Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWJ003446, Michael J. Rushton, Temporary Judge.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Linda Rehm, under appointment by the Court of Appeal, for Minor.
McKinster, J.
S.S. (hereafter father) appeals an order terminating his parental rights to his daughter S.S. We affirm the order.
FACTUAL AND PROCEDURAL HISTORY
S. was detained as a newborn and placed in foster care with her now prospective adoptive parents. A petition pursuant to Welfare and Institutions Code section 300 alleged that both parents abused controlled substances, thereby limiting their ability to provide S. with adequate care, endangering her safety and well being, and creating a detrimental home environment. It also alleged that the parents had neglected the child’s health and safety because the home contained drug paraphernalia. It alleged that the mother had unresolved mental health issues and was noncompliant with her prescribed medication, and that she had failed to benefit from reunification services provided to her with respect to three older children, due to substantiated allegations of general neglect as to all three of the older children and emotional abuse as to two of her older children. It alleged that substantiated allegations of abuse or neglect of S.’s siblings placed her at risk of similar harm. The allegations of abuse and neglect pertained to the mother only. She is not a party to this appeal.
All statutory citations refer to the Welfare and Institutions Code.
This included what appeared to be a “torch” used for smoking methamphetamine.
At the jurisdiction and disposition hearing, father did not contest the allegations of the petition and the court found the allegations true. The court removed S. from her parents’ care and ordered reunification services for father only. Services had been terminated for S.’s mother, with respect to her three older children, on that same date, and the court denied her request for services with respect to S., pursuant to section 361.5, subdivision (b)(10).
Father was found to be S.’s presumed father. He has a history of marijuana and methamphetamine abuse. In the report prepared in September 2007 for the six-month review hearing, DPSS reported that father was participating in a substance abuse program and parenting classes and attending two-hour weekly visits. He had been drug testing and had four clean tests, no dirty tests and no “no-shows.” S. appeared to enjoy the visits and father’s behavior was appropriate. However, the social worker did not believe that father had any insight into how he could benefit from services to reunify with S. Nor did he appear to have progressed; despite his earnest efforts, he appeared to be “moving through life from crisis to crisis.” He was also residing with S.’s mother, who had been denied services. Finally, he had a felony case pending, involving theft of a golf cart. Nevertheless, at the six-month review hearing in October 2007, the court found that there was a substantial probability that S. could be returned to father’s care within six months and continued his services. The court also found that the Indian Child Welfare Act does not apply.
As far as we are aware, the record does not disclose how the criminal case was resolved.
In the report prepared in March 2008 for the 12-month review hearing, DPSS again reported that father did not appear to be benefitting from services. He had completed his substance abuse program, but had failed to appear for eight random drug tests and had tested positive for marijuana on two other occasions. He had also not followed through with recommended support meetings. The social worker believed that circumstances indicated that father was engaged in “active substance use.” At weekly visits with S., father demonstrated little parenting ability and tended to lose interest in interacting with S., who was then one year old, and would instead play with his cell phone. He had completed his parenting program, but had missed four out of 12 sessions.
However, after that report was filed, DPSS reassessed father’s progress and recommended extending services for an additional six months. The addendum report stated that he appeared committed to reunification, was “increasingly consistent” in visiting with S., and was making an effort to apply his parenting skills during visits with S. He was participating in a substance abuse aftercare program. His substance abuse counselor reported that he was making progress and had good attendance. He had separated from S.’s mother, had maintained a stable residence and was working full time for an appliance company. However, he still had several no-shows for drug testing.
At the 12-month review hearing, the court extended father’s reunification services for an additional six months, finding a substantial probability that S. could be returned to his care within six months. The court advised him that if S. was not returned to him at the 18-month review hearing, however, the court would be forced to terminate services and “look at potential adoption.”
