Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County No. 09CEJ300250-2 Jane A. Cardoza, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Detjen, J.
M.D. (father) appealed from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his son, Justice. After reviewing the entire record, father’s court-appointed appellate counsel informed this court he found no arguable issues to raise. Counsel requested and this court granted leave for father to personally file a letter setting forth a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father has since filed a letter in which he raises numerous complaints dating back to the outset of Justice’s dependency. As discussed below, we conclude none of father’s complaints amount to a good cause showing that an arguable issue of reversible error does exist. (In re Phoenix H., supra, 47 Cal.4th at p. 844.)
PROCEDURAL AND FACTUAL HISTORY
When Justice was born in 2009, his mother tested positive for methamphetamine and marijuana. As a consequence, respondent Fresno County Department of Social Services (department) detained Justice in foster care and initiated the underlying proceedings. The department alleged and the juvenile court found true that the mother and father placed Justice at a substantial risk of harm due to mother’s drug use, father’s failure to protect Justice from his mother’s drug use, and the parents’ domestic violence.
In February 2010, the juvenile court adjudged Justice a dependent child and formally removed him from parental custody, having found by clear and convincing evidence that there would be a substantial risk of detriment to the child if he were returned home. The court in turn granted the mother reunification services. However, it denied father services because: he had an extensive history of drug use; he failed to reunify with three other children of his who were subsequently ordered into long-term foster care; and he continued to use marijuana, despite substance abuse treatment. (§ 361.5, subd. (b)(10) & (13).) At the time the court denied father services, it was aware he had a medical marijuana card. Father did not appeal from the juvenile court’s dispositional findings and orders.
When the mother later failed to reunify with Justice, the juvenile court terminated services for the mother and set a section 366.26 hearing to select and implement a permanent plan. Meanwhile, the court granted father’s request that the department assess his sister for possible placement, with the understanding that Justice’s foster parent was willing to adopt him. The court also continued a once-a-month visitation order for father and Justice, despite the fact that father had not visited the child for approximately seven months.
Father sought extraordinary writ review following the juvenile court’s setting order. (Cal. Rules of Court, rule 8.452.) However, he essentially challenged the bases for the juvenile court’s previous jurisdictional and dispositional findings and orders.
This court denied father writ relief. (F060937; M.D. v. Superior Court.) In our opinion, we explained father waived his opportunity to raise such issues by his failure to file a timely appeal from the juvenile court’s February 2010 dispositional order. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)
The department later prepared a report in which it recommended that the court find one-year-old Justice was likely to be adopted and order termination of parental rights. Not only was it likely that Justice would be adopted, the foster mother, who had cared for him since he was two days old, was very committed to adopting Justice.
At the contested section 366.26 hearing, there was no need to change Justice’s placement and no one had made a modification request (§ 388) for the court to change Justice’s placement. Consequently, the juvenile court ruled that issues regarding Justice’s placement, such as the assessment of father’s sister, were not properly before the court.
During the contested hearing, the current social worker testified she had observed a January 2011 visit between father and Justice. At the beginning of the visit, Justice cried a little bit. Also, about 40 minutes into the one-hour visit, he cried again and started walking toward the door. He called “‘Mama, mama, ’ and want[ed] to get out the door.” Otherwise, Justice was fine in his interaction with father. Father was appropriate and affectionate toward Justice. Throughout Justice’s life, father visited him less than 10 times.
Father also testified at the hearing. Although he did not know how many visits he had with Justice, he knew it was more than 10. Father admitted that Justice cried at each visit when the foster mother left the room. Once father and son started to play, the child was fine. Father also fed Justice, changed his diapers, and read books to him during the one-hour visits. Father believed there was an “emotional, special bond” between him and Justice. Father based his belief on Justice’s interaction with him by the child’s laughing and singing. Father also claimed he would have visited more if “they” had made more attempts to set up visits.
In closing argument, father’s attorney argued there was an attachment between father and Justice despite what appeared to be a lack of visitation. She asked the court to find that Justice would be harmed if rights were terminated and he lost the opportunity to know his father.
Having found the child adoptable, the juvenile court terminated parental rights.
DISCUSSION
In his letter to this court, father raises numerous complaints. The majority of them relate to the juvenile court’s late 2009 and early 2010 decisions to exercise dependency jurisdiction over Justice, remove him from parental custody, and deny father reunification services. As we explained in our earlier opinion, father forfeited such arguments by not appealing the juvenile court’s February 2010 dispositional order. (Steve J. v. Superior Court, supra, 35 Cal.App.4th at pp. 811-812.)
Father claimed: he could adequately care for Justice; he did all he could to help the child’s mother with her drug addiction; the court erroneously used his past and his use of marijuana to declare him unfit to parent Justice; he (father) was never involved in domestic violence; and he did his part to receive reunification services, but was set up for failure.
Otherwise, father attempts to raise three claims of error which appear to be timely, but nonetheless are not arguable. One, he claims the department did not properly assess his sister for placement purposes. However, there is no evidence to support his claim, and it is his burden as appellant to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In any event, as the juvenile court pointed out, there was no reason to change Justice’s placement at the time of the section 366.26 hearing. (§ 361.3, subd. (d) [consideration for relative placement following the dispositional hearing is given whenever a new placement must be made].)
Two, father speaks of his love for Justice and claims he attempted to visit Justice, and was appropriate and caring towards him during their visits. Assuming father means to argue that the court should not have terminated his rights due to his relationship with Justice, father nevertheless misunderstands the law.
Once a dependency proceeding reaches the permanency planning stage as in this case, if the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of several specified statutory circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
It is the parent’s burden to show that termination would be detrimental under one of those statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) One of those exceptions, 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. (1997) 54 Cal.App.4th 1330, 1342.)
In this case, it was undisputed that father did not visit with Justice for at least six months of the child’s dependency. In any event, there was no evidence that Justice had such a substantial, positive emotional attachment to father that the child would be greatly harmed by termination.
Last, father claims the court violated his due process right to maintain a relationship with Justice. Again, father misunderstands the law.
Before the state may sever a parent’s rights in his natural child, due process mandates the state’s allegations be supported by evidence that is, at a minimum, clear and convincing. (Santosky v. Kramer (1982) 455 U.S. 745, 747-748; (Santosky).) Once the state has shown a parent unfit, the juvenile court may then assume the child’s interests have diverged from those of his or her natural parent. (Id. at p. 760.)
California’s dependency system comports with Santosky’s requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have previously found that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) A court’s finding of detriment, i.e., that awarding custody of a dependent child to a parent would be detrimental to the child, is the equivalent of an unfitness finding. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)
Furthermore, once reunification services are ordered terminated, the juvenile court’s focus shifts from the parent’s interest in the child to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Provided the necessary finding of detriment has been previously made, as in this case at the dispositional hearing, there can be no merit to father’s due process argument.
In conclusion, an appealed-from judgment or order is presumed correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) It is up to an appellant to raise claims of reversible error or other defect and present argument and authority on each point made. If an appellant does not do so, the appeal should be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Here, father does not raise any arguable claim of reversible error or other defect against the termination order from which he appeals.
DISPOSITION
This appeal is dismissed.