Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ003915. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
J.S. (Father) appeals the termination of his parental rights to his daughter, S.S., after a Welfare and Institutions Code section 366.26 hearing.
The child’s mother does not appeal the termination of her parental rights.
S.S.’s counsel agrees with the juvenile court’s finding terminating parental rights and freeing her for adoption.
Father raises one issue on appeal: The juvenile court erred by refusing to find that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied and should not have terminated his parental rights.
We find no error. Hence, we will affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
The facts are taken from our unpublished opinion in case No. E047032 unless otherwise indicated.
On August 25, 2006, the Riverside County Department of Public Social Services (the Department) filed a petition on behalf of S.S., who was two months old at the time. The petition alleged S.S. came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition included the following allegations: Mother had been diagnosed with borderline intellectual functioning and depression and had a history of mental health hospitalizations; she displayed a limited ability to care for herself and limited problem-solving skills; Father had been diagnosed with borderline intellectual functioning and serious impairment in parental and social functioning; the parents had displayed “inappropriate and destructive parenting” by not meeting S.S.’s basic needs; their home was cluttered and infested with fleas; they were unable to provide a safe and stable living environment in that they had a history of being transient and were recently evicted from their home; S.S’s half sibling, J.S., had been removed from their care as a result of general neglect, they had failed to reunify with him, and their parental rights to him had been terminated; the parents were currently on probation for child endangerment/abuse (Pen. Code, § 273a); and they displayed a lack of insight and poor judgment in that S.S. was conceived as a result of their incestuous relationship.
Both parents denied they were siblings, even though it had been previously alleged in other child protective proceedings that they were.
The detention hearing was held on September 13, 2006. The court made a prima facie finding that S.S. was a person described by section 300, subdivisions (b) and (j), removed her from the parents’ custody, and placed her in a foster home.
In the jurisdiction/disposition report filed September 25, 2006, the Department reported that the parents were previously found guilty of child abuse/endangering a child (Pen. Code, § 273a, subd. (b)) with regard to their other child, J.S. The parents failed to reunify with him after one year of services, and their parental rights were terminated on March 26, 2006. The social worker in the current case spoke with the social worker in J.S.’s case, and the latter stated the parents were brother and sister, were developmentally delayed, and were transient most of the time. The Department recommended that the trial court deny Mother and Father reunification services with S.S. based on their failure to reunify with J.S.
On November 7, 2006, the jurisdiction hearing was held on the amended petition. The court found that S.S. came within section 300 and adjudged her a dependent of the court. The court placed S.S. in a foster home, ordered reunification services for both parents, and ordered psychological evaluations for both parents. The parents’ case plans included the requirements that they participate in individual counseling, complete a parenting education program, and comply with substance abuse testing.
The Department amended the petition to strike the allegations regarding the parents’ home being cluttered and infested with fleas, the parents being on probation, and the parents’ incestuous relationship.
The Department filed a six-month review report recommending that the court terminate services and set a section 366.26 hearing. The Department reported that the parents resided in a one-bedroom apartment they shared with two other people. The condition of the apartment was “deplorable.” Mother was unemployed and had never worked in her life. She was on medication for depression, and she was pregnant again. Father was employed as a stock clerk at a bookstore.
The Department acknowledged that appropriate services had been provided over the previous six months and that the parents had been actively involved in their case plans. However, it was concerned about the parents’ abilities to understand and process the information presented to them. For example, instead of calling the drug-testing center as instructed, they went to the test site every day to see if they needed to test. The parents missed a few test days due to their confusion. The instructor for their parenting education class questioned their understanding of the class.
The Department further reported that conclusions of a recent psychological evaluation of both parents recommended that S.S. remain a ward of the court and that further services to the parents were “unlikely to bring a better result than ha[d] been achieved to date.” The evaluator opined it was unlikely that Father had made any real progress in correcting the problems that led to removal of both of his children (J.S. and S.S.) due to his defensiveness and unwillingness to acknowledge his own failings. Father’s life was riddled with instability and poor decision making. Given S.S.’s special needs (set forth in more detail, post), it was unlikely Father would be able to provide the necessary guidance and support she needed.
