Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226797
HULL, Acting P. J.Father, D.B., Sr., and mother, S.B. appeal the juvenile court’s order terminating their parental rights to the minor, D.B. Father contends the trial court erred in finding the beneficial parental relationship exception to adoption did not apply. Mother contends that if the order of termination as to father’s parental rights is reversed, so must be the order terminating her parental rights. We affirm the judgment.
Facts and Proceedings
Because mother’s claim is derivative of father’s, we focus on the facts relevant to his substantive claim.
In November 2006, about a year before D.B. was born, D.B.’s older siblings were removed from mother and father, because the younger child tested positive for cocaine at birth and because there had been instances of domestic violence in the home. Mother had a long and admitted history of violence, including domestic violence against father. She had been diagnosed with bi-polar disorder and had been hospitalized due to suicidal ideation. The parents were at the time offered reunification services, including domestic violence counseling, general counseling, parenting classes, and substance abuse testing and counseling for mother. Both parents failed to make substantial progress in their reunification plans, and parental rights to D.B.’s older siblings were terminated on June 13, 2007. The children were placed with the maternal grandmother, who was attempting to complete the adoption process.
Approximately six months later, D.B. was born and she, too, tested positive for cocaine. Accordingly, she was detained. In January 2008, she was placed with the maternal grandmother who said she would be able to adopt D.B. also.
The Welfare and Institutions Code section 300 petition alleged mother had a substance abuse problem and there was a history of domestic violence. (Undesignated statutory references that follow are to the Welfare and Institutions Code.) The parents and the maternal grandmother denied a history of domestic violence. Mother acknowledged she had a diagnosed mental illness and had been prescribed medications, but said she was unable to get the medication. She also said she had stopped taking the medications because they made her sick. Father agreed mother had a substance abuse problem and believed she needed to be in a residential treatment program. He was not worried about her mental health nor did he fear future violence by her.
Following a contested jurisdictional hearing, the court found the allegations in the petition were true. Reunification services were denied to mother, but offered to father.
Father was incarcerated until March 2008 because he had burglarized the maternal grandmother’s home. While incarcerated, he completed a parenting class. He also completed a substance abuse assessment, which recommended he be tested weekly for drugs. He was and his tests were consistently negative. Father was referred for domestic violence counseling, but had not yet started a program.
Father began visiting with D.B. in July 2008, when she was seven months old. After his initial visit, he canceled his next two visits. It did not appear to the social worker that father was invested in D.B. He eventually began visiting with D.B. regularly, participated in his reunification services and continued having negative tests for drugs and alcohol. But he had not started domestic violence counseling and his 12-step program participation was inconsistent. Visits between D.B. and the parents were appropriate. D.B. was happy to see her parents; the three played well and interacted during the entire visit. The parents also spoke with D.B. every night on the telephone.
The social worker made a referral for father to have separate visits with D.B. in October 2008. The hope was that having separate visits would give father a chance to better demonstrate his parenting skills and then to progress to unsupervised visits. Father was notified that his visits should be separate from mother’s, but he continued to share visitation with mother until she was incarcerated in December 2008. During those shared visits, mother took the primary parenting role. Father demonstrated his love for D.B. and she responded to that love.
The social worker also referred father to a housing workshop in October 2008, but he did not attend. He continued to live with mother. The parents agreed to live separately so D.B. could be placed with father. Father began living with two roommates who had not been cleared by the Department of Health and Human Services (DHHS).
By November 2008, father had completed his primary therapeutic goals. Father remained inconsistent in his participation in a 12-step program. He continued to randomly drug test and had a number of positive tests. Father continued to have “boundary issues” with mother. He let mother share his visits because he believed she would not otherwise get to visit with D.B. He was hesitant to divorce mother because of his religious beliefs. He believed “cut[ting] emotional ties” with mother would mean he was “not... a good man.” The social worker was concerned that if D.B. were placed with father, he would give mother unlimited access to D.B., which could result in danger to the child.
The maternal grandmother reported mother was again living with father, and had been since her release from jail in February 2009. She believed they continued to have a relationship and that they were “inseparable.” Maternal grandmother was still willing to adopt D.B. and they appeared to have a strong bond.
Following the contested permanency hearing, on April 27, 2009, the court found father lacked credibility. The court further found that lack of credibility “makes the evidence about lack of boundaries with the mom unfortunately more compelling.” The court found father would have a difficult time severing his relationship with mother for D.B.’s protection. Accordingly, the court terminated reunification services and set a section 366.26 hearing.
The section 366.26 hearing took place on November 19, 2009. After August 2009, visits were reduced to every two weeks, and then once a month. Visits continued regularly until September 14, 2009, when they stopped because of budgetary constraints at the DHHS. The visits that did occur were appropriate. D.B. was excited to see her parents and they all interacted well. She would greet her father with a big hug. They would play and he would work on teaching her to talk and read. She called her parents Momma and Daddy. According to mother, D.B. sometimes cried when visits ended, and would wave and blow kisses goodbye. Father testified she did not cry when visits ended “[b]because she’s always known us this way.” He also acknowledged grandmother was doing a “great job” and that he and mother had never lived with D.B. or acted as her parents.
