Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Super. Ct. No. JV 42980, Roger T. Picquet, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Guadalupe G., Appellant.
Karen B. Stalter, under appointment by the Court of Appeal, for Rhianna G., Appellant.
James B. Lindholm, Jr., County Counsel, County of San Luis Obispo, Patricia A. Stevens, Deputy County Counsel, for Respondent.
YEGAN, Acting P.J.
Guadalupe G. (father) and Rhianna G. (mother) appeal the trial court's orders terminating their parental rights to their four children, Karina G., born in February 1997, Mercy G., born in May 2000, Gino G., born in July 2002 and Sophia G., born in May 2004. Mother and father contend the trial court erred because there issubstantial evidence that they regularly visited the children and that the children would benefit from continuing the parental relationship. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) In addition, father contends the trial court lacked jurisdiction to enter a continuing visitation order after it had terminated parental rights. We affirm.
All statutory references are to the Welfare & Institutions Code unless otherwise stated.
Facts
This dependency proceeding was initiated because father beat mother on August 12, 2004, and again on October 7, 2004. On both occasions, the children witnessed father's lengthy, violent assaults on mother. The August assault began while mother was driving with the entire family in the car. Both incidents were fueled by the parents' heavy consumption of alcohol.
After their initial detention, the children were returned to mother's custody. She took them to live with father's parents, the paternal grandparents. The case plan required each parent to participate in substance abuse and domestic violence prevention programs. Mother did not comply with her case plan and continued to drink heavily. Father did not obtain treatment or domestic violence counseling while in custody.
When father was released from custody on November 19, 2004, he went to live with mother and the children in his parents' home. He was arrested again on December 7, 2004, on a vandalism charge. Father eventually pleaded guilty in connection with the August assault. Charges relating to the October assault were dismissed. Father was sentenced to 120 days in jail.
Meanwhile, mother and the children stayed with the paternal grandparents. Mother continued drinking and disappeared on several occasions, taking one or more of the children with her. In January 2005, after mother and the children had been missing for about one week, the children were found, taken into protective custody and placed with their paternal grandparents. Father remained in jail throughout this period.
Mother eventually moved into a sober living home and began addressing her alcoholism. However, when father was released from custody, she left that facility and the couple moved into a rented house with their children. They resumed heavy drinking and fighting almost immediately. One morning in mid-July 2005, mother was found in her truck, drunk and unconscious with the 14-month old Sophia asleep beside her. All four children were again taken into protective custody and placed with the paternal grandparents. Meanwhile, father was arrested again, this time for public intoxication. On August 24, 2005, he was arrested for driving while intoxicated. On August 21, 2005, mother committed the same offense and caused an accident while Sophia was with her in the car. Mother was incarcerated and the children were again detained. In January 2006, father was again arrested for giving false identification to a police officer. He remained in custody until mid-March 2006.
At the 12-month review hearing, continued to May 2006, both parents had been out of custody for about two months. The three older children were living with their paternal grandparents while mother and father sought treatment for their alcoholism in separate sober living homes. Mother was accepted into a residential treatment program that allowed her to maintain custody of the infant Sophia. Neither parent made substantial progress in treatment.
When the 18-month status review hearing was held in late July 2006, mother had been discharged from a residential treatment program for breaking its rules. Sophia was returned to the custody of her paternal grandparents because mother was no longer participating in treatment. Father left the sober living house without completing substance abuse treatment or learning coping skills for anger. He and mother were living in a mobile home on his brother's property. The home was in a state of disrepair and did not have power or a septic system.
After a two-day evidentiary hearing, the trial court found that the minors could not reunify with their parents because neither parent had found a suitable home, completed domestic violence counseling or resolved their substance abuse problems. The trial court ordered the termination of reunification services and scheduled a permanency planning hearing for November 21, 2006.
Father sought writ review of the order terminating reunification services and setting the permanency planning hearing. We denied the writ. (In re Karina G., Nov. 13, 2006, B192964.) While the writ proceeding was pending, the trial court ordered a bonding study at mother's request.
