Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. JJV061773 of Tulare County. Charlotte A. Wittig, Commissioner.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Carol Helding, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
INTRODUCTION
Appellant, L.R., appeals from orders terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter, D.R. Appellant contends the juvenile court erred in failing to find that he came within the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i). We disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Earlier Proceedings
On July 23, 2008, a petition was filed pursuant to section 300 alleging that D.R., then not quite six months old, came within the provisions of dependency law. The petition alleged D.R.’s mother, A.W., exposed D.R. to illegal narcotics, A.W. suffers from substance abuse, A.W. suffers from a mental illness and anger management issues, and appellant engaged in domestic violence with A.W. The petition also alleged appellant failed to protect D.R. because of A.W.’s substance abuse, A.W.’s mental health and anger management issues, appellant’s substance abuse, and D.R. is without provisions for support.
The petition was filed after the parent’s referral to early intervention and family maintenance services in early 2009 failed because the parents were not compliant with voluntary services. Both parents were having anger management problems and both were testing positive for drug use.
The social worker’s report for the jurisdiction/disposition hearing was prepared in August 2008. The social worker recommended no reunification services be offered to A.W. because she fell within the provisions of section 361.5, subdivision (b)(10), (11), and (13). The social worker recommended reunification services to appellant. The social worker placed these recommendations into proposed orders for the juvenile court.
At the jurisdiction/disposition hearing on October 1, 2008, the parents both waived their rights to a contested hearing and submitted the case on the social worker’s report. The court found the allegations in the petition to be true. The court adopted the findings and orders as submitted by the social worker. The court warned appellant that if he continued a relationship with A.W., it could affect his ability to have D.R. returned to him. The court also advised appellant that because D.R. was under age three, he could have reunification services terminated after six months if he failed to participate regularly and make substantive progress in his court-ordered treatment plan.
Recent Proceedings
In July 2009, the social worker reported D.R. was placed in the care of her relative, C.R., in February 2008. C.R. was committed to adopting D.R., demonstrated an awareness of D.R.’s needs, and showed the ability to address the minor’s needs successfully. A.W. and appellant had not parented D.R. for her daily emotional or physical needs since her removal from their custody. Appellant visited D.R. regularly under the supervision of C.R. Although D.R. appeared comfortable in her father’s presence, she routinely returned to C.R. throughout a visit. The social worker recommended termination of the parental rights of both parents with a permanent plan of adoption by C.R.
In an addendum report, the social worker stated that neither parent completed their reunification plans. Both parents have a history of mental illness, domestic violence, and substance abuse. The parents have a second child. The social worker noted neither parent had a successful long term record of parenting, recovery from substance abuse, or parenting without episodes of domestic violence.
On August 14, 2009, the court conducted the section 366.26 hearing. After testimony from A.W., the court denied her petition pursuant to section 388 for further services. Appellant then testified that he visited D.R. at C.R.’s home. Appellant stated he visited D.R. every day, sometimes as long as the entire day on weekends, to between half an hour to a couple of hours on other days. On weekends, appellant would stay at C.R.’s home.
Appellant explained he changed D.R.’s diapers, fed her, and did normal things one does to care for a child like getting her dressed. Appellant played ball with D.R., swam with her, and played games with D.R. Appellant said he was very close to D.R., who was 18 months old at that time. Appellant asserted that since D.R. was removed from his custody, he had visited with her every day.
Appellant explained he felt like D.R.’s dad. D.R. calls him “Dad” and when she sees him, D.R. runs to appellant. Appellant feels very close to D.R. and tells her things like he loves her and he wishes he did not have to leave. Appellant gives D.R. hugs and kisses. Sometimes D.R. will cry when appellant leaves her. Appellant admitted all of his visits with D.R., except one or two, were supervised by C.R. Appellant had gone twice with A.W. to couple’s counseling. When D.R. wakes up in the morning, C.R. is providing care for the child. Appellant conceded C.R. took good care of D.R.
C.R. testified she had been D.R.’s caregiver since D.R. was four weeks old. C.R. and C.R.’s significant other provide all of D.R.’s care. C.R. said appellant was inaccurate when he said he saw D.R. every day and never missed a day of visitation. Appellant typically visits D.R. four or five times a week and C.R. supervises all of the visits. Appellant never has unsupervised visits.
C.R. testified that she was D.R.’s primary caregiver. Appellant helps out “on occasion.” D.R. reacts a lot to all visitors and often cries when people leave. This reaction is the same whether it is appellant leaving or other visitors. C.R. takes D.R. to all of her well baby checkups. C.R. takes D.R. to the doctor when she gets sick. Appellant has never taken D.R. to the doctor.
The juvenile court found that appellant had a relationship with D.R., but not a parental relationship. The court found D.R. is thriving in her current placement and that C.R. meets her needs. The court found D.R. would benefit from the permanent plan of adoption and terminated appellant’s parental rights.
DISCUSSION
Appellant contends the court erred when it declined to find termination would be detrimental to the child’s best interests. Appellant claims he was entitled to such a finding because he maintained regular visitation with his child and she would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]). On review of the record, we find no abuse of discretion.
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.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1), acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
We may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on his insistence on maintaining his parental rights and ignoring other evidence before the court. In any event, appellant failed to establish his relationship with D.R. was so strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
The loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. “‘The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant underplays D.R.’s very young age and the fact she only lived with appellant for the first few months of her life. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and D.R. during their visits.
[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: “balance[] 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.” (Id. at p. 575.)
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, appellant failed to introduce any such evidence. Accordingly, we conclude the court did not abuse its discretion by rejecting appellant’s argument.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.