Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. JUV-093632. Gary L. Vincent, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Janette F. Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ P.J.
Defendant and appellant E.R. (father) is the father of J.R. (child). Father contends that the juvenile court erred when it terminated his parental rights and selected adoption as the child’s permanent plan. Specifically, father argues substantial evidence does not support the juvenile court’s decision not to apply the beneficial parent relationship exception to the preference for adoption, found at Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). As discussed below, we conclude that substantial evidence supports the juvenile court’s decision, in that father did not maintain regular visitation and contact with the child, and the child did not have such a positive attachment to father that it would outweigh the benefits to the child of adoption.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
Initial Detention
The child was taken into protective custody in August 2006, days after his birth and as he was to be released from the hospital. The child’s mother (mother) tested positive for opiates and amphetamines at the child’s birth, and later tests showed mother had methadone and methamphetamine in her system as well. The child exhibited symptoms of withdrawal from the illegal drugs in his system, and was treated in the hospital for more than 20 days. The child continued to experience withdrawal symptoms after being placed in a foster home.
Mother is not a party to this appeal.
The Department of Public Social Services (department) filed a petition under section 300 on August 15, 2006. Regarding father, the petition alleged under subdivision (b) that he had failed to protect the child from mother’s substance use, had his own extensive history of drug abuse, and had an extensive criminal history, including possession of narcotics, petty theft, and burglary.
At the detention hearing on August 16, 2006, the juvenile court found that prima facie evidence supported the child’s detention.
Jurisdiction and Disposition
At the jurisdiction and disposition hearing on September 7, 2006, father and mother admitted the allegations. The juvenile court found jurisdiction, ordered reunification services, ordered visitation to be increased to twice weekly, and indicated that it would consider placing the child with the parents on family maintenance at the end of October if they continued to successfully participate in their case plan, including drug treatment and testing.
The child was placed with the parents on family maintenance on October 29, 2006. On February 5, 2007, father tested positive for opiates and had to temporarily move out of the home he shared with mother and the child while regaining his sobriety. At the six-month review hearing held on March 20, 2007, the juvenile court granted additional family maintenance services and set the one-year review hearing for September 24, 2007.
Supplemental Petition
On August 14, 2007, before the one-year review hearing could be held, the department filed a supplemental juvenile dependency petition under section 387. The supplemental petition alleged that mother had tested positive for opiates on July 18 and July 31, 2007, and had provided a diluted urine sample on August 7. The petition also alleged that father had tested positive for opiates on July 18, 2007, and was arrested on July 29. The department recommended the parents participate in residential drug treatment. The department removed the child from the parents’ home on August 10, 2007, and placed him with the paternal grandparents. The juvenile court formally detained the child on August 15, 2007.
The one-year review hearing on the initial petition and the jurisdiction/disposition hearing on the supplemental petition were continued a number of times and was finally held on March 18, 2008. The juvenile court found the allegations in the supplemental petition to be true, and terminated/denied family reunification services. The court also set a selection and implementation hearing for July 17, 2008.
Selection and Implementation
The child was placed with the prospective adoptive family, a paternal cousin, on April 25, 2008. The selection and implementation hearing was eventually held on September 29, 2008. After hearing argument from all parties, including from father asking for guardianship rather than adoption based on his regular visits with the child and the child’s attachment to him, the juvenile court terminated the parental rights of both mother and father and ordered adoption as the permanent plan. This appeal followed.
Discussion
Father argues that the court’s order terminating his parental rights should be reversed because the juvenile court erred when it declined to apply the beneficial parent relationship exception to the preference for adoption.
In pertinent part, the exception set forth at section 366.26, subdivision (c)(1), provides as follows: “[T]he court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
“‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53, italics omitted.) “The parent has the burden to show that the statutory exception applies.” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To meet this burden, it is not enough for the parent to show he or she occupies “a pleasant place” in the child's life (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324) or to show “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The exception does not apply “when a parent has frequent contact with but does not stand in a parental role to the child.” (Id. at p. 1420.)
For the exception to apply, the parent must show “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 to 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, father maintained regular visitation and contact with the child during the initial portion of the dependency, but regrettably not during the later portion. From February to May of 2008, Father lost contact with the department and simply did not visit the child at all. Father visited with the child three times in June 2008, and attended his birthday party in July 2008. However, he did not participate in a monthly family visit held on August 19, 2008.
Even if we were to agree with father that he maintained regular visitation and contact, father did not meet his burden to establish that the benefit to the child from continuing the parental relationship would outweigh the benefit to the child from gaining a permanent home with the adoptive parents. Not long after being removed from the parents’ care on family maintenance in August 2007, the child did exhibit sadness at the end of visits. After a visit in September 2007, the social worker noted: “When his parents left the placement, [the child] appeared sad that he was looking for his parents and his facial expression was very unsecured and unhappy.” However, by January 2008, although the child enjoyed visits with his parents, he no longer cried when they were over. The child then did not see his parents until June 2008, during which family visit he “appeared to remember his parents but not his half siblings.” That is the full extent of the evidence on the record as to the child’s ongoing positive attachment to father. This is certainly not enough to meet father’s burden to establish that the child would benefit more from continuing his relationship with father than he would from being adopted. We thus affirm the juvenile court’s finding that the parental relationship benefit exception to the presumption for adoption does not apply here.
Disposition
The juvenile court’s orders are affirmed.
We concur: GAUT J., KING J.