Opinion
F042234.
7-29-2003
In re KA. M. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WESLEY M., Defendant and Appellant.
Francia M. Welker, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.
Wesley M. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughters, Ka. and Ko.. Appellant contends the court erred when it did not find termination would be detrimental to the minors based on their relationship with him. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In late December 2000, respondent Fresno County Department of Children and Family Services (the Department) detained one-year-old Ka. and her older half-sister after social workers found the children, their mother and appellant living in a filthy home with health and safety hazards. The Departments ongoing investigation revealed evidence of domestic violence involving appellant and the mother. Also, both adults were substance abusers. Over time, the Fresno County Superior Court exercised its dependency jurisdiction ( § 300, subd. (b)) over Ka., adjudged her a dependent child of the court, removed her from parental custody and ordered reunification services for the parents. The Department placed Ka. and her half-sister with their maternal grandparents.
Then, in May 2001, the mother gave birth to Ko. Appellant was the newborns father. At the time, the mother was in a six-month residential perinatal treatment program, enabling her to keep custody of the newborn. By August 2001, the mother was doing well enough that the court authorized an extended visit for Ka. with her mother. In February 2002, the court placed Ka. with her parents on a family maintenance plan.
Then in late April 2002, the Department detained Ka. and Ko. after the mother and appellant admitted to using methamphetamines and failed to submit to numerous random drug tests. The Department placed Ka. and Ko. with their maternal grandparents.
Eventually, in August 2002, the court terminated the parents reunification services for Ka. because each of them did not fully comply with the case plan. At the same hearing, the court adjudged Ko. a dependent child and removed her from parental custody. Because appellant was not interested in reunification services, the court denied him services as to Ko. under section 361.2. It also denied the mother services based on her extensive drug abuse and resistance to treatment ( § 361.5, subd. (b)(13)). Then the court set a section 366.26 hearing to select and implement a permanent for the minors and referred the case for a consortium to mediate a post-adoption contact agreement for all the parties. At the request of the mother to which appellant joined, the court also ordered a bonding study.
The record appears to be silent as to why appellant did not request services. The Department had recommended services and appellant had recently completed inpatient treatment.
In anticipation of the section 366.26 hearing, the Department prepared an assessment in which it recommended that the court find the three minors adoptable and terminate parental rights. The maternal grandparents were committed to adopting the girls. The author of the assessment was unable to comment on the relationship between appellant and his daughters because he had not requested a visit since the court terminated and denied services. The author sent appellant a letter of introduction in early September 2002 but heard nothing from him until November when he called inquiring about the status of the case. In fact, according to a prior social worker report, appellant had not seen his children since early June.
Appellant did participate along with the childrens mother, however, in the court- ordered bonding study. The psychologist who conducted the study found that "a 60-70 percent parent/child relationship" existed. She attributed her qualification of the relationship to her observation that the parents seemed to want to work with the children more as friends and tried "to make them more like they are all peers together." Although she also acknowledged there was a substantial positive emotional attachment between the children and the parents, the psychologist did not believe the children would be greatly harmed if parental rights were terminated nor did she believe that continuing the parent/child relationship would promote the childrens well-being to such a degree as to outweigh the well-being they would gain in a permanent home with the grandparents. In this regard, she noted the grandparents strong skills at being able to nurture and provide structure for the children. The psychologist also mentioned that an open adoption was being discussed.
At the section 366.26 hearing, the Department and the minors submitted the case based on the Departments written assessment and the recently-completed psychological bonding study. Appellant took the stand on his own behalf. He was critical of the circumstances surrounding the bonding study, focusing on his feeling that the process was awkward. At the time, he and the childrens mother had been separated about two or three months. He acknowledged though that he and the mother were "pretty civil" to one another. Also, the appointment was awkward and not like a normal visit, according to appellant, because of the activities the psychologist directed them to complete with the children.