Mother was found to have a mood disorder and limited cognitive ability. She was not capable of meeting her own needs or benefitting from services and would never be capable of parenting a child. The Department also noted that the parents appeared delusional about the return of J.S. to their care.
As to S.S., she was “having significant developmental delay as evident by her slow growth development, body tone and limited response to certain stimuli.” Placing S.S. back with the parents would put her at high risk because they “do not have a consistent ability to abstractly reason or use logic, which is necessary to provide for the needs of this child.” S.S was residing in a foster home with J.S., and J.S. was in a plan of adoption.
At the six-month review hearing on June 6, 2007, the court continued the out-of-home placement and visitation. The court found that the parents’ progress in alleviating the causes necessitating placement of S.S. had been adequate but incomplete, and it ordered reunification services to be continued, along with ordering several other classes.
The Department filed a 12-month status review report on October 29, 2007, and recommended that reunification services be terminated and a section 366.26 hearing be set. The Department reported that the parents had moved into another apartment that was much better than where they had been living. However, they were both unemployed. Mother had been prescribed psychotropic medication for depression that she self-reported was getting worse as she got older. Mother had given birth to another baby in July 2007, but the baby had died due to medical complications.
Mother and Father had actively participated in their respective case plan services, yet they did not understand all the information they were being given. Father refused services at the Inland Regional Center because he believed he did not need them. Both Mother and Father had completed a parenting education class. However, after the class sessions they would ask questions that showed they did not really understand the topics presented. The parents had attended counseling but had not completed all of their sessions and were terminated for nonattendance. The parents had missed a few drug tests due to confusion.
The Department recommended terminating services and advised against returning S.S. to the parents as it would be detrimental to her because she had numerous medical needs that required specialized care and attention. Mother and Father could not adequately care for S.S. as they had developmental delays, a history of transiency, were still on probation for child endangerment, and Mother had a mental health history.
At the 12-month hearing on February 28, 2008, the court opined that return of S.S. to the parents’ custody would create a substantial risk of detriment to her safety, protection, or well-being and thus continued her placement in her foster home. The court found that the extent of progress made by the parents toward alleviating the causes necessitating placement was incomplete. However, the court found exceptional circumstances existed to extend services to the parents to an 18-month hearing. The court approved a case plan, which included the requirement that the parents complete an in-home parenting education class.
In a report filed on May 28, 2008, the Department again recommended that services be terminated and a section 366.26 hearing be set. Mother was five months pregnant and acknowledged she was told by her doctor that this pregnancy was going to be high risk. The parents recently had been evicted from their apartment and needed a place to live. Mother and Father completed in-home parenting education classes on May 13, 2008. While they showed improvement in assessing and responding to S.S.’s needs (determining whether she was hungry or thirsty or needed a diaper change), the instructor was unsure if they would continue these tasks without supervision or prompting.
S.S. still resided in the same foster home where her brother, J.S., lived. The foster parents had adopted J.S. and were interested in adopting S.S. S.S. was 20 months old and was assessed to be mentally retarded. She was six to 10 months behind developmentally. She needed constant supervision to meet her basic needs and to keep her safe. S.S. also had physical handicaps that could require leg braces and surgery, and there were concerns that she could be deaf in one ear. S.S. would need lifelong special care. Mother and Father had limited intellectual functioning and were thus unable to comprehend the medical necessities S.S. required.
An 18-month review hearing was held on July 23, 2008. Mother testified that she and father were married in 2004. She also said she did not know the identity of her biological father. The court continued the hearing and ordered the parents to undergo DNA testing to determine the exact nature of their relationship. The DNA testing was considered inconclusive.
