not challenge the scope or adequacy of the services offered. The court also ordered Sean to cooperate with the Agency noting Sean had not disclosed his criminal history to the social workers. The court continued the previously scheduled section 366.26 hearing allowing Sean time to pursue the services. The court did not issue findings concerning the section 388 petition. It instead continued the section 388 to a later date. Sean did not appeal the court's order.
At a September 2008 special hearing, the court heard Agency's request to address the procedural posture of the case. The Agency requested the court either designate the case as a reunification case and vacate the section 366.26 hearing, or alternatively, find that Sean is responsible for funding his own services. The Agency represented it could not pay for services, such as drug testing, because the court had previously scheduled a section 366.26 hearing and the hearing remained on calendar. The court continued the hearing because it was unclear as to whether Sean had received notice of the hearing.
In October 2008 the court reconvened the special hearing. The Agency reasserted that the court either vacate the section 366.26 or require Sean to fund his own services. Sean's attorney indicated Sean could not afford drug testing services on his own. The court found that Sean had not made enough progress to justify vacating the section 366.26 hearing and denied services. The court confirmed the section 366.26 hearing for December 2008. The court urged Sean to continue services. Sean did not file an appeal.
B. Untimely Challenges to Prior Court Orders
First, we conclude Sean did not timely appeal the court's orders from the August or October 2008 hearings. Failure to file a timely notice of appeal deprives the appellate court of jurisdiction to consider an issue on appeal. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864; In re Pedro N. (1995) 35 Cal.App.4th 183, 190.) A postdisposition order that has not been appealed is final and binding and may not be attacked on appeal from a judgment terminating parental rights. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26; In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.) Permitting a parent to raise issues that challenge the validity of a final earlier appealable order directly undermines "dominant concerns of finality and reasonable expedition." (In re Meranda P., supra, 56 Cal.App.4th at p. 1152.) The court ordered services at the August 2008 hearing and continued the section 366.26 hearing. At the October 2008 hearing, the court denied Sean services and confirmed the previously scheduled section 366.26 hearing. Sean did not appeal from these orders and the time for doing so has long since passed. Thus, his present challenges to those prior court orders are untimely.
C. Procedural Errors
In any event, any error committed by the court is harmless. (See In re Claudia S. (2005) 131 Cal.App.4th 236, 251; Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515.) Sean had the opportunity to participate in services even though the section 366.26 hearing remained on calendar. The court ordered supervised visits in June and it ordered services in August. In doing so the court, in effect, granted Sean's July section 388 petition and should have vacated the section 366.26 hearing. As such, the court erred. (See In re James F. (2008) 42 Cal.4th 901, 915, 917-919; See also In re Celine R. (2003) 31 Cal.4th 45, 59.) In October 2008 the court heard argument concerning the July section 388 petition. The court denied services but urged Sean to continue pursuing services, including drug testing, NA meetings, visits with C.R. and parenting courses.
The Agency attempted to correct the court's error at a later hearing date. It requested the court to vacate the section 366.26 hearing. The court should have reviewed the procedural posture of the case at that time. It had the opportunity and ability to correct its mistakes but it did not. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097, 1105, fn. 4, 1107-1108.)
Although the section 366.26 hearing date should have been vacated when the court ordered services in August, Sean was not prejudiced by these procedural errors. The court specifically ordered Sean to participate in visitation, drug tests, enroll in a parenting program and abstain from a lifestyle involving drugs and alcohol. The court emphasized that the purpose of these services was to give Sean an opportunity to show he could properly care for C.R. if she was placed in his care. Except for funding the drug tests, Sean had the ability to participate in each of these services, and at no time during the proceedings did Sean complain about the scope of these services.
The court provided Sean with the opportunity to participate in services even though Sean was not entitled to services because he was deemed a biological father. (See In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 [status as a biological father does not entitle a parent to custody or reunification services].)
