Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. J208882. Marsha Slough, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Nicholas W.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Latoya G.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
McKinster, J.
OPINION
Nicholas W. (Father) appeals from the juvenile court’s order terminating his parental rights to his son, I.W. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Father contends the juvenile court erred when it terminated his parental rights because I.W. would benefit from continuing a relationship with Father. (§ 366.26, subd. (c)(1)(B)(i).) Latoya G. (Mother) joins in Father’s arguments to the extent that it benefits her. We affirm the order.
All subsequent references to code sections are to the Welfare and Institutions Code.
While this case was pending in the juvenile court, section 366.26 was amended. We cite the amended version of section 366.26.
FACTS
1.
DETENTION
On June 14, 2006, Mother wanted to go walking. Father did not want Mother to go walking, because their neighborhood is dangerous. The two argued, and the argument escalated into pushing. Sheriff’s Deputy Hurtado was informed by Mother and Father’s neighbors that Father kicked Mother and hit her face. A neighbor reported that I.W., who was two months old, had been hurt during the fight. I.W. was lying on the living room floor during Mother and Father’s fight, and Father stepped on I.W.’s abdomen. Father fled from the apartment after stepping on I.W. I.W. was taken to Loma Linda University Medical Center. I.W. suffered bruising on his abdomen.
At the detention hearing on June 21, 2006, the court found that a prima facie case had been made that I.W. had suffered or was at a substantial risk for suffering serious physical harm as result of his parents’ inability to adequately supervise and protect him. (§ 300, subd. (b).) The court ordered that I.W. be removed from Mother and Father’s custody. The court ordered the San Bernardino County Department of Children’s Services (the Department) to provide reunification services to Mother and Father; however, it was noted that Father was incarcerated at the West Valley Detention Center, due to the domestic abuse in the instant case.
2.
JURISDICTION/DISPOSITION
An employee of the Department interviewed Mother and Father. Mother reported that she and Father had dated for four years, and they frequently argue. Mother stated that Father suffers from bipolar disorder, and he stopped taking his medication several months before this incident. Mother said that her last three fights with Father had escalated to physical violence because Father was not taking his medications.
Father stated that he did not intend to step on I.W. Father confirmed that his fights with Mother recently began escalating into physical abuse due to Father not taking his medications for his bipolar disorder. Father said that he stopped taking his medications because he moved to Oklahoma to stay with his mother several months prior to this incident, and he did not want to transfer his prescriptions to an out-of-state pharmacy. Father explained that as a child Father had suffered physical and sexual abuse, and he wanted to care for I.W. so that I.W. would not suffer the same abuse that Father suffered. The Department’s report reflects that Mother and Father felt “terrible for what occurred.”
The court found the allegations in the amended petition to be true. The court found that I.W. had suffered or was at a substantial risk for suffering serious physical harm as result of his parents’ inability to adequately supervise and protect him. (§ 300, subd. (b).) The court ordered that I.W. continue to be removed from Mother and Father’s custody. The court declared Father to be I.W.’s presumed father.
On October 30, 2006, the Department informed the court that I.W. had been moved from a confidential foster care placement to his maternal great-aunt’s home. I.W.’s maternal great-aunt’s name is C.
3.
SIX-MONTH REVIEW
In the Department’s February 8, 2007, status review report, it is noted that Father was convicted of domestic abuse due to the offense involved the instant case, but had been released from custody. Mother and Father had been living with Mother’s mother until January 2007, when they became homeless. At the time of the report, Mother was approximately five months pregnant. Mother had an outstanding bench warrant for failing to appear on a misdemeanor charge. Mother and Father were unemployed, but Father was receiving social security payments for his bipolar disorder.
The Department provided Mother and Father with bus passes and referrals for shelters and housing. Both Mother and Father missed several appointments with the Department. Mother and Father were granted weekly supervised visitation with I.W. The visits were supervised by C. Mother and Father missed “a handful of visits” with I.W.
On December 19, 2006, C. informed a Department employee that Mother became physically violent with Father one week prior. Father’s mother told the Department that Father “should ‘not ever care for his son’” due to Father’s behavior and “refusal to take his medication for any length of time.”