By the time of the 18-month review, DPSS recommended terminating father’s services and selecting adoption as S.’s permanent plan. Although father had completed his plan requirements and was continuing to attend 12-step meetings, the social worker concluded that he had failed to benefit from the extensive services he had received. He had had three clean random drug tests and one no-show, one positive test for marijuana, and one positive test for alcohol. He had no concrete plans for caring for S. if she were returned to his care and had not made the lifestyle changes necessary to provide her with security and stability. He was sharing a two-bedroom trailer with his mother and her boyfriend, both of whom had criminal backgrounds. He was considering moving in with his girlfriend of five months. He said his girlfriend might quit work to care for S. The social worker considered such “ambivalent” plans lacking in “structure, long-term planning [and] stability.” Further, his relationship with S.’s mother was volatile. They had gotten into a heated argument during a recent visit, and there had been a recent incident in which the mother had punched him in the face and knocked out one of his teeth. S.’s mother was pregnant, and father was the alleged father of that child. Moreover, father still failed to demonstrate adequate parenting abilities and showed poor judgment, immaturity, lack of long-range planning skills and lack of the “basic common sense necessary for supporting a family.” The social worker reported that he interacted with S. “more like a child than like a parent.” Finally, he showed no insight into the fact that his continued substance abuse impaired his ability to care for S., and his continued drug use compromised his attentiveness, judgment and ability to parent.
At the 18-month review hearing, the court found that returning S. to father’s care would create a substantial risk of detriment to S.’s “safety, protection, physical or emotional well being,” and that continued placement out of the home was necessary and appropriate. The court found that DPSS had provided reasonable services designed to assist father in overcoming the problems which led to the dependency and to make it possible for S. to return home, but that father had failed to make substantial progress toward alleviating or mitigating the causes necessitating placement. The court terminated services and found that the permanent plan of adoption was appropriate. The court set a selection and implementation hearing pursuant to section 366.26.
At the contested section 366.26 hearing, the court found that a sufficient basis for termination of father’s parental rights existed based on the termination of services at the 18-month review hearing and the court’s findings in support of that decision, and that a sufficient basis for termination of the mother’s parental rights existed based on findings made at the jurisdictional hearing, i.e., the decision not to offer her reunification services. The court found that termination of parental rights would not be detrimental to S. under any of the statutory exceptions to the adoption preference contained in section 366.26, former subdivision (c)(1)(A) through (E) (now § 366.26, subd. (c)(1)(A) & (B)), that adoption was in S.’s best interests and that it is likely S. will be adopted. It terminated parental rights of both parents and ordered DPSS to refer S. for adoptive placement.
Father filed a timely notice of appeal.
LEGAL ANALYSIS
FATHER’S DUE PROCESS RIGHTS WERE NOT VIOLATED
Father contends that his due process right to the care, companionship and custody of his child was violated by DPSS’s failure to demonstrate sufficient detriment or unfitness at the section 366.26 hearing. He relies on the recent case of In re P.C. (2008) 165 Cal.App.4th 98. In that case, the court held that parental rights may not be terminated “when the only current detriment to returning the child[] to [the parent’s] care and custody is [the parent’s] inability to obtain housing acceptable to [the social services agency].” (Id. at pp. 103-107.) Father contends that his case is analogous to In re P.C. because the “social worker’s concerns about father’s parenting abilities stemmed not from his previous methamphetamine addiction [which was the original cause of S.’s detention], but from his inability to secure stable housing, manage his money and have long term, reliable employment.” Thus, he concludes that poverty was the sole reason for termination of his parental rights.
We disagree. There was no evidence that father’s failure to obtain suitable housing was the result of poverty or the inability to find affordable housing. Rather, the court at the 18-month review hearing found that father was continuing to use controlled substances. It implicitly adopted the social worker’s reports submitted for the hearing, which support the conclusion that father’s continued drug use caused him to be unable to focus on providing suitable living arrangements for S. and unable to provide adequate parental care for her. The findings at the 18-month review hearing were adopted by the court at the section 366.26 hearing.
In any event, the court is not required to make a finding of current detriment to the child at the section 366.26 hearing. Findings of parental unfitness and resulting detriment to the child if he or she were returned to the parent’s care and custody have already been made, usually at multiple hearings, by the time the case reaches the section 366.26 hearing. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) An order at a 6-, 12- or 18-month review hearing pursuant to section 366.21 or 366.22, continuing the removal of the child from the custody of a parent and terminating reunification services, provides a sufficient basis for termination of parental rights; no further showing of detriment to the child need be made at the section 366.26 hearing. (§ 366.26, subd. (c)(1).)