The Department’s addendum report dated October 27, 2008, reported S.S.’s mobility was improving. However, she was diagnosed with failure to thrive, was treated for mild anemia, and was being evaluated for a speech delay. She was also being evaluated for a probable leg-length discrepancy. The parents continued to lack permanent housing.
The continued 18-month review hearing was held on October 30, 2008. Mother had recently given birth to a baby girl who also had medical problems, including a heart murmur and undeveloped lungs.
The Department has asked that we take judicial notice of the appeal pending in regard to this other child. As we find it not relevant to resolve the issues in the instant case, we deny the request for judicial notice.
After considering the evidence, the juvenile court noted that all of the parents’ children had some kind of physiological defect, which heightened the suspicion that Mother and Father were siblings, although there was no conclusive evidence of that. The court believed the parents’ decision to continue bringing children into the world showed a character flaw. It considered the multiple psychological evaluations, which concluded that the parents had limitations in their parenting abilities. The court particularly noted that the recent psychological evaluations concluded there was no change from the previous ones. The court found that the return of S.S. to the custody of the parents would create a substantial risk of detriment to S.S.’s safety and well-being. It further found that reasonable services had been provided and noted that, while the parents had done most of the things their plan asked them to do, they had not benefitted sufficiently to provide the care S.S. needed. The court terminated services, changed the permanent plan to adoption, and set a section 366.26 hearing for February 26, 2009.
Both Mother and Father filed petitions for extraordinary writs pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order terminating reunification services as to S.S. and the setting of the section 366.26 hearing. The petitions raised issues that the parents were not provided adequate reunification services and the trial court erred in finding it detrimental to return S.S. to their care. We denied the writ petitions, which will be discussed further, post.
A section 366.26 report was filed on January 26, 2009. The Department recommended that the parental rights of Mother and Father be terminated and that S.S. be freed for adoption.
S.S. had been recently medically evaluated and found to have severe hearing impairment. She still suffered from physical and mental developmental delays. She had a strong bond with the adoptive parents and with J.S. There was some indication that the same adoptive parents would take Mother’s and Father’s third child.
Between August 2008 and January 2009, Mother and Father had missed some visitation with S.S. They had also left early from or been late to some visits. Parents continued to act appropriate at the visits they attended. The adoptive parents were willing to continue visits after the adoption.
The contested section 366.26 hearing was conducted on February 26, 2009, as will be discussed in more detail, post. Mother and Father submitted on the evidence presented by the Department and Father argued that the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i) should apply. The trial court terminated Mother’s and Father’s parental rights, freeing S.S. for adoption.
Father filed a timely notice of appeal.
II
BENEFICIAL RELATIONSHIP EXCEPTION OF SECTION 366.26, SUBDIVISION (c)(1)(B)(i)
Father contends that the trial court erred by finding the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i) did not apply and in terminating his parental rights.
Although the Department addresses whether there was substantial evidence that S.S. was adoptable, we interpret Father’s opening brief to be raising only the issue of whether the juvenile court erred by rejecting the beneficial relationship exception.
“[B]y the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) At the section 366.26 hearing, the sole issue “‘is whether there is clear and convincing evidence that the child is adoptable.’ [Citations.]” (In re Josue G. (2003) 106 Cal.App.4th 725, 733; see § 366.26, subd. (c).)
As our state Supreme Court has explained, “[i]t is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are ‘at fault.’” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) “By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness....” (Id. at p. 256.) Nor does the failure to require such a finding at the section 366.26 hearing violate a parent’s right to due process. (In re Amanda D. (1997) 55 Cal.App.4th 813, 819; In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403.)
