Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. CK51298, Stephen Marpet, Referee.
Jennifer Mack for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
D. S., Sr. (father) appeals an order terminating his parental rights.
Father contends sufficient evidence existed to qualify for a Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights. The contention fails.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude the record fully supports the juvenile court’s determination that (1) father failed to maintain regular visitation and contact with the minors and (2) the minors would not benefit from continuing a relationship with him. Therefore, the order terminating father’s parental rights is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Proceedings leading to appointment of maternal grandmother as legal guardian.
On January 29, 2003, the Los Angeles County Department of Children and Family Services (Department) filed a juvenile dependency petition alleging the minors M. S. (born June 2000) and D. S., Jr. (born April 2002) came within the jurisdiction of the court pursuant to section 300, subdivision (b) [failure to protect].
At the March 13, 2003 adjudication hearing, the juvenile court sustained the petition as amended: With respect to father, the court found he “has a history of substance abuse and is a frequent user of methamphetamine, which renders [him] incapable of providing regular care for the children. Further, the parents left illicit drugs and drug paraphernalia accessible to the children. Such detrimental conduct by the children’s parents endangers the children’s physical and emotional health and safety and places the children at risk of serious harm.”
The court removed custody from the parents, ordered the Department to provide six months of reunification services and admonished the parents per section 366.26.
At the time of the September 11, 2003 six-month review, father was driving a truck on out-of-state routes. Father tested positive for methamphetamine on August 6, 2003. The court ordered all visitation to be monitored and warned the parents that a lack of progress could result in a referral for a termination hearing.
At the March 29, 2004 review hearing, the court granted mother an additional four months of reunification services but terminated father’s reunification services based on his lack of compliance with the case plan. Father had missed 27 of 28 scheduled drug tests from December 2003 to March 2004.
At the July 26, 2004 18-month review, the court terminated mother’s reunification services and referred the matter to a section 366.26 permanent planning hearing.
On November 22, 2004, the court selected legal guardianship with the maternal grandmother as the permanent plan. The court gave the legal guardian the discretion to allow the mother appropriate visitation. The court then terminated jurisdiction.
2. Section 388 proceedings.
Nearly three years later, on July 13, 2007, the parents each filed a section 388 petition to terminate grandmother’s legal guardianship and reunify with the children.
On October 17, 2007, the juvenile court held a hearing on the section 388 petitions. The court found there was no change of circumstances and that it was not in the best interest of the children to grant father’s section 388 petition. Mother withdrew her petition but the court nonetheless denied her petition as well.
Maternal grandmother, who appeared in court, expressed her desire to adopt the children. The court scheduled a section 366.26 hearing.
3. The 366.26 hearing.
The section 366.26 hearing was held on February 14, 2008. Father objected to termination of his parental rights. Father’s counsel argued the maternal grandmother thwarted father’s visitation with the minors and prevented his reunification with them. Further, maternal grandmother took no action to modify the permanent plan of legal guardianship until father filed a section 388 petition. If the grandmother adopted the minors, he would be cut off from all future contact with them.
Over father’s objection, the juvenile court terminated his parental rights; mother was in agreement with maternal grandmother’s adoption of the children. The court found by clear and convincing evidence it was likely the minors would be adopted. The court found the Department had provided appropriate services.
On February 21, 2008, father filed a timely notice of appeal from the order.
CONTENTIONS
Father contends the juvenile court should have applied the section 366.26, subdivision (c)(1)(B)(i) exception and prevented termination of his parental rights.
DISCUSSION
1. Substantial evidence supports juvenile court’s determination that father failed to qualify for section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights.
At the section 366.26 hearing, father objected to termination of his parental rights and requested the court to maintain the children in legal guardianship with maternal grandmother. Father contends guardianship is the better alternative because it would preserve a beneficial parent/child relationship.
a. General principles.
