Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) No. J210180
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal, for Minor.
McKinster Acting P.J.
This is an appeal by R.W. (hereafter father) from the trial court’s order under Welfare and Institutions Code section 366.26 terminating his parental rights to his son, eight-year-old D.W. (hereafter D.). In this appeal, father contends that both the beneficial parental relationship and the sibling relationship exceptions to parental rights termination apply, and therefore the trial court erred in terminating father’s parental rights. We disagree and therefore will affirm.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
According to the undisputed pertinent facts, D. was six years old in September 2006 when San Bernardino County Department of Children and Family Services (CFS) removed him and his six siblings (none of whom are subjects of this appeal) from the care of father after father’s mother (hereafter grandmother) nearly backed her car over D.’s older sister. Father and the family had been the subject of 33 prior referrals based on allegations of neglect and physical abuse by father, grandmother, and the children’s mother. In the report prepared for the detention hearing in the dependency at issue in this appeal, the social worker stated that the most recent prior dependency was filed in November 2004, and was dismissed in June 2006 under a program of voluntary family maintenance under which the children were living with father. That proceeding included allegations that father abused drugs and as a result was unable to protect the children from grandmother, with whom he and the children lived, who hit the children with a belt, a brush, sticks, rocks, a broom, and her hand.
Because they are undisputed, we take our statement of facts from the parties’ respective briefs.
Mother abuses controlled substances, rarely visited the children, and did not participate in services. She is not a party to this appeal.
In the report prepared for the jurisdiction and disposition hearing in the current dependency, the social worker recommended that father not receive reunification services and that D. be placed outside the home. The social worker also reported that father often hit grandmother, grandmother hit the children, and father continued to live with grandmother even though he admitted he knew she physically abused the children. Father’s girlfriend told the social worker that she supplied father with marijuana and methamphetamine, and the children reported seeing father in his bedroom smoking from a bong. Father told the social worker that he allowed the children to have unsupervised visits with their mother in violation of the conditions of his custody and family maintenance plan, and that he let his teenaged daughter sleep overnight with her boyfriend. In the social worker’s view, father was emotionally fragile, developmentally incapable of parenting, unable to make appropriate decisions, and unable to reason and negotiate with the children. In addition, he was desperate to have his needs met first. At a court ordered mediation in September, father did not dispute the allegations of the section 300 petition, but he did object to the recommendation that he not receive reunification services.
At the time of the dependency, that daughter was five months pregnant.
In addendum reports prepared for a contested disposition hearing, the social worker included more information about the previous dependency which included acts of physical abuse by father and grandmother and acts of domestic violence between the two. D. was four years old when that proceeding was initiated. He was in diapers, still using a bottle, and was not in school. With respect to the current dependency, the social worker reported additional acts of physical and verbal abuse between father and grandmother, as well as father’s physical abuse of D.’s older brother and grandmother’s abuse of D.’s siblings.
The contested disposition hearing was continued several times and ultimately held on January 17, 2007. In the interim, on January 4, 2007, father tested positive for amphetamines. At the disposition hearing, the trial court declared D. a dependent, denied reunification services to father, and set the section 366.26 selection and implementation hearing for May 17, 2007.
By the time of selection and implementation hearing, the social worker reported that father had visited the children weekly as provided in the disposition order. During those visits, D. generally played by himself. The trial court approved the social worker’s proposed permanent plan of continued foster care for D. At a later hearing on the issue of visitation, the trial court, at the recommendation of D.’s therapist, limited father’s visits to twice monthly.
Although CFS initially placed D. and his sister A. in the same foster home, they were moved to respite care after their foster mother went into early labor and was hospitalized. After the baby was born, the foster mother asked for D. to be returned, but she could not accommodate the sister. According to the status review hearing report, D. who had been diagnosed with Asperger’s Syndrome and encopresis, was on track physically and developmentally—he was talkative, expressive, and bright. He got along well with others and was doing well in school. His favorite subject was science. He appeared to be developing into a happy, average boy, and the social worker recommended continued foster care as the permanent plan. A continued status review hearing was set for August 5, 2008. In the meantime father filed a section 388 petition asking the court to return the children to him. The trial court denied that petition.
In a status review report dated July 11, 2008, the social worker recommended that the trial court set a section 366.26 hearing to establish a permanent plan of adoption for D., who had been removed from his most recent foster placement because he was too aggressive with the new baby. In June, CFS placed D. in a prospective adoptive home, where he bonded with the family and seemed happier than ever before. In school D. performed to grade level in reading and math but not writing. He was promoted to third grade. However, he was teased and bullied at school as a result of the accidents he occasionally had as result of encopresis, so his prospective adoptive mother planned to home school D. Father, in turn, consistently attended his bi-monthly visits with D.