Mother and Father attended parenting classes, but failed to complete any part of their case plan. On March 27, 2007, the court held a six-month review hearing in the matter. At the hearing, Mother testified that she was living in a shelter with Father. Mother testified that for the preceding three-month period she visited I.W. every week for two hours.
Father also testified at the hearing. Father stated that for the preceding six-month period he visited I.W. every week for an hour. During the visits Father held I.W. until I.W. fell asleep, then Father gave I.W. to Mother. Father testified that he completed 30 hours of parenting class, and needed to complete 10 more hours. Father stated that he was being paid cash to work at a tax service. Father said that he spent the cash he received on food, clothes for I.W., and paint guns.
Ms. Inman, a Department employee, testified that she never observed visitation between I.W. and Mother and Father. Ms. Inman said that Mother had missed a “handful” of visitation appointments with I.W., but Father had missed more appointments than Mother. C. expressed concerns to Ms. Inman about Mother and Father not scheduling visitation with I.W., but relying on relatives to schedule visits.
The court found that returning I.W. to Mother’s and Father’s care would be detrimental to I.W.’s welfare. The court ordered that the Department offer reunification services to Mother and Father for an additional six months.
4.
12-MONTH REVIEW
The Department’s July 24, 2007, status report reflects that Mother and Father lived in a tent near the Arrowhead Regional Hospital, and intermittently stayed with Mother’s mother and Mother’s grandmother. On June 20, 2007, Mother and Father were tested for drugs. Father tested positive for marijuana. On June 23, 2007, Mother gave birth to a boy, E.W., who was immediately taken into protective custody, due to the same concerns that required I.W. be taken into protective custody.
On September 13, 2007, the court held a contested 12-month review hearing. C. testified at the hearing. C. stated that when she took custody of I.W., Mother was living with Mother’s grandmother. During that time, Mother would call C., and C. would bring I.W. to visit Mother. However, in July, Mother moved to a motel with Father. The visits between Mother, Father, and I.W. became inconsistent. C. scheduled visitation appointments at a restaurant, but approximately 10 times Mother and Father failed to attend the appointments. C. testified that when Mother and Father moved to the shelter in Riverside, they did not visit I.W. for approximately three weeks. C. estimated that Mother and Father visited I.W. six times in July and six more times in August. C. testified that Mother and Father argue with each other during half of their visits with I.W.
Mother’s aunt, Angela, also testified at the hearing. Angela accompanied C. to the visitation appointments at the restaurant. Angela said that Mother and Father had missed visitation appointments “quite a bit.” Angela testified that, by chance, she saw Mother and Father in a grocery store parking lot. Mother was crying because Father was discussing the idea of returning to Oklahoma. Angela noticed that Father had a black eye. Mother told Angela that Father spit in Mother’s face, so Mother punched Father’s eye. Father had a black eye at the review hearing, but testified that he sustained the injury when he was the victim of a robbery.
Mother testified that she missed approximately four visitation appointments with I.W. Mother stated that Father always accompanied her to visit I.W.
The court found that it would be detrimental to I.W.’s welfare to return him to Mother’s and Father’s custody. The court terminated Mother’s and Father’s reunification services.
On November 28, 2007, C. contacted the Department. C. complained that Mother was not abiding by the court’s order to call C. 24 hours in advance of the visitation appointments to cancel or confirm the appointments. C. reported that Mother and Father had not visited I.W. for three weeks. C. requested that visitation appointments take place at the Department’s offices.
5.
TERMINATION
The Department’s January 11, 2008, report reflects that Mother’s and Father’s last visit with I.W. took place on December 5, 2007. Prior to that visit, Mother and Father had not visited I.W. for three or four weeks. On December 11, 2007, Mother and Father missed their visitation appointment; Father called C. and Angela throughout the day, threatening both of them. When yelling at Angela, Father said, “You [and] Carol[dyne] are [b]itches[.] You [m]other [f]uckers don’t know who you are messing with. I’m sick and tired of what you [m]other [f]uckers are doing to [Mother]. When I see you [b]itches I’m going to [f]uck you up[.]” As a result, the court ordered that a Department employee supervise the visits between Mother, Father, and I.W.
