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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. CK58939, Jacqueline H. Lewis, Juvenile Court Referee. Affirmed.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.
Thomas T. (father) appeals the juvenile court’s order terminating his parental rights to E.T. (minor). According to father, the juvenile court erred when it declined to apply the parental contact exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). We find no error and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
ASHMANN-GERST, J.
FACTS
Detention and initial placement
The minor was born premature in April 2005, detained due to her mother’s prenatal drug use, and placed with M.O., a maternal cousin. M.O. was the legal guardian for the minor’s siblings.
Father’s contacts with the minor; father’s progress
For the first few months after the minor was declared a dependent, father visited on an inconsistent basis. In September 2005, he began promptly visiting the minor once or twice a week for an hour. Due to the minor’s illness, father was not able to visit during December 2005. Eventually, the Department of Children and Family Services (Department) permitted father to have unmonitored visits at a neutral setting.
On May 24, 2006, the juvenile court granted father unmonitored weekend and overnight visits.
When father arrived with J.C., his aunt, at the Department’s offices to pick the minor up for a visit from July 21, 2006, to July 23, 2006, she cried and clung to M.O. This upset father, and he was hostile toward M.O. Upon father’s return, he reported that the visit went well, but that the minor seemed apprehensive. The social worker observed that the minor was calm, content and alert. When she saw M.O., the minor ran to hug her and seemed overjoyed.
The minor got extremely upset when father came to pick her up for the weekend of July 28, 2006, to July 30, 2006. She cried uncontrollably and began kicking, saying, “No, no, no.” It was difficult to get her in the car. Father had glassy eyes, paced back and forth vigorously, fidgeted and spoke at a rapid rate. The social worker asked father if he was under the influence of drugs. He said he was not. Upon the minor’s return from the visit, she was upset and crying. It was a hot day, but she was wearing oversize jeans. She had a scratch on her arm and neck. The next day, M.O. called the social worker to report that the minor was complaining of pain on the back of her right leg. When M.O. looked, she found a large bruise.
Further visitations were suspended.
Father had a monitored visit on September 26, 2006. The minor became very upset every time M.O. tried to leave. M.O. stayed. After a while, the minor interacted with father, laughing and playing. Father had an unmonitored visit on October 5, 2006, from 12:00 noon to 3:00 p.m. He took her to a house where he was renting a room. He said the visit went well.
For the next couple of weekends father was unable to make appropriate plans for transportation and visitation.
The next visit occurred from October 27, 2006, to October 30, 2006. By all accounts, the visit went well. M.O. thought the minor’s nose was swollen and took her to a doctor. An x-ray revealed a fracture. The juvenile court ordered the minor removed from M.O.’s custody and placed in the custody of M.G. and M.L.
The minor and father had weekly monitored visits from November 17, 2006, to December 4, 2006. From November 2006 to March 2007, father failed to provide the social worker with a child care plan, and he did not have proper housing for the minor. He was inconsistent with his drug testing; he had no shows on November 3, 2006, December 4, 2006, and January 16, 2007.
Monitored weekly visits took place on Mondays, except that father had excuses for not visiting on January 19, 2007, February 5, 2007, and February 26, 2007. The visits improved. The minor interacted and played with father more. They generally went to a park, had lunch and played. On February 12, 2007, father brought a snake to the visit, which scared the minor.
The Evidence Code section 730 evaluation
The juvenile court asked Dr. Lynda Doi Fick to evaluate the minor’s apparent fear of father. She submitted a report dated February 26, 2007. She observed the minor and father together on two occasions. The first time, on November 17, 2006, the minor cried around father and he could not soothe her. But when they went for a walk, she wanted father to carry her. Back at the office, father took out his car keys. She pointed to the keys and said, “No.” He asked what she wanted him to do with the keys and she pointed at Dr. Fick’s office. When he moved toward her office, the minor called him, saying, “Da.” He asked if she wanted to go to the office and she shook her head. Dr. Fick decided to terminate the session because the minor was too confused to continue. When father said “goodbye,” the minor began crying and pointed toward the door. She kissed him before he left.
Dr. Fick observed father and the minor on January 19, 2007. This time they interacted and played without confusion or crying. At one point she drew his attention by calling, “Da.”
18-month review
On April 26, 2007, the juvenile court terminated reunification services, set the matter for a section 366.26 hearing, and placed the minor with J.C. By a preponderance of the evidence, the juvenile court found that returning the minor to father’s custody would create a substantial risk of detriment to her safety, protection and physical and emotional well-being.
