Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 06CEJ30037, Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J., and Dawson, J.
Donald K. appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his son M.K. Appellant’s appointed appellate counsel submitted a letter dated March 14, 2008, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated March 18, 2008, we extended time for appellant to personally file a letter brief.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant has filed such a letter brief with this court. In it, he complains in large part about the facts underlying the court’s 2006 exercise of jurisdiction over M.K. He also argues he was never given a chance to maintain a relationship with his son; appellant blames his incarceration, the court’s 2006 finding that visits would be detrimental to M.K., and later still his parole conditions, which included no contact with minors, including M.K. Having reviewed the appellate record as summarized below, we conclude appellant’s remarks do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.
PROCEDURAL AND FACTUAL HISTORY
In March 2006, when M.K. was two years old, his younger sister C. drowned in the family bathtub. M.K. was apparently in the tub with his sister at the time. Police concluded C.’s death was the accidental result of appellant and the mother’s negligence. Respondent Fresno County Department of Children and Family Services (department) thereafter detained M.K. and initiated the underlying dependency proceedings. Meanwhile, appellant was incarcerated on a parole hold for using methamphetamine and for his role in C.’s death.
Pending a jurisdictional hearing, appellant requested visits with M.K. The child’s mother objected to visits with appellant in jail, on the theory it would cause M.K. further trauma. The court ordered the department not to discontinue visitation unless visitation caused M.K. distress or trauma and to obtain his therapist’s recommendation as to visitation.
In a May 2006 letter, M.K.’s therapist explained that children, such as M.K., who have experienced trauma, demonstrate out-of-control, fearful, disruptive or excessively aggressive behavior because they lack the cognitive and language skills to reflect upon their circumstances and verbally express their feelings. The concern with M.K. visiting appellant was M.K.’s inability to understand why appellant had to remain behind glass and physically separated from him. In addition, M.K. would experience separation with appellant after visitation as a significant loss rather than a temporary “good-bye.” This combined with the unfamiliar jail setting and the loud noises could cause more distress to an already traumatized M.K., who, according to his mother and maternal grandmother/relative caregiver, was exhibiting increased aggression and disruptive behavior.
Appellant continued to pursue the visitation issue with the trial court during the jurisdictional hearing. The judge encouraged the department to seek clarification from the therapist, whether her opinion was specific as to M.K. This led to a second letter from the therapist who wrote that her opinion was: “directed toward M[.K.] based on what is known about children in general” and based on the trauma M.K. experienced as well as the relatives’ reports of his aggressive and disruptive behavior. She further stated, “My perspective in writing the letter was whether or not I thought visits to [appellant] in jail would add to M[.K.]’s already disrupted state” and concluded “visiting [appellant] in jail seems likely to do just that.”
Thereafter, on May 8, 2006, the court exercised its dependency jurisdiction over M.K. under section 300, subdivisions (b) (failure to protect) and (f) (causing another child’s death through abuse or negligence). In particular as to appellant, the court found he exposed M.K. to ongoing domestic violence, continued to abuse controlled substances while caring for his children, and left the children unsupervised in the bathtub for several minutes, resulting in C.’s drowning. The court also concluded that visitation would exacerbate M.K.’s trauma. Consequently, the court found visitation would be detrimental to M.K. and ordered no visitation until the dispositional hearing.
Meanwhile, the department considered the appropriateness of offering reunification services to the parents. In appellant’s case, the department concluded his negligence warranted denial of services under section 361.5, subdivision (b)(4) and his incarceration warranted denial of services to him under section 361.5, subdivision (e)(1). The department reasoned that, given appellant’s projected release from custody in February 2008 and the lack of services available at the prison where he would be incarcerated, he would not be able to successfully complete services within the six months allowed by law for children under the age of three when detained. (§ 361.5, subd. (a)(2).) The department also considered M.K.’s bond with appellant and concluded it was not significant because appellant had been incarcerated for half of M.K.’s life.
After a contested dispositional hearing in July 2006 at which appellant testified services would be in M.K.’s best interests, the court followed the department’s recommendation and denied appellant services. It also continued its previous order denying appellant visitation with M.K.