Father testified that being able to maintain his relationship with D.B. was in her best interest so that later in her life she would not feel her parents had abandoned her, would know she had a father who loved her and cared for her and would not have to wonder where he was. He pointed out he had never used drugs or alcohol and wanted to be a good father.
D.B. had a strong bond with her grandmother. She called her grandmother “mammal” and her sisters “sissy.” D.B. appeared to be developmentally on target, was able to walk, and was learning to run and speak. She was exhibiting normal behaviors for her age and could be stubborn. D.B. was young, and in good health and the social worker found she was generally adoptable.
The court found D.B. was adoptable. The court also found the parents had maintained regular visits with D.B. and that D.B. would be sad and miss her parents if parental rights were terminated. The court went on to find that the evidence did not rise to the level of being “evidence that she would be greatly harmed and the benefits of adoption outweigh maintaining that relationship.” Accordingly, the court found the parents had not proven that “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 court terminated parental rights and selected adoption as the permanent plan.
Discussion
Father contends because he maintained a relationship with D.B. “all through these proceedings, and because [D.B.] would benefit from continuing a relationship with him, the juvenile court erred when it terminated [his] parental rights.” We note this is not the standard to be applied, however, and find the trial court did not err. Defendant also contends the standard articulated in In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.) should be modified as it is impossibly high. We disagree with that contention also.
“‘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. [Citation.]” (In re Renell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the juvenile court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
In Autumn H., the court interpreted the “‘benefit from continuing the [parent/child] relationship’ exception to mean 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. 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.” (Autumn H., supra, 27 Cal.App.at p. 575.)
Father objects to the portion of this standard, which requires a balancing of the “strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging to a new family would confer.” He suggests the plain language of the statute requires the parent to show only that the relationship is beneficial, not more. He proposes the standard should require only a consideration of whether “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.”
We agree with the standard as articulated in Autumn H. Father’s complaints about the difficulty of making a showing that satisfies the parental benefit exception disregards the stage of the proceedings at which this determination is made and the expressed legislative preference for adoption. “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The child has a compelling right to “‘a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) The parental benefit exception “‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ [Citation.] At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.]” (Id. at p. 53.) The standard articulated in Autumn H. allows for proper consideration of the child’s needs. Accordingly, we reject father’s proposal and continue to apply the standard as set forth in Autumn H.
The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(d)(2)(C)(vi)(4); In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.); see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
A parent may not claim entitlement to this exception “simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349 (Jasmine D.).) Nor is “frequent and loving” contact enough to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
On appeal, the juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; accord, Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
Father contends his case is like that of the father in In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), and that under the standard in S.B., he met his burden. He did not. In S.B., the father had been the six-year-old child’s primary caregiver for the first three years of her life. (S.B. at p. 293.) The child and father had an emotionally significant relationship and the bond between them was fairly strong. (Id. at pp. 295-296.) “For the first year after she was removed from parental custody, S.B. continued to display a strong attachment to [father]. She was unhappy when visits ended and tried to leave with [father] when the visits were over.” (Id. at p. 298.) During visits, S.B. demonstrated that she loved her father, she wanted their relationship to continue, she missed him and wished she lived with him. (Ibid.) Furthermore, when the child was removed from his custody, he took immediate corrective action and complied with every aspect of his case plan. (Ibid.) In S.B. the court held a parent is not required to show the child has a “primary attachment” to the parent to establish the necessary beneficial relationship. Instead, the necessary relationship could be established where the child had formed a strong emotional attachment to the parent, who filled the primary caregiver role for a period of the child's life, and that attachment was sustained through regular visitation and remained substantial and positive, even in the absence of day-to-day contact. (See id. at pp. 296-301.)
Father’s case does not compare favorably to the facts in S.B. Father was never D.B.’s primary caregiver. As he himself acknowledged, he has never lived with D.B. and never parented her. D.B. was removed from the parents’ care and custody when she was two days old. Father did not visit her for the first seven months of her life. During visits, mother took the primary parental role. There was no evidence in the record that there was an emotionally significant relationship between father and D.B. or that she was particularly unhappy or in any way negatively affected by visits ending. There was also no evidence in the record that D.B. ever indicated she missed her father or wanted to live with him.
Nor was father as immediately and completely compliant with his case plan as the father in S.B. As mentioned above, he did not begin visiting with D.B. until she had been in custody for seven months. He was inconsistent in his participation in a 12-step program. It does not appear he ever participated in the domestic violence counseling. He had a number of positive drug tests. He continued to share visits with mother, even after he had been referred for separate visits. He was referred to a housing workshop but did not attend. He agreed to live separately from mother so D.B. could be returned to him, but never did. This is not the kind of success and compliance that was demonstrated by the father in S.B.
Here, D.B. was two years old when parental rights were terminated. She had never lived with either parent, but had lived the entirety of her life with her maternal grandmother and sisters. She had a strong bond with her grandmother. There was no evidence of any effect, positive or negative, on D.B. of interactions with the parents. At most, there was evidence, contradicted by father, that D.B. sometimes cried when the parents left visits. That sort of temporary upset is not sufficient. D.B. was thriving in her grandmother’s home. She was developmentally on target, physically healthy, walking and learning to run, talking and had no behavioral problems.
Based on this record, we find substantial evidence supports the conclusion severing the natural-parent child relationship would not deprive D.B. of a “substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Disposition
The judgment of the juvenile court is affirmed.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.