Mother and father defied the recommendations of the Department of Social Services and their respective treatment teams by living together, continuing to drink alcohol and failing to address their frequent episodes of domestic violence. This created a chaotic, emotionally damaging home environment which the parents refused to recognize or remedy. The bonding study concluded that the children have an "anxious attachment" to mother and "show the emotional sequela of trauma experienced as a result of the turmoil of their family situation." The evaluator described Karina, the oldest child, as having "internalized a great deal of conflict," become "parentified," as a result of taking on too much responsibility at a young age, and as being "at risk for major depression." Gino, who was then four years old, experienced periods of aggressive behavior, was described as emotionally troubled and had a speech impediment. Six-year old Mercy, "evidenced some confusion and currently exhibits signs of anxiety." The children had an overwhelming need for stability and safety in their environment which, the bonding study concluded, mother could not provide because "she failed to recognize the emotional impact on the children [of her behavior] and [failed] to respond in a reassuring and comforting manner."
Initially, the children's CASA volunteer recommended a guardianship with the paternal grandparents, rather than adoption, because she observed a bond between the biological parents and the children. By January 2007, however, the CASA volunteer had changed her recommendation to adoption. She described the paternal grandparents' home as "safe and stable . . . [,]" and noted that mother and father had not been able to provide such a home for their children. According to the CASA volunteer, the parents "have not successfully completed their recovery programs and are not in compliance with their case plans. Parents currently live together despite their tumultuous relationship."
At the section 366.26 hearing, the trial court found clear and convincing evidence that the children were adoptable, based on their stable placement with the paternal grandparents. It further found that, although the children would derive some benefit from continued contact with mother and father, that benefit was outweighed by their need to live in a permanent, stable and safe adoptive home. The trial court indicated a willingness to provide visitation for the biological parents but terminated their parental rights with respect to each child.
Discussion
Beneficial Parental Relationship
Mother contends the trial court erred in terminating her parental rights because there is substantial evidence that the children would benefit from continuing their relationship with her. Section 366.26 requires the trial court to terminate parental rights and select adoption as the permanent plan if it finds, by clear and convincing evidence, that the child is likely to be adopted, unless it finds "a compelling reason for determining that termination would be detrimental to the child" because one of the enumerated statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(E).) Mother contends the first such exception, known as the beneficial parental relationship exception, applies. (§ 366.26, subd. (c)(1)(A).) To fall under this exception, mother bears the burden to prove that she has "maintained regular visitation and contact with the minor[s] and the minor[s] would benefit from continuing the relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Establishing the existence of a beneficial parental relationship requires more than "frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Mother must prove that she "occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (Id.) It is only where severing the parental relationship "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed" that the statutory preference for adoption is overcome and parental rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Substantial evidence supports the trial court's determination that the children's need for a stable, safe, permanent adoptive home outweighs the benefit they receive from maintaining their legal ties to mother. As the bonding study demonstrated, these children have endured, for most of their young lives, a home environment dominated by alcohol abuse, domestic violence, and emotional turmoil. They are in desperate need of the safe, stable and permanent home they have found with their paternal grandparents. After three years of access to services -- including substance abuse treatment, sober living opportunities, and domestic violence counseling -- mother remains incapable of providing that environment. According to the evaluator, the children have an "anxious attachment" to her and suffer emotional trauma when they are in her custody. The trial court correctly determined that they would suffer more harm from continuing an impermanent placement than they would from severing their "anxious" and emotionally damaging ties to mother. Its decision to terminate her parental rights is supported by substantial evidence.
For similar reasons, we reject father's contention that the children would benefit from continuing their relationship with him. Father repeatedly victimized these children by allowing them to witness his repeated assaults on their mother. He has, according to his treatment team, no insight into the harm this domestic violence has already done to the children and no demonstrated ability to stay away from mother or refrain from brutalizing her. Even if father abstains from alcohol use, there is no evidence he will abstain from domestic violence. The children require a home environment that is free of violence. Father failed to prove that he is capable of providing it. Substantial evidence supports the trial court's determination that the benefit the children derive from a permanent, safe adoptive home outweighs the benefit they derive from continuing a parental relationship with father.
Visitation
Father contends the trial court lacked jurisdiction to order continued visitation as part of the permanent plan for adoption. We agree. The trial court lacks jurisdiction to make a visitation order after it enters an order terminating parental rights. (In re Jacob E. (2004) 121 Cal.App.4th 909, 925.) It made no such order here. Although its comments from the bench indicated a willingness to consider incorporating visitation into the adoption order, its written orders permit visitation only until the adoption is finalized and only at the discretion of the Department of Social Services. This compromise recognizes that a bond exists between the children and their biological parents, even though that bond is insufficient to prevent the termination of parental rights. It also permits, but does not require, the Department of Social Services to allow visitation during the transition period. There was no error.
Conclusion
The judgment (orders terminating parental rights) are affirmed.
We concur: COFFEE, J., PERREN, J.