The record shows Sean availed himself to some services. He participated in a parenting class, but he did not participate in the other court-ordered services even those where no financial barrier existed. First, he did not submit to on-demand drug tests. Sean argues he could not afford to drug test, but he ignored the court's suggestion that he participate in AA or NA meetings as a way to show he was maintaining a drug-free lifestyle. Second, he misrepresented his criminal history to social workers by claiming that although he had sold drugs, he had not abused them. Sean's parole officer told the social worker that Sean had violated his parole by committing various infractions, including using cocaine and marijuana. Sean testified he did not have a drug problem and he did not understand why he needed to drug test. Third, Sean's living arrangements remained uncertain. Although he purchased baby items for his home and the social worker agreed his home was appropriate, Sean testified he would be moving in with his wife and her four children. There was nothing in the record to show what his future living arrangement might be and whether that arrangement would be appropriate for C.R. Finally, an Agency social worker instructed Sean to contact C.R. in between their scheduled visits. Sean did not maintain a relationship with C.R., telephone her or make any inquiries concerning her overall well-being outside of their visits together. Thus, the evidence shows Sean was provided the opportunity to participate in the court-ordered services to show that he could safely and permanently parent C.R. He did not fully avail himself to these opportunities. Even though the court committed procedural errors, such errors were harmless and no due process violations occurred.
D. Parental Unfitness
Sean asserts the court violated his due process rights when it terminated parental rights without a finding of parental unfitness. Before a juvenile court can terminate parental rights, due process requires a finding, by clear and convincing evidence, that the parent is unfit. (In re Gladys L. (2006) 141 Cal.App.4th 845, 847; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) However, no finding of unfitness was required to be made before Sean's parental rights were terminated because Sean was a biological father.
California's dependency scheme no longer uses the term "parental unfitness," but instead requires the court to make a finding that awarding custody of a dependent child to a parent would be detrimental to the child. (In re Cody W. (1994) 31 Cal.App.4th 221, 225-226; In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.) The Supreme Court has clarified that a finding of detriment is "the equivalent of a finding of unfitness" as to the child involved. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)
"The extent to which a father may participate in dependency proceedings... are dependent on his paternal status." (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) A biological father does not have the same due process rights of parenthood as a presumed father. A biological father is one whose paternity has been established but who has not achieved presumed father status under Family Code section 7611. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) Only a presumed, not a mere biological father, is entitled to custody and reunification services. (Id. at pp. 448-449.) A biological father may receive reunification services if the dependency court finds that services will benefit the child. (§ 361.5, subd. (c).) Further, a biological father's parental rights can be terminated based on a finding adoption is in the child's best interests. (Fam. Code, § 7664; In re Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 722; See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051-1052.) Here, the court initially designated Sean as an alleged father. After he established his paternity, the court modified his status to biological father. Sean's status did not rise to the level of a presumed father during the proceedings, and he did not seek presumed father status after services began. Sean remained a biological father throughout the dependency and a finding of parental fitness was not required. (Adoption of Arthur M., supra, 149 Cal.App.4th at p. 722.)
Sean asserts he should have been qualified as a presumed father in accordance with Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because he promptly stepped forward as soon as he learned about C.R.'s existence. Putting aside Sean's waiver of the Kelsey S. issue because he did not request a Kelsey S. finding below (In re Elijah V. (2005) 127 Cal.App.4th 576, 582), we conclude on the merits that Sean was not a Kelsey S. father. In that adoption case, the court recognized there are instances during which an unwed father may be thwarted in his attempts to establish presumed father status, such as when the mother unilaterally prevents it. (Kelsey S., supra, at p. 849; see also In re Sarah C. (1992) 8 Cal.App.4th 964, 972.) In such cases, the juvenile court "must consider whether [the biological father] has done all that he could reasonably do, under the circumstances" to show his commitment to parenting the child. (Kelsey S., supra, at p. 850.)
Demetria did not unilaterally prevent Sean from attaining presumed father status. (See In re Zacharia D., supra, 6 Cal.4th at p. 451.) Sean asserts he did not know Demetria had a baby until February 2008. However, Demetria submitted a Paternity Inquiry Form in December 2007 stating Sean had been informed he was the father of C.R. and that he was "happy about it." There was no additional evidence showing Sean had contact with Demetria. He did not provide Demetria with support while she was pregnant, he was not at the hospital when C.R. was born and he did not file a Declaration of Paternity. Further, there was no evidence showing Sean was prevented by Demetria or another party from coming forward and assuming parental responsibilities during Demetria's pregnancy or immediately after C.R.'s birth. Although Sean expressed an interest in C.R. after his paternity was established, he did not sufficiently demonstrate his commitment to his parental responsibilities to qualify as a Kelsey S. father. He did not arrange for additional visits outside of the ones he participated in, he did not offer financial support and he did not regularly contact the caregivers for information about C.R. " ' "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." [Citation.]' " (In re Christopher M. (2003) 113 Cal.App.4th 155, 160, quoting Lehr v. Robertson (1983) 463 U.S. 248, 260.) Sean's status remained that of a biological father, and due process does not require a finding of detriment to be made before terminating parental rights. (Fam. Code, § 7664; See Adoption of Michael H., supra, 10 Cal.4th at pp. 1051-1052.)
