Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County Nos. JJV064024C & JJV064024D Hugo J. Loza, Commissioner.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Detjen, J., and Franson, J.
Frank G. (father) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to his twin sons. He contends the juvenile court erred by rejecting his argument that termination would be detrimental to the twins. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The twins were born prematurely in February 2009. At their birth, they, along with their mother, tested positive for methamphetamine. No action was taken at the time to detain the twins because their mother appeared willing to participate in services. Father also had a history of substance abuse.
One of the twins spent more than the first two months of his life hospitalized at a university pediatric hospital due to a number of serious health problems and special needs. When this special needs twin was discharged in May 2009, he was prescribed a special formula, and arrangements were made so that the formula could be delivered to the parents’ home. However, the delivery reportedly could not be made because no one answered at the phone numbers the parents provided. This raised concern about how the special needs twin was receiving nourishment.
The special needs twin was admitted to another university hospital in June 2009 for respiratory problems. During the first five days of the child’s hospital stay, the parents were periodically at his bedside. According to nurses’ daily logs, father held the child one day as well as fed, bathed, and held the child another day. But when the special needs twin was scheduled to be discharged, neither parent could be found. They also failed to participate in his discharge planning, which included training. Days after the scheduled hospital discharge, the parents still had yet to contact the hospital. The parents’ failure or inability to provide adequate medical treatment, as well as their substance abuse, placed the twins at continuous risk of suffering serious physical harm or illness.
Consequently, in late June 2009, respondent Tulare County Health and Human Services Agency (agency) detained the twins, who were then four months old, and initiated the underlying dependency proceedings. The juvenile court subsequently exercised its dependency jurisdiction over the twins and removed them from parental custody. By this point, the agency had placed the twins with the maternal grandparents, who had been trained to care for the special needs twin. The court ordered reunification services for the parents.
Father completed a 30-day treatment program in November 2009 and participated in some aftercare. He also tested negatively for drugs. The mother similarly completed a 30-day inpatient treatment program and was testing clean. Consequently, in mid-December 2009, the agency returned the twins to the parents’ care with family maintenance services.
Two and a half months later, the agency redetained the twins and filed a supplemental petition for a more restrictive placement. According to the supplemental petition, both parents were again using controlled substances, not participating in random drug testing, and not attending NA/AA meetings. In addition, the parents had left the special needs twin in the care of the maternal grandmother, but without advising the agency.
After the department returned the twins in December, mother signed papers giving custody of the special needs twin to the maternal grandmother.
The juvenile court found the allegations of the supplemental petition true. At a May 2010 dispositional hearing on the supplemental petition, the juvenile court ordered the twins’ continued out-of-home placement and terminated reunification services for the parents.
The juvenile court in turn set a September 2010 section 366.26 hearing to select and implement a permanent plan for the twins. It also limited visitation to supervised once-a-month visits.
The agency later submitted a report in which it recommended the court find the twins were likely to be adopted and order parental rights terminated. It identified the maternal grandparents as the twins’ prospective adoptive parents. The twins’ primary relationship was with the maternal grandparents. The parents had not participated in the day-to-day care of the twins.
In its permanency planning report, the agency also noted there had been consistent parent/child visitation. At the end of the visits, the twins were “satisfied to stay in the care of the maternal grandparents and [did] not have any separation anxiety.” Despite its recommendation for adoption as the twins’ permanent plan, the agency also recommended that court-ordered visitation between the twins and their parents continue “as the prospective adoptive parents want them to be an ongoing part of their life [sic] as long as their contact is not detrimental to the [twins] in any way.”
By the time the court conducted the permanency planning hearing in late September 2010, the agency had filed two addendum reports. Relevant to this appeal, those reports included the following information.
The twins had spent more than half of their short lives in the care of their maternal grandparents who met their daily needs. The twins had a strong attachment and bond to the maternal grandparents. It was reported to the agency that the twins were happy to see their parents, but had no anxiety at the end of their visits. The maternal grandparents had communicated that if they were allowed to adopt and they perceived that the parents were finding some stability in their lives, the grandparents would allow the parents visitation. The parents could be a part of the twins’ lives if they could prove they have some long term stability. “But only if the additional visits do not cause detriment to the [twins].”
The agency also submitted new recommended findings and orders for the court to consider. They did not contain an order for continued visitation.
At the September 2010 hearing, counsel for the agency made certain the court had received the agency’s permanency planning and addendum reports. Neither parent had any evidence to introduce. Father’s counsel argued that father had maintained regular visitation. The attorney also pointed to the agency’s previous recommendation for continued visitation and urged the court not to terminate parental rights. Counsel for the agency clarified that the agency had submitted new recommended findings and orders and was not asking the court to order visits. Counsel argued the previous recommendation was an attempt to emphasize the parents had been involved.
The juvenile court rejected the argument by father’s counsel. It observed the more persuasive argument was “not to terminate would be detrimental” to the children. It then followed the agency’s recommendation and terminated parental rights.
DISCUSSION
Father contends the juvenile court erred because there was insufficient evidence to reject his argument that there was a beneficial parent/child relationship between the twins and him (§ 366.26, subd. (c)(1)(B)(i)). We disagree.
Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child’s best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) It is the parent’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 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.) The decision is not reviewed, as father argues, for substantial evidence that termination would not be detrimental.
For 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.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting father’s argument.
Although father maintained regular visitation with the twins, there was no evidence that severing the relationship would deprive either twin of a substantial, positive emotional attachment such that either of them would be greatly harmed. There was only evidence of visits that went well. Even so, when visits came to an end, the twins were satisfied to stay in the care of the maternal grandparents and did not have any separation anxiety. Despite father’s argument otherwise, there was no evidence that the twins were bonded to him or that he acted in a parental role toward them when they lived with him. Father’s claim that there was testimony to that effect is not supported by the record. At most, there were the June 2009 nurses’ logs that father held the special needs twin one day as well as fed, bathed, and held him on another day.
To the extent father relies on the agency’s original recommendation that visitation continue, he overlooks the fact that the agency later rescinded that recommendation. Although there was also evidence that the maternal grandparents were willing to permit both parents to be a part of the twins’ lives in the future, such willingness was contingent on the parents’ proving some long term stability, something which had yet to occur.
On review, we conclude father failed to affirmatively establish that termination would be detrimental to the twins. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) The juvenile court did not abuse its discretion by rejecting what was nothing more than argument on father’s part. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
DISPOSITION
The orders terminating parental rights are affirmed.