Appellant challenged, by way of appeal, the court’s jurisdictional finding that his negligence caused C.’s death, as well as the dispositional orders denying him reunification services and visitation. We affirmed both the finding and those orders. (In re M[.]K. (Mar. 29, 2007, F050999) [nonpub. opn.].)
At approximately the same time, appellant was released from custody and sought visits with M.K. However, the conditions of his parole included that he have no contact with minors. In the meantime, despite approximately 12 months of reunification services for the mother, she had made little progress. This led the court to terminate reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for M.K. Although appellant submitted a notice of intent to file a writ petition challenging the court’s decision, he did not file any such petition. This court in turn dismissed the writ proceedings. (Donald K. v. Superior Court, (F053179) dismissed Aug. 9, 2007.)
In advance of the section 366.26 hearing, the department prepared a report assessing four-year-old M.K. as adoptable and recommending the court terminate parental rights. M.K.’s maternal grandparents who had been his caregivers since the previous year were committed to adopting him.
The department also reported appellant had signed the conditions of his parole around the time of his release in March 2007. When he nevertheless contacted first the grandmother and then the department about visits, the department referred appellant to his parole officer about his conditions of parole. The department called the parole officer as well to clarify whether the “no contact with minors” condition pertained to appellant’s own child. The officer explained the condition even prohibited supervised visits with appellant’s own child. According to the officer, appellant had not “shown participation” to warrant changing the “no contact with minors” order.
The court conducted the section 366.26 hearing in December 2007. At the hearing, appellant testified in support of his claim that termination would be detrimental to M.K. based on their parent/child relationship. Appellant described his relationship with his son before his detention in March 2006. Appellant also admitted he had no in-person visits with M.K. since his detention. Once when he was out of custody, he did speak with M.K. over the telephone.
Following closing arguments, the court found M.K. adoptable and terminated parental rights. Although the court had no doubt that appellant loved M.K., it could not find termination would be detrimental to M.K. The court noted appellant could not show regular visitation and contact with M.K., though it was not the result of any lack of desire or concern on appellant’s part. Even if the court were to find regular visitation and contact, it was not sufficiently established that there was such a substantial and positive emotional attachment so as to outweigh the benefit of adoption.
DISCUSSION
As mentioned earlier, appellant challenges the facts underlying the court’s 2006 exercise of jurisdiction over M.K. This court has previously reviewed the jurisdictional findings and upheld them. This appeal does not present a second-bite-at-the-apple opportunity to challenge once again prior findings and orders of the trial court. (Davies v. Krasna (1975) 14 Cal.3d 502, 507; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) He also argues he was never given a chance to maintain a relationship with his son and blames this on his incarceration, the court’s 2006 finding that visits would be detrimental to M.K., and later still his parole conditions. Once again, this court previously reviewed appellant’s challenge to the trial court’s order prohibiting visitation while he was incarcerated and upheld that decision as well.
Appellant must acknowledge his own responsibility for his incarceration and his special parole condition. According to the record, it was appellant’s lack of participation in parole-prescribed programs that kept the no-contact condition in place. In any event, we note none of this was a problem of the trial court’s making.
Once reunification efforts cease, the court shifts its focus to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, 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 the specified 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.)
Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
“[T]he 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 parent's rights are not terminated.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, there was no such evidence the parent/child relationship would promote M.K.’s well-being to such a degree that it outweighed the well-being M.K. would gain through adoption.
Indeed, the trial court offered that even if it could find appellant maintained a relationship with his son given the strength of his commitment and love, there remained no evidence that his relationship outweighed the benefit of adoption. In this respect, we remind appellant it was he who had the heavy burden of proof to prove detriment. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
“An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ....) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and ... ‘present argument and authority on each point made’ (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 ...; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 ...). If he does not, he may, in the court’s discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised ‘points’—and, a fortiori, no reason to reverse or even modify the orders in question. (See People v. Brigham (1979) 25 Cal.3d 283, 289 ....)” (In re Sade C., supra, 13 Cal.4th at p. 994.)
We conclude appellant raises no arguable issue regarding the court’s decision.
DISPOSITION
The order terminating parental rights is affirmed.