Moreover, because the finding father seeks to challenge in this appeal—that there is a substantial risk of detriment to S. if she were returned to his custody—was made at the 18-month review hearing, father cannot challenge that finding on appeal from the order terminating his parental rights without having complied with section 366.26, subdivision (l). Section 366.26, subdivision (l) provides, first, that an order setting a hearing on termination of parental rights is not appealable unless the parent files a petition for extraordinary writ review and other conditions are met. It then provides that “Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.” (§ 366.26, subd. (l)(2).) Any issue which might otherwise be raised on appeal from an order terminating parental rights must be addressed by writ petition if it is “designed to overturn or [is] subsumed in” the order setting the section 366.26 hearing. (In re Rashad B. (1999) 76 Cal.App.4th 442, 447-448.) Because the order terminating father’s reunification services formed the basis for the subsequent order terminating his parental rights, he was required to challenge the finding of substantial risk of detriment to S. in a timely petition for writ review filed after the 18-month review hearing. Because he did not do so, the legal sufficiency of the finding or of the evidence underlying it is not cognizable in this appeal.
Section 366.26, subdivision (l)(1) provides that an order setting a hearing on termination of parental rights is “not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.”
The opinion in In re P.C., supra, 165 Cal.App.4th 98, does not make clear the basis of the court’s authority to reverse the order terminating parental rights, when the basis for that order was the juvenile court’s finding of risk of detriment made at the 18-month review hearing. If a petition for extraordinary writ relief was filed in that case, the opinion does not mention it.
THE COURT CORRECTLY FOUND THAT FATHER FAILED TO PROVE THAT S. WOULD BENEFIT FROM A CONTINUED RELATIONSHIP WITH HIM
After termination of reunification services, the focus of juvenile dependency proceedings is on the child’s needs, including his or her need for a stable, permanent home. Consequently, the statutory preference for a permanent plan for a dependent child is adoption, and the court must terminate parental rights and refer the child for adoption unless one of the exceptions provided for in section 366.26, subdivision (c) applies. (§ 366.26, subd. (c); In re Celine R. (2003) 31 Cal.4th 45, 53.)
Section 366.26, subdivision (c)(1)(B)(i) provides that even if the court finds that the child is adoptable and that there is a reasonable likelihood that the child will be adopted, the court may nevertheless decline to terminate parental rights if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” At the termination hearing, father argued that this exception applied.
In order to prevail in asserting the exception, the parent must demonstrate both that he or she has maintained regular visitation and contact with the child and that a continued parent-child relationship would “promote[] 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.... 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re S.B. (2008) 164 Cal.App.4th 289, 297.) On appeal, we review the court’s finding that the exception does not apply under a deferential standard which has been articulated as a substantial evidence/abuse of discretion standard: “Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘“if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
In this case, the juvenile court found that father did not meet his burden of proving that he and S. shared such a significant bond that it would be in S.’s best interest not to proceed with the adoption. Based on father’s testimony at the hearing, the court found “no reason to believe that the father has established any greater role” in S.’s life “than would a sibling or a family friend who visits on a regular basis.” The court held that whatever bond resulted from father’s weekly one- or two-hour visits did not outweigh the benefits S. would derive from adoption by her long-time foster parents.
Substantial evidence supports this finding. Factors which are to be considered include the age of the child and the portion of the child’s life spent in the parent’s custody. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) S. was two years old at the time of the hearing. She was removed from her parents’ care within days of her birth, and she had lived virtually her entire life in the home of her prospective adoptive parents. Although she enjoyed her visits with father and called him “Dad,” there was no evidence that she was unhappy when the visits ended or that she would suffer in any respect if those visits were to end. Moreover, to support the exception, the bond must be in the nature of a parent-child bond; it is not sufficient that the child views the parent as a pleasant visitor or a family friend. (Id. at p. 468; In re Helen W. (2007) 150 Cal.App.4th 71, 81.) Here, there was no evidence that father and S. shared a parent-child bond. On the contrary, the social worker who observed recent visits reported that father interacted with S. more like a playmate than a parent. Father’s description of his interaction with S. was similar. This is sufficient to support the court’s finding and its exercise of its discretion. (See In re Angel B., supra, at pp. 467-468; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Father’s reliance on In re S.B., supra, 164 Cal.App.4th 289, is misplaced. In that case, the father had been the child’s primary caregiver for the child’s entire life when she was removed from parental custody at the age of three. She displayed a strong attachment to her father, was unhappy when visits ended and tried to leave with him at the conclusion of visits. (Id. at pp. 293, 298.) In contrast, S. enjoyed father’s visits, but they never had a true parent-child relationship, and there is no evidence that S. displayed any distress when visits ended.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.