II. December 2008 Section 388 Modification Petition
Sean contends the court abused its discretion by denying his December 2008 section 388 petition for modification seeking placement of C.R. in his care, or alternatively, reunification services. He asserts his circumstances had changed because he completed a parenting class and regularly visited C.R. He further asserts it was in C.R.'s best interests to be placed in his custody because it would allow C.R. to be raised by her biological father.
A. Standard of Review and Relevant Law
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)
B. Analysis
The court agreed that completing a parenting course and regularly visiting C.R. may be considered new evidence showing "some change" in circumstances. However, these changes were not sufficient to warrant placing C.R. with Sean or giving him more services. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Sean had not addressed issues surrounding his serious and considerable criminal history consisting of drug possession, drug sales and drug abuse. Based on this evidence, the court found it was not in C.R.'s best interests to place her in Sean's custody.
The evidence shows Sean had a significant criminal history. He had been arrested 12 times since 1987 and served a four-year prison sentence from 2000-2004 for drug possession. Further, the question of whether Sean had achieved a drug-free lifestyle remained in question. Sean denied using drugs and claimed he only violated his parole on one occasion. The social worker reported, however, that Sean had violated his parole numerous times from 2005 through 2006 for abusing cocaine and marijuana and for possessing drugs. The social worker received two phone calls from a woman stating Sean continued to participate in drug sales. At trial, Sean testified he did not understand why it was necessary for him to drug test or participate in drug-related services. Based on these facts, the court did not find Sean's assertions that he lived a drug-free lifestyle to be credible. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The court recognized that Sean had several months during the proceedings to address concerns surrounding his criminal past and history with drugs. However, Sean did not avail himself of services to establish his sobriety.
By the time of the hearing on Sean's modification petition, the focus of the proceedings had shifted to providing C.R. with a safe, stable and permanent home. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Demetria had disclosed to Sean that he had a child but he did not participate in C.R.'s life until she became a dependent. C.R. currently lived with a caregiver who wanted to adopt her. She looked to her caregiver for her daily emotional and physical needs. The social worker opined C.R. was attached to her caregiver. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court evaluated the evidence, including C.R.'s need for stability and security, and found her best interests would not be served by removing her from a stable and loving home and placing her with Sean or providing him additional time to pursue services. The court acted within its discretion by denying Sean's modification petition.
III. Beneficial Parent-Child Relationship.
Sean challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating his parental rights. He asserts: (1) he maintained regular visitation and contact with C.R.; and (2) it was in C.R.'s best interests to continue the parent-child relationship.
A. Standard of Review and Relevant Law
We review the judgment for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "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. 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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a positive and emotional attachment from child to parent. (In re Autumn H., supra, at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B. Analysis
Sean participated in visits with C.R. over a seven-month period. He missed five visits and was late to several visits. He did not progress to unsupervised visits. Sean also did not regularly contact C.R.'s caregiver in between visits to inquire about her overall needs. Even if Sean's contact with C.R. is considered to be regular, he did not meet his burden to show his relationship with C.R. was sufficiently beneficial to outweigh the benefits of adoption.
Sean acted appropriately toward C.R. during visits, played with her, changed her diaper and showed affection. At the end of visits, C.R. did not have difficulty separating from Sean. In the social worker's opinion, C.R. did not view Sean as a parental figure and instead saw him more like a visiting relative or family friend. There was no evidence of a "substantial, positive, emotional attachment" from C.R. to Sean such that terminating the parent-child relationship would result in great detriment to C.R. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) C.R. instead lived with a caregiver that wanted to adopt her. C.R. referred to her caregiver as "mama" and was attached to her. The evidence showed C.R. would benefit more from the permanence of adoption than she would from maintaining a relationship with Sean.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) C.R., whose needs Sean could not meet, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. HUFFMAN, J.