The Department’s report reflects that I.W. is developmentally delayed. I.W. has limited verbal skills—he does not respond to simple instructions and has trouble communicating his needs. C., who is 39 years old, hopes to adopt I.W., because she “‘loves him as [her] own child.’” C. reported that I.W. runs to greet her when she arrives home from work. C.’s mother babysits I.W while C. is working. The Department recommended that Mother’s and Father’s parental rights be terminated in order for I.W. to be adopted by C.
On February 1, 2008, the court held a contested termination hearing in the matter. Mother testified that when she visited with I.W. at her grandmother’s house, the visits would last from 8:00 a.m. until 6:00 p.m. Mother stated that the visits occurred four to seven times per week. Mother said that during the visits, she would feed I.W., play with I.W., and take naps with I.W. Mother testified that her visits were scaled back to one hour per week at the Department’s offices in November 2007, and that her visits had to take place separately from Father’s visits. Mother testified that I.W. and Father have a close bond; that the two are playful with one another; and that I.W. loves Father. Mother said that I.W. looks at Father and says, “Daddy.” Mother admitted that she last observed Father with I.W. in September 2007, due to their separate visitation schedules.
At the hearing, on direct-examination, Father testified that he visited I.W. every week, but missed one week due to illness. On cross-examination, Father stated that he never missed more than three weeks of visits with I.W. Father stated that when the visits took place at I.W.’s grandmother’s house, Father visited with I.W. for one to two hours. Father said that during the visits he fed I.W. and took naps with him. Father testified that I.W. recognized him and called him Daddy. Father opined that he had a strong bond with I.W. Father said in regard to I.W., “He knows who his dad is. He looks at [me] and he knows his dad. He loves [me] very much, and cares for [me].” Father testified that I.W. is always happy to see Father, and I.W. never cries when Father visits.
When discussing the parent-child bond exception at issue in this case, the court made the following remarks: “There is evidence that [Mother’s and Father’s] visitation has been sporadic at best. . . . [I.W.] does appear to be happy. Being happy does not equate to being bonded to the father. Recognizing someone and calling them Dada, if in deed [sic] that occurs, does not equate, in my view, to being bonded to the father such that it would outweigh the bond that’s demonstrated to the perspective [sic] adopt[ive] parents.” The court found that it was likely I.W. would be adopted. The court terminated Mother’s, Father’s, and all unknown fathers’ parental rights.
DISCUSSION
Father contends the juvenile court erred when it terminated his parental rights because I.W. would benefit from continuing a relationship with Father. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
In dependency proceedings, if a court finds that a child is likely to be adopted, then the court must terminate parental rights and order the child be placed for adoption. (§ 366.26, subd. (c)(1).) Only in exceptional cases, where termination would be detrimental to the child, may a court choose not to terminate parental rights. (§ 366.26, subd. (c)(1).) An exceptional circumstance that would cause termination of parental rights to be detrimental to a minor exists where (1) “[t]he parents have maintained regular visitation and contact with the child and [(2)] the child would benefit from continuing the relationship.” (§ 336.26, subd. (c)(1)(B)(i).)
We review the record to determine if substantial evidence supports the juvenile court’s finding that it would not be detrimental to I.W. to terminate Father’s parental rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) When reviewing a record for substantial evidence, we consider the evidence in the light most favorable to the prevailing party and resolve all conflicts in support of the juvenile court’s order. (In re Mary G. (2007) 151 Cal.App.4th 184, 206 (Mary G.).)
1.
REGULAR VISITATION AND CONTACT
We begin by addressing the first factor in the parent-child bond exception to termination, which is “regular visitation and contact.” (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court found that Father’s visits with I.W. had been “sporadic at best.” The court’s finding is supported by the following evidence: (1) During the time period relevant to the six-month review hearing, C. reported that Mother and Father missed a “handful” of visitation appointments, and Ms. Inman reported that Father missed more visitation appointments than Mother; (2) C. reported that from July 2007 to September 2007, Father missed approximately 10 visitation appointments that were scheduled to take place at a restaurant, and Father did not see I.W. for three weeks; (3) In November 2007, C. again reported that Father had not visited I.W. for three weeks; and (4) The Department’s January 11, 2008 report reflects that Father visited I.W. once in December 2007.
