Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County, No. JJV064457D, Charlotte A. Wittig, Commissioner.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
Juan C. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his 20-month-old son and namesake. Father contends he established termination would be detrimental to the child because of their parent-child relationship (§ 366.26, subd. (c)(1)(B)(i)), and the court’s decision rejecting his argument and terminating parental rights was not supported by substantial evidence. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In January 2010, when the child was seven months old, his parents were arrested on domestic violence-related charges. The parents had a history of domestic violence and their conduct placed the child at continuous risk of suffering serious physical harm or illness. As a result, respondent Tulare County Health and Human Services Agency (agency) detained the child in foster care and initiated the underlying dependency proceedings.
Over time, the juvenile court exercised its dependency jurisdiction over the child (§ 300, subd. (b)), removed the child from parental custody, and granted the parents reunification services. Although the parents failed to participate regularly and make substantial progress in reunification services, they did visit weekly with the child. The court previously ordered weekly, two-hour supervised visits.
The visits were appropriate with both parents expressing love and affection for the child. They played with him, as well as hugged and caressed him. The child appeared to reciprocate. According to the child’s foster mother, the child seemed to enjoy visits. Also, his behavior was reportedly no different before or after visits. He was a very playful child and enjoyed the company and attention of everyone. While the child did seem to recognize his parents during visits, he also recognized his social worker. The child showed no distress upon leaving his parents at the end of visits.
Due to the parents’ failure to participate regularly in services, the juvenile court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for the child. It also continued its weekly visitation order.
An adoptions social worker with the agency later prepared a “366.26 WIC Report” in which he recommended that the court find the child adoptable and terminate parental rights. Because there is no dispute that the child is likely to be adopted, we do not summarize the evidence regarding the child’s adoptability here.
The social worker also summarized the recent visitation between the child and the parents. The parents had been diligent in visiting the child and acted appropriately in their interaction with him. They brought food and gifts for him. The child was consistently calm when he arrived for visits and left the visits without protest. He also did not initiate interaction with the parents. After the visits, the child happily and cheerfully returned to his foster parents. In the adoptions social worker’s opinion, the child had no beneficial contact with the parents.
A court appointed special advocate for the child (CASA) similarly reported that the parents had weekly, supervised visits with the child. The CASA added that the child’s behavior was not impacted before or after those visits.
At the section 366.26 hearing, father testified on his own behalf. He confirmed his regular visits with the child who was then approximately 20 months old. Sometimes, father brought the child food, clothing or toys. In father’s opinion, the child recognized him. He smiled when he saw father. At the latest visit, the child cried when father left. Father played with the child during visits as well as changed the child’s diaper and sometimes his clothes.
In father’s opinion, the child was attached to him, and that the two of them shared a bond. It was also father’s opinion that it would be in his best interest to continue to be the child’s father. Father wanted “to make him study and make him go ahead in life, give him a family.”
In closing argument, father’s attorney urged the juvenile court to find based on father’s testimony that a statutory exception applied and termination would be detrimental to the child. The juvenile court found father had not met his burden of establishing the statutory exception. Having found the child likely to be adopted, the court terminated parental rights.
DISCUSSION
Father contends the juvenile court’s decision to terminate parental rights was not supported by substantial evidence. According to father, he established that he maintained regular visitation with the child, and the child would greatly benefit from a continued relationship with him. Also, in father’s view, there was no evidence from which the juvenile court could reasonably conclude termination would not be detrimental and adoption was in the child’s best interest.
Father’s argument is meritless. As discussed below, it ignores the standard of review we apply and the law regarding termination as well as the conflicting evidence before the court.
Once the juvenile court has terminated reunification services, its focus shifts to the child’s needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as here, the child is likely to be adopted, adoption is the norm. (In re Celine R. (2003) 31 Cal.4th 45, 53.) The statutory presumption is that termination is in the child’s best interests and not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
The juvenile court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances in section 366.26 provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.) Further, it is an opposing party’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
“the parent-child relationship [must] 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., supra, 54 Cal.App.4th at p. 1342.)
When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) It is not, as father argues, whether substantial evidence exists to prove a negative, i.e., termination would not be detrimental.
For this court to find an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Here, father cites almost exclusively to his testimony, while ignoring the contradictory evidence before the court, in the form of the agency and CASA reports.
There is no question that father maintained regular visits with the child and those visits were pleasant, loving occasions for both parent and child. However, interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Consequently, a parent must demonstrate more than pleasant visits or frequent and loving contact for the beneficial relationship exception to apply. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
Here, there was no evidence that the child had a substantial, positive emotional attachment to father, let alone that the child would be greatly harmed if their relationship were severed. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) On review, we conclude the juvenile court properly exercised its discretion by rejecting father’s argument and terminating parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
DISPOSITION
The order terminating parental rights is affirmed.