Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. JV39997, Ginger E. Garrett, Judge.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Father, R.J., Sr.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Mother, B.R.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel for Plaintiff and Respondent.
COFFEE, J.
R.J., Sr. (father) and B.R. (mother) appeal the order of the juvenile court denying a modification petition and terminating parental rights to their son, R.J. (Welf. & Inst. Code, §§ 388, 366.26, subd. (c)(1).) Father claims that the court erred in denying him visitation and prevented him from establishing the parental benefit exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Mother filed an opening brief, joining in father's arguments, but raising no additional issues. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS
R.J., born in March 2009, was detained at birth when he and mother tested positive for amphetamine. Mother also tested positive for marijuana. She was arrested the following day and taken into custody for violating her parole. Father was present at the birth, and admitted to hospital staff that he was under the influence of drugs. The juvenile court ordered R.J. detained due to the parents' failure to protect and lack of provision for support. (§ 300, subds. (b) & (g).)
Mother was subsequently denied reunification services because she had failed to reunify with another child and was incarcerated. (§§ 361.5, subds. (b)(10), (11) & (e)(1).) During a previous pregnancy, mother injected heroin the day before her delivery. She entered a treatment program and abandoned her baby at the facility. Her parental rights were terminated as to that child, who has since been adopted.
Shortly thereafter, father was incarcerated. There is no indication why he was taken into custody, but the record reflects that he was on parole. In July 2009, the juvenile court granted reunification services to father, and directed the Department of Social Services (Department) to schedule a contact visit at the county jail. It set a three-month review hearing for October 2009 and a section 366.21 six-month permanency planning hearing for January 2010. Father was granted supervised visitation once every three months while incarcerated.
For his first three months of life, R.J. was placed with his maternal grandmother. The social worker reported that the grandmother provided excellent care, but decided it would be best for him to be placed in a foster home with a family that wanted to adopt. R.J. was placed with the foster parents in May, where he has remained. They have been granted de facto parent status and wish to adopt him.
In an interim review report, prepared for the October 2009 hearing, R.J. was described as a "sweet baby with a darling temperament, " who was being evaluated for developmental delays due to mother's prenatal amphetamine use. The Department reported that father visited monthly with his son while in county jail, and attended Narcotics Anonymous meetings. He was transferred to Wasco in September 2009. In its November 2009 addendum report, the Department recommended that father's reunification services continue. In January 2010, the Department recommended that father receive six more months of services.
Father had been released from jail in November 2009. He maintained regular weekly visitation until February 2010. At that time, he stopped taking Ativan and Paxil and ceased attending his program at Drug and Alcohol Services. He discontinued seeing his son in the Drug and Alcohol Services parenting classes. Father was subsequently diagnosed with Bipolar Disorder and prescribed Depakote, Celexa and Clonopin. These medications did not help with his depression and anxiety, so he stopped taking them and relapsed to methamphetamine use.
Father's visitation was through the parenting class, and was not regular visitation.
In March 2010, father was returned to prison. He stayed in the county jail for 60 days and was transferred to Wasco for 30 days. While in jail, father told social worker Gail Gordon that he had been arrested for petty theft, shoplifting and possession of drug paraphernalia. In May 2010, the juvenile court terminated father's reunification services due to his incarceration and untreated mental health and substance abuse issues. The court ordered weekly visits supervised by the Department at the county jail.
Father was released from custody in June 2010. He entered a sober living facility and was reportedly doing well. In September he filed a section 388 petition requesting the court to change its order terminating reunification services. Father alleged changed circumstances because he was no longer in custody, was in a sober living facility, attending a parenting class, and had continued visitation with his son. He requested that R.J. be placed with him in family maintenance or that reunification services be reinstated. The de facto parents and the Department filed opposition. The Department argued that father's several months in a sober living facility was insufficient to demonstrate that he could maintain stability long term, or stay sober outside the facility.
During three supervised visits, father told the supervising social worker that he could not take care of his son and was "in no position to have him right now." He acknowledged that R.J. was bonded to the foster parents and that they had cared for him for most of his life. Father explained that he had filed a section 388 petition and was contesting the 366.26 hearing because he wanted his son "'to know I did everything I could, '" and "'[i]f I didn't contest I would have never seen him again....'" Father wanted an opportunity to know R.J., and wished to see him twice a year. He hoped the foster parents would allow him to have contact, and thought that by contesting the hearing and filing a section 388 petition, he would have leverage to negotiate with them.