Adoption requires terminating the natural parents’ legal rights to the child; guardianship and long-term foster care leave parental rights intact. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) After a child is found adoptable, the termination of parental rights and adoption is considered the best mechanism 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. (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
The juvenile court can avoid terminating parental rights to an adoptable child only if it finds a compelling reason that termination would be detrimental to the child. (In re Helen W., supra, 150 Cal.App.4th at p. 80.) After the parent has failed to reunify and the court has found the child likely to be adopted, “it is the parent’s burden to show exceptional circumstances exist” to preserve parental rights and to preclude adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 574, italics added.)
Section 366.26 provides in relevant part: “(c)(1) If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, 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. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) 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: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.)
The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. (In re Helen W., supra, 150 Cal.App.4th at pp. 80-81.)
This exception to termination of parental rights “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
To overcome the strong policy in favor of terminating parental rights and to fall within section 366.26, subdivision (c)(1)(B)(i)’s purview, “the parent must show more than ‘frequent and loving contact,’ [citation] and be more to the child than a mere ‘friendly visitor or friendly nonparent relative.’ [Citation.] The parent must show the parent-child bond is a ‘substantial, positive emotional attachment such that the child would be greatly harmed’ if parental rights were terminated. [Citation.]” (In re Helen W., supra, 150 Cal.App.4th at p. 81, italics added.)
b. Standard of review.
The reviewing court must affirm a trial court’s rejection of alleged exceptions to termination of parental rights if the trial court’s ruling is supported by substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) The question whether a parent maintained regular visitation and contact is one of fact, which we review for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
However, the statute’s requirement that the juvenile court find “a compelling reason for determining that termination would be detrimental to the child” (§ 366.26, subd. (c)(1)(B)(i) in that the child would benefit from continuing the relationship with the parent, is quintessentially a discretionary determination. We review such rulings for an abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
The practical differences between these two standards of review are not significant. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In either case, “[b]road deference must be shown to the trial judge.” (Ibid.)
c. Father’s visitation and contact was sporadic; trial court acted within its discretion in finding termination of father’s parental rights would not be detrimental to the children.
For about the first six months after the March 2003 adjudication hearing, father visited the children daily except for work days. The Department reported for the September 2003 six-month review hearing that at times, the parents made daily visits.
However, by the March 2004 12-month review hearing, father had fallen out of compliance with his case plan. The Department reported father visited the children only once in October, November and December 2003, respectively, twice in January 2004, and once in February 2004. On March 29, 2004, the court terminated father’s reunification services for noncompliance with his case plan.
The status review report for the July 26, 2004 18-month hearing indicated father had only visited the children once during the reporting period, on June 27, 2004, “due to his work schedule and recent incarceration.”
At the July 26, 2004 hearing, the trial court ordered monitored visitation for father. However, three years later, after filing his section 388 petition in July 2007, father admitted to the Department that he had rarely visited the children and that his relationship with them was “distant.”
At the September 2007 section 388 hearing, the court issued another order granting father monitored visits, twice weekly. However, father’s visits remained infrequent, with a total of two visits in September and October 2007.
It is clear from the record that over the years, father’s visitation and contact with the children has been sporadic. Father blames his infrequent visitation on maternal grandmother’s alleged interference. However, father did not turn to the Department to facilitate visitation, and did not seek enforcement of his visitation rights.
In view of father’s infrequent visitation, the record amply supports the juvenile court’s conclusion the parent-child relationship did not rise to the level required under the beneficial relationship exception. The children are young. M. S. has spent most of her life with maternal grandmother. D. S., Jr. has lived virtually his entire life with her.
Nothing in the record indicates the children “have any needs that can be met only by [father].” (In re Helen W., supra, 150 Cal.App.4th at p. 81.) Father wishes to maintain a relationship with the children. But this is “simply not enough to outweigh the sense of security and belonging an adoptive home would provide.” (Ibid.) In view of father’s sporadic contact and admittedly distant relationship with the children, it cannot be said the “parent-child bond is a ‘substantial, positive emotional attachment such that the child[ren] would be greatly harmed’ if parental rights were terminated.” (Ibid.) On this record, no exceptional circumstances exist which warrant the preservation of father’s parental rights so as to preclude adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 574, italics added.)
DISPOSITION
The order terminating father’s parental rights is affirmed.
We concur: CROSKEY, J., KITCHING, J.