Appellant also testified he regularly visited with Ka. and Ko. ryna until August 2002 when he had an accident in which he shattered his ankle and broke his leg. Before then, he "probably" saw his daughters "twice a month." Between the accident and the bonding study, he saw them once while he was hospitalized.
Between Ka.s birth in 1999 and detention in December 2000, he was "pretty much the caretaker of Ka." He believed they had a "strong bond." By contrast, he testified he was first in jail when Ko. was born. Upon his release, he was in a residential treatment program so that he did not "live with her for very long." However, he did participate in her care.
He further described Ka.s enthusiasm to see him and talk with him on the telephone. He tried to call Ka. and Ko. "about every other day." Ko. was admittedly not as attached to him although she knew appellant was "daddy."
Following argument on the matter, the court found the minors adoptable and terminated parental rights.
Although appellant criticizes the court for not stating on the record the standard of evidence it applied, we find no basis for his claim of error. First, there was never any dispute that his children were adoptable. Second, the law presumes the trial court applied the correct statutory standard of proof. (Evid. Code, § 664; see also Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025.) If appellant seriously believed the court did not apply a clear and convincing standard of proof in finding the children adoptable, appellant should have raised the matter in the juvenile court.
DISCUSSION
Appellant contends the court abused its discretion by not finding termination would be detrimental under section 366.26, subdivision (c)(1)(A). According to appellant, he maintained regular visitation and contact with his daughters who would benefit from a continued relationship with him. As discussed below, we disagree.
Assuming the dependent childrens adoptability, which is undisputed here, the law presumes termination is in the childrens best interests and therefore not detrimental. ( § 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) In other words, the decision to terminate parental rights at the section 366.26 hearing is virtually automatic if the children are going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) As the state Supreme Court has observed, by the time of a section 366.26 hearing for children who are adoptable, "it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, 851 P.2d 1307.) It is truly only in the exceptional case that a court may select a permanent plan other than adoption. ( § 366.26, subd. (c)(1); In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.) A finding of no detriment is not a prerequisite to the termination of parental rights. (Ibid.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. (Id. at p. 1351.)
On review of the record, we find no abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318, 867 P.2d 706.) Section 366.26, subdivision (c)(1)(A) authorizes a finding of detriment when a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. First, it is unclear that appellant maintained regular visitation and contact with his daughters. However, even assuming regular visitation and contact on his part, appellant did not establish Ka. and Ko. would benefit from continuing the relationship such that the court was compelled to find detriment. Our review of the record fails to disclose any evidence that the lack of continued relationship between appellant and his daughters would be detrimental to the children.
In large part, appellant criticizes the bonding assessment and the psychologists discussion of the grandparents superior parenting skills. By doing so, appellant overlooks the fact that the law does not require a bonding study in order for a court to terminate parental rights. (See In re Lorenzo C., supra, 54 Cal.App.4th at p. 1340.) Rather, the bonding study addresses the parents claim that termination would be detrimental. The fact that it did not support appellants claim does not mean there was insufficient evidence for the court to select adoption as the childrens permanent plan. Furthermore, appellants attack on the psychologists opinions appears to be nothing more than an invitation for this court to reweigh the evidence. That is something, however, we as a court of review may not do. (In re Laura F. (1983) 33 Cal.3d 826, 833, 191 Cal. Rptr. 464, 662 P.2d 922.)
Appellant also appears to forget that although the preservation of a minors family ties is one of the goals of Californias dependency laws (see § 202, subd. (a)), family preservation ceases to be of an overriding concern once the juvenile court terminates reunification services. Then, the focus shifts from the parents interest in reunification to the childs interest in permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309, 851 P.2d 826; see also In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340.)
Finally, in In re Lorenzo C., supra, 54 Cal.App.4th 1330, 1342, this court also observed:
"the existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship 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 parents rights are not terminated. (Id. at p. 575.)"
Applying this standard to the facts of this case, we find no error. Absent evidence compelling a different result, we once again conclude the court did not abuse its discretion by rejecting appellants claim. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
DISPOSITION
The order terminating parental rights is affirmed.