Here, in denying Father’s writ petition filed pursuant to California Rules of Court, rule 8.452, we found that the trial court’s determination of unfitness was proper. We have already upheld the denial of reunification services. We held, “Here, the court properly considered the social worker’s recommendations and concluded that, although the parents had completed most of their case plans, they did not benefit sufficiently from the services to be able to care for the child’s needs. Throughout the dependency, the parents had difficulty understanding and processing the information presented to them, due to their developmental delays. Even during the in-home parenting class, which occurred late in the reunification process after the parents had already taken a previous parenting education class, the parents still had to be prompted to meet the child’s basic needs. The instructors from both parenting classes stated their concerns about the parents’ ability to care for the child. [¶] Furthermore, the court properly considered the psychological evaluations, which concluded there were limitations that interfered with the parents’ ability to take care of themselves and the child. The court noted that the recent psychological evaluation concluded there had been no change since the previous evaluations. [¶] Given the child’s special needs, as well as the parents’ own developmental delays and inability to meet even the child’s basic needs, despite participating in a variety of services, we conclude the court properly found that return of the child to the parents would create a substantial risk of detriment.” (J.S. et al. v. Superior Court (Jan. 28, 2009, E047032) [nonpub. opn.], p. 16.)
Hence, we have already concluded that Father is unable to care for S.S. and that the trial court properly terminated reunification services. It is well settled that when reunification efforts have failed, adoption is the Legislature’s first choice because it gives the child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).)
This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi)), including the beneficial parental relationship exception, which applies when “termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) There must be a “‘compelling reason’” to apply the beneficial parental relationship exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)
“The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) “We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) “We... review[] the evidence most favorably to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) Because Father had the burden of proof, we must affirm unless there was “indisputable evidence [in his favor] evidence no reasonable trier of fact could have rejected....” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
At the section 366.26 hearing, neither Mother nor Father offered any evidence, and both submitted on the Department’s reports. Father argued that the trial court should apply the exception and not terminate his parental rights. He argued, “The parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. [¶] This report as well as others have been very consistent that my client has been visiting regularly, and the visits, in fact, have been appropriate. Particularly, this report indicates the visits have been appropriate. [¶] My client does feel that he has maintained contact with his child. He has been involved with his child. This child is a special-needs child. He is asking... that the parental rights not be terminated; that we go to a lesser plan such as legal guardianship.” The trial court denied the request, finding, “At this time, in evaluating whether the exception of the parents’ visitation the parents have visited the child. However, in weighing the benefits to the child of continued visitations with the parents versus the benefits of adoption, the Court does not find that they outweigh the benefit to [S.S.] being adopted.”
Initially, we disagree that the record supports Father was regularly visiting S.S. According to the section 366.26 report, Father had missed several visits, and he and Mother had arrived late and left early on several occasions. In his reply brief, Father maintains that he participated in visitation. However, a close review of the record shows that he in fact was absent for visitation and left early on many occasions in the time leading up to the section 366.26 hearing. Father has failed to meet his burden of establishing that he had maintained regular visitation and contact prior to the section 366.26 hearing.
Regarding the second prong, i.e. whether S.S. would benefit from continuing the relationship with her Father, the record shows that severing the parental bond between Father and S.S. would not be detrimental to S.S. “[C]ourt[s] ha[ve] interpreted the phrase ‘benefit from continuing the relationship’ to refer to a ‘parent-child’ relationship that ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances 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.’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 207.)
The reports indicated that Father, during visitation, acted appropriately and was attentive to S.S., but there was no real evidence of a bond between the two. S.S. had spent very little time Father, and he was not capable of taking care of her special needs. However, S.S. was bonded to her adoptive parents and would be placed with her sibling, J.S., with whom she had established a significant bond.
For the above reasons, we conclude the juvenile court reasonably found there was insufficient evidence S.S. would benefit more from continuing her relationship with Father than from adoption. S.S. was doing well in her adoptive parents’ home, and they were well equipped to handle the care required due to her developmental delays. There is no evidence that she would be “greatly harmed” by severing her relationship with Father. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.) The juvenile court properly found that the beneficial parental relationship exception to terminating parental rights did not apply.
III
DISPOSITION
The order appealed from is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.