The Department issued a section 366.26 report for the September 8, 2010 hearing, recommending that parental rights be terminated for both mother and father. R.J. had special needs due to in-utero drug exposure and had been living with the foster parents for over a year.
The juvenile court held a combined section 388 and 366.26 hearing. It first heard testimony of father and the social worker, Stacy Willis. The court found there was no change in circumstances, such that it would be in R.J.'s best interest for father to receive additional services. It denied his section 388 petition and turned to the section 366.26 portion of the hearing.
The social worker testified that, after reunification services were terminated, father's visitation was reduced to once per month. This is customary when the juvenile court and Department are considering a permanent plan of adoption. The court indicated that both parents had been incarcerated for the majority of time that R.J. has been in out of home placement. It determined that neither parent had occupied a parental role, nor had there been regular visitation as anticipated by the exception. The court stated that it was not the actions of the Department that limited visitation between R.J. and his parents. Rather, visitation "has been limited by the circumstances that [the parents] have caused due to their substance abuse. They have put themselves in a position where they have not been able to have consistent contact with [R.J.]. Certainly not unsupervised contact." The juvenile court terminated the parents' parental rights.
DISCUSSION
The crux of father's appeal is that the Department did not arrange visitation to the extent ordered by the court. He argues that this deprived him of his ability to comply with visitation. Father contends that, had the Department allowed him to have all visitation to which he was entitled, he could have asserted the parental benefit exception to adoption at the section 366.26 hearing. This exception requires a parent to establish that he had maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)
Father argues the Department failed to arrange visitation between father and R.J. for the first four months after R.J. was detained. It also failed to arrange all visits ordered by the court, both when father was in and out of custody. He asserts that the Department's failure to provide more frequent visitation was a violation of his statutory and substantive due process rights to parent his child.
The record reflects that father submitted on all orders regarding visitation from the inception of the case. Orders made in dependency proceedings are directly appealable. (§ 395; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Orders setting a section 366.26 hearing are reviewed by extraordinary writ, and must be filed in a timely manner after the court issues a final, appealable order. (§ 366.26, subd. (l)(1); In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667.) A parent dissatisfied with an agency's management of visitation must bring the matter to the court's attention. (See In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377.)
Father never challenged the proposed orders or sought unsupervised visitation. He was granted reunification in July 2009, while incarcerated. He was released in November. At that time, the Department reported that father was complying with his case plan and recommended that services continue. Father relapsed and resumed his drug use in February 2010, seven months after reunification services were originally granted. By March he was again incarcerated, and services were terminated in May.
Father has waived his right to challenge the court's orders concerning visitation because his arguments are untimely. He submitted to visitation at each stage of the proceedings. Reunification services were terminated, without father ever having challenged the visitation schedule, or alerting the juvenile court to any problems with visitation. Even were we to consider the matter on the merits, we would conclude that father rendered himself unavailable during reunification by resuming his substance abuse and becoming incarcerated. When the matter was referred for a section 366.26 hearing, the parents were advised of their rights to file a writ, but never did so. (§ 366.26, subd. (l)(1).)
Once reunification has been unsuccessful, the court's focus becomes the minor's placement and well-being. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Father submitted on the reasonable services finding throughout the dependency proceedings. At the section 366.26 hearing, he admitted that he did not fully participate in visitation due to his substance abuse and incarceration. He cannot now challenge the lack of visitation by arguing that it precluded him from developing a parent-child bond. Father's arguments do not raise a valid substantive due process claim. There was no violation of his due process right to a parental relationship with R.J..
The juvenile court made factual findings that father was incarcerated for the majority of R.J.'s life, and had not occupied a parental role. R.J. has resided continuously with the foster parents since May 2009, less than three months after his birth. He has never lived with father. The parental benefit exception requires that the parent make a showing that a parental relationship has evolved to such a degree that is beneficial to circumvent adoption and maintain contact. (§ 366.26, subd. (c)(1)(B)(i).) It is inapplicable here because father did not occupy a parental role in R.J.'s life. (See In re C.F. (2011) 193 Cal.App.4th 549.) His claim of prejudice fails because this exception to adoption was never available to him.
DISPOSITION
The judgment (order terminating parental rights) is affirmed.
We concur: GILBERT, P.J., YEGAN, J.