The section 366.26 hearing
The Department reported: “[The minor] has had some difficulty forming attachment and trust with father. . . . In the last year, father and [the minor] began to maintain regular contact via visitation; however, throughout that time span [the minor] continued to demonstrate some trust issues with father. As of writing this report, [the minor’s] contact with father has diminished and the progress made toward building a father/daughter relationship has also regressed. As this time [the minor] has sporadic monthly monitored visitation with [father].” The minor sometimes called J.C. and her husband “mommy” and “daddy.” J.C. and her husband were willing to move forward with adoption.
The parties convened for the section 366.26 hearing on January 31, 2008. Father was not present. His attorney asked for a continuance. The request was denied. His attorney argued that parental rights should not be terminated because father and the minor have a strong bond.
The juvenile court stated: “[W]hile [father] hasn’t maintained completely regular visitation [and] contact, there have been periods of time where he has maintained regular visitation and contact. [¶] And it is clear from the reports over the years that [the minor] is happy to see him, and that a continuing relationship would have some benefit to her. [¶] However, . . . this court finds that the benefit to this little girl of finally having some permanence where [father] can’t keep coming in and disrupting that is way more beneficial to her than any possible benefit she would have in continuing the relationship with [father].” The minor was found adoptable. Parental rights were terminated.
This timely appeal followed.
STANDARD OF REVIEW
Appellate courts have traditionally applied a substantial evidence test to a juvenile court’s finding of whether an exception to termination of parental rights under section 366.26 has been established. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Some courts have applied the abuse of discretion standard of review. They conclude that the difference between the two standards is insignificant. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
DISCUSSION
According to father, the juvenile court should have applied the section 366.26, subdivision (c)(1)(B)(i) exception to the termination of parental rights. We disagree. Whether reviewed for substantial evidence or abuse of discretion, the order terminating parental rights must be affirmed.
1. The beneficial relationship exception
At a section 366.26 hearing, a juvenile court must terminate parent rights if a child is found adoptable unless a parent establishes one of the statutory exceptions by a preponderance of the evidence. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The exception urged by father applies when the parent has maintained “regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
2. Application of the law.
The record reflects that father had somewhat regular contact with the minor, but that in the year preceding the termination of his parental rights the visits were monitored and decreased in frequency. The juvenile court acknowledged the extent of contact. The pivotal issue is whether the record supports the juvenile court’s finding that the minor would not benefit from continuing her relationship with father a sufficient amount to trigger the exception.
We conclude that the juvenile court did not err. Substantial evidence supports its decision, and its decision did not exceed the bounds of reason such that it can be labeled an abuse of discretion.
To establish the applicability of the exception, a parent must show more than “‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy ‘a parental role’ in the child’s life. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108–1109.) For a younger child, the exception typically applies when the parent and child enjoy a relationship “characteristically arising from day-to-day interaction, companionship and shared experiences.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Day-to-day interaction “is not necessarily required,” but that type of interaction generally gives rise to the level of connection that a parent must prove to qualify for the exception. (Ibid.)
A beneficial relationship is one 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The existence of a beneficial relationship is determined by considering the various factors, such as: “‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’” (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) To “avoid termination of the natural parent’s rights, the parent must show 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. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
There is substantial evidence that father did not occupy a parental role in the minor’s life. In the nearly three years of the minor’s life before the section 366.26 hearing, father had only three unmonitored weekend visits. For a time, he saw the minor once and sometimes twice of week. Later, his visits were sporadic and only monthly. The minor had difficulty forming attachment and trust with father, and their progress toward forming a father/daughter relationship regressed. On several occasions she called him “Da,” but she called J.C. and her husband mommy and daddy. Father never provided a plan for taking care of the minor, and two occasions the minor returned from visits with injuries of unknown origin, and on another visit father scared the minor when he brought a snake. Impliedly, these facts undermined the minor’s sense of safety when she was in father’s care. Overall, the inference is that the minor and father did not enjoy a relationship characteristic of one arising from day-to-day interaction, companionship and shared experiences.
We cannot say that a relationship with father promotes the minor’s well-being to such a degree as to outweigh the benefit she would derive from being placed in a stable, permanent home with J.C. and her husband. The minor is only three and a half years old, she has never been in father’s custody, and her interactions with father have often upset her. There is no indication that severing their natural parent-child relationship would deprive the minor of a substantial, positive emotional attachment such that the she would be greatly harmed. Certainly she would derive some benefit out of continuing the relationship, but that is not enough to overcome the preference in the statutory scheme for permanency and adoption.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.