The foregoing evidence provides substantial support for the juvenile court’s finding that Father was not maintaining regular visits or contact with I.W., because Father missed many visitation appointments.
Father essentially argues that although he missed some visitation appointments with I.W., he regularly visited I.W., and therefore the court’s finding is not supported by substantial evidence. We agree that the record reflects Father visited I.W.; however, as Father acknowledges, he missed multiple visitation appointments. The missed appointments provide substantial evidence for the juvenile court’s finding that Father did not maintain regular visits or contact with I.W. Accordingly, we find Father’s argument unpersuasive.
2.
BENEFIT FROM THE RELATIONSHIP
We now address the second factor in the parent-child bond exception to the termination of parental rights—the benefit to I.W. from continuing the relationship with Father. (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court found that any bond I.W. might have with Father did not outweigh the bond I.W. had with C.
The phrase “benefit from continuing the relationship” has been interpreted to mean a parent-child relationship “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.’” (Mary G., supra, 151 Cal.App.4th at p. 207.) In order to prevail in this balancing test, “[a] parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (Ibid., fn. omitted.)
The record reflects that I.W. was two months old when he was taken into protective custody. At the six-month review hearing, Father testified that during his one- to two-hour visits with I.W., he often slept with I.W. or watched I.W. sleep. When Father received cash from a tax service, he spent the money on clothes for I.W. and paint guns. After E.W. was born, Mother and Father had difficulty focusing on both children at the same time, and C. had to separate I.W.’s and E.W.’s visitation to assist the parents with focusing on each child. C. reported that Mother and Father argued during half of their visits with I.W. At the termination hearing, Father testified that he spent his one- to two-hour visits with I.W., feeding I.W. and sleeping with I.W. Father testified that I.W. called him “Daddy”; however, Father did not mention I.W.’s developmental delays or limited verbal skills.
The evidence does not demonstrate that Father occupies a parental role in I.W.’s life. The evidence reflects only that Father often slept with I.W., sometimes fed I.W., and once bought I.W. clothes. We are unable to find evidence demonstrating that Father and I.W. have a significant, positive, emotional attachment.
In regard to C., the record reflects that I.W. runs to her when she arrives home from work. C. reported that I.W. sees her as his mother. I.W. was placed in C.’s home on October 27, 2006, and remained with her throughout the dependency proceedings. C. works as a nurse. On workdays, C. prepares breakfast and dinner for I.W. While C. prepares dinner, I.W. plays with C.’s children. C. also bathes I.W., and prepares I.W. for bed. On weekends, C. and the children visit relatives or go on family outings. The evidence demonstrates that C. and I.W.’s relationship includes day-to-day interaction and shared experiences, which has resulted in a significant, positive, emotional attachment between I.W. and C.
In sum, there is not substantial evidence that I.W. would benefit from continuing a relationship with Father; however, there is substantial evidence that I.W. has a significant, positive, emotional attachment to C.
Father argues that I.W. would benefit from a continuing relationship with Father because Father and I.W. had positive interactions and Father is the only known adult male in I.W.’s life. First, in regard to the positive interaction argument, we find this argument unconvincing, because frequent and loving contact or pleasant visits are not sufficient to prove a significant beneficial relationship. (Mary G., supra, 151 Cal.App.4th at p. 207.) Second, in regard to the argument that Father is the only adult male in I.W.’s life, we are also not persuaded by this argument. The record reflects that (1) Mother and Father fought during half of I.W.’s visits; and (2) Mother and Father were engaging in domestic violence as recently as the 12-month review hearing, as evinced by Father’s black eye. Accordingly, it does not appear that Father, as the only adult male in I.W.’s life, was playing a significant, positive, emotional role in I.W.’s life.
3.
CONCLUSION
Substantial evidence supports the court’s finding that terminating Father’s parental rights would not be detrimental to I.W. Accordingly, we find no error.
DISPOSITION
The order is affirmed as to both Mother and Father.
We concur: Ramirez, P.J., Gaut, J.