In a subsequent report, the social worker stated that D. wanted to be adopted so that he would have a family and would not have to move. D.’s prospective adoptive parents were fully aware of D.’s needs, and loved and adored him. They viewed him as smart. The prospective adoptive father is a chemist and “thinks that he and [D.] have a similar way of looking at things. He completely relates to him and is proud of the relationship they share.” Their biological children also wanted D. to remain with the family. At a hearing on October 5, 2008, the trial court set the section 366.26 hearing for February 5, 2009, but the hearing was continued to March 5, 2009.
Father testified at the contested section 366.26 hearing that all seven children lived with him before their removal in 2006. With respect to D., father stated that he visited D. regularly and had not missed a visit, although he was late for one. Father also said that during the most recent visit two weeks before the hearing, D. called him dad, told father he loved him, father and D. hugged each other, and talked. Father stated that he did not agree with the recommendation to terminate his parental rights, although he knew that D. wanted to be adopted and thought that D.’s wish should be respected. Father also testified that when he was present during D.’s visits with his siblings, the siblings would hug each other and talk. The siblings got along with each other but sometimes got on each other’s nerves.
At the conclusion of the hearing, the trial court found in pertinent part that “to the extent that there is a parental bond, that the need and desire for the child to have permanency, stability and security in a safe and loving home that has—where the child has really blossomed, far outweighs any parental bond that exists.” The trial court made the same finding with respect to any claimed sibling bond—that “it seems far outweighed by the need and desire for the child to have the security of the love, the companionship, the positive influence that he has with a couple of fantastic caregivers and [their children who] look upon [D.] as a brother and a family member.” Accordingly, the trial court terminated father’s parental rights after first finding that none of the exceptions set out in section 366.26, subdivision (c)(1)(B) apply. Father challenges that order in this appeal.
DISCUSSION
Father, as previously noted, contends that both the beneficial parental relationship exception and the sibling relationship exception apply in this case and therefore the trial court erred in terminating his parental rights. We disagree for reasons we now explain.
We review a trial court’s order terminating parental rights to determine whether it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence that a child is adoptable unless it finds a compelling reason for determining that termination would be detrimental under one or more of the exceptions set out in subdivision (c)(1)(B). Under section 366.26, subdivision (c)(1)(B)(i), “the court may forego adoption and refrain from terminating parental rights only if a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such that 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.”’ [Citations.] A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child’s need for a parent. [Citation.] Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.) “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. (2007) 150 Cal.App.4th 71, 81.)
Father’s testimony, set out above, establishes that he maintained regular visitation and contact with D. Neither father’s testimony nor any other evidence presented in the trial court establishes the second requirement of the beneficial relationship exception that D. would benefit from continuing his relationship with father because the relationship promotes D.’s well-being to such an extent that it outweighs the benefits D. would gain from adoption. In fact the evidence presented below demonstrates just the opposite. According to the social worker’s report and the adoption assessment, since living in the home of the prospective adoptive family, D. no longer exhibited signs of speech or hearing problems or of Asperger’s Syndrome, all of which he had displayed while living in father’s care. D. quite simply had flourished under the care of the prospective adoptive family. That evidence gives rise to the inference that D.’s relationship with father, although apparently pleasant, did not promote D.’s emotional or physical well-being to any significant extent. At most father’s evidence showed that he visited D. regularly, that D. loved father and enjoyed the visits. In short, father did not meet his burden to show that his relationship with D. is a substantial emotional attachment and that D. would suffer great harm if father’s parental rights were terminated.
The evidence also does not establish the exception under section 366.26, subdivision (c)(1)(B)(v), that, “There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” As the parent asserting that the sibling relationship exception applies, father had the burden of proof on this issue. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
As set out above, the evidence presented in the trial court establishes that D. has six siblings, some of whom he visited with during the dependency process and one he was placed with while in foster care. The evidence also showed that D. apparently enjoyed visits with his siblings. That evidence does not show, either directly or by reasonable inference, that D. had a significant or close relationship with any of his siblings. Absent such evidence father has failed to demonstrate that the sibling relationship exception applies in this case. Therefore we must conclude that substantial evidence supports the trial court’s order terminating father’s parental rights to D.
DISPOSITION
The order terminating father’s parental rights to D. is affirmed.
We concur: Gaut J., King J.