Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County, No. 09CEJ300167-1, Mary D. Dolas, Commissioner.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin B. Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
Nathan S. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his one-year-old daughter, T.S. (child). He contends the court should not have terminated his parental rights and instead found it would be detrimental to the child (§ 366.26, subd. (c)(1)(B)(i)). On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Father’s substance abuse and domestic violence led to the child’s detention and the underlying dependency proceedings when she was three months old. The juvenile court exercised its dependency jurisdiction over the child (§ 300, subd. (b)) and in January 2010 adjudged her a dependent child as well as removed her from parental custody. Although the court granted the mother reunification services, it denied services to father due to his previous loss of custody of two other children and his lack of a subsequent and reasonable effort to treat his underlying problems as well as his serious history of substance abuse (§ 361.5, subd. (b)(11) & (13)). This court upheld that decision in F059239, In re T.S.
The mother failed to participate regularly in court-ordered services and made no progress. Consequently in the summer of 2010, the juvenile court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for the child.
Respondent Fresno County Department of Social Services (department) later prepared a “366.26 WIC Report” in which it recommended that the court find the child adoptable and terminate parental rights. Because there is no dispute that the child is likely to be adopted, we do not summarize the evidence regarding the child’s adoptability here.
In this and in an addendum report, the department summarized father’s history of visits with the child. Before the court set the section 366.26 hearing, father consistently visited. He always brought “goodies” for her to consume. It was also reported that when the child saw father, she said “daddy” and reached for him. Father was very nurturing and loving towards his daughter. He appeared to be in tune with her needs and appropriately responded.
The court in January 2010 had ordered reasonable, supervised visitation between father and the child.
After the court set the section 366.26 hearing, father visited on a less consistent basis. He missed four visits without calling to cancel in the fall of 2010.
Tumani Heights, a social worker in the department’s assessment adoption unit, supervised three one-hour visits, which did occur. At each of these visits, father would eat during the visit and offer some of the food to the child. He also generally sat in a chair and allowed the child to roam freely around the visitation room and explore with different toys. Both parents also participated with the child in playing with toys in the visitation room. Father was attentive to and affectionate with the child. Although the reunification social worker had reported the child called father “daddy, ” Heights had not observed the child refer to either parent. The parents did refer to themselves as mom and dad when speaking and interacting with the child.
When visits ended, the father or both parents walked the child out to her care provider and gave the child a hug and kiss goodbye. The child did not initiate affection towards the parents, while she did so with her care provider. The child reached for her care provider when visits came to an end.
In Heights’ view, there was “to some extent” a bond between both parents and the child in that the parents had been “pretty consistent” with visiting and maintaining contact with the child. However, the bond in Heights’ professional opinion, was more of an extended family member/visitor bond. It was neither a substantial bond nor one significant enough to avoid adoption.
Father did not attend the section 366.26 hearing conducted in early 2011. At that hearing, the department submitted the matter on its reports and father’s counsel called Heights as a witness.
Asked to describe father’s interaction with the child during visits, Heights testified his interaction was “more of like an extended family member.” Typically father brought food for the child and participated at times in feeding her. There was some small interaction between the child and father. Heights observed that the mother interacted more with the child, while father followed the mother’s lead.
During the adoption assessment period or since Heights had been on the case, father missed approximately seven visits. Once he called to say he was ill. The social worker acknowledged that the child was receptive to father’s kissing and hugging.
In closing arguments, father’s counsel asked the court to find it would be detrimental to the child to terminate parental rights under section 366.26, subdivision (c)(1)(B)(i). Counsel argued that father maintained regular visitation and contact with the child and she would benefit from continuing that relationship.
The juvenile court rejected counsel’s argument. It acknowledged the parents maintained contact and, for the most part, regular visits with the child. The court also found evidence of a friendly relationship. However, the court found insufficient evidence of a positive, emotional or beneficial attachment between the child and either of her parents. Also, neither parent provided any evidence that the child would benefit from continuing that contact. Having found it was likely the child would be adopted, the juvenile court terminated parental rights.
DISCUSSION
Father argues the juvenile court should have applied the beneficial parent/child relationship exception to termination (§ 366.26, subd. (c)(1)(B)(i)) rather than terminate parental rights. In his view, substantial evidence supported the application of the beneficial relationship exception to termination (§ 366.26, subd. (c)(1)(B)(i)), as urged by his trial counsel, and the juvenile court abused its discretion in finding the exception did not apply. As discussed below, the juvenile court properly exercised its discretion by rejecting trial counsel’s argument.
Once a juvenile dependency case reaches the permanency planning stage, the focus shifts to the child’s needs 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. 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.) Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specifically designated circumstances in section 366.26, subdivision (c)(1), 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.)
It is the parent’s burden to show that termination would be detrimental under one of the 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.
To conclude there was an 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.)
Here, there was no such proof. Although father claims there was no doubt that he and his daughter loved one another and enjoyed spending time together and that the child valued their biological relationship, father exaggerates the evidence before the juvenile court. He also criticizes social worker Heights’ report and testimony as insubstantial, while ignoring it was not the department’s burden to prove a negative, i.e. that termination would not be detrimental. Rather, it was father’s burden to establish termination would be detrimental to the child (In re Zachary G., supra, 77 Cal.App.4th at p. 809), something which father failed to do.
As the juvenile court found, father maintained contact and, for the most part, regular visits with the child. There was also evidence of pleasant and affectionate visits. However, father had to demonstrate more than this to compel a finding that termination would be detrimental to the child. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 [A parent must demonstrate more than pleasant visits or loving contact].)
Father claims he made a compelling showing based on earlier evidence that, despite the juvenile court’s order denying him services, he sought treatment and showed signs of progress in the spring of 2010. In father’s view, his effort was so extraordinary that it warranted a finding that termination would be detrimental. He relies on his reading of In re S.B. (2008) 164 Cal.App.4th 289 and In re Amber M. (2002) 103 Cal.App.4th 681 to support his claim. We are neither factually nor legally persuaded by father’s argument in this regard.
Father did make an effort to correct the problems, which led to the child’s removal, despite the court’s order denying him services. However, father also relapsed starting in June 2010. This was not a case, as father claims, in which he did virtually everything that was asked of him. Thus, his claim of extraordinary effort falls factually short.
In any event, neither In re S.B., supra, nor In re Amber M., supra, stand for the proposition that a parent’s effort to reunify coupled with regular, pleasant, and affectionate visits compels a finding that termination would be detrimental to the child. The appellate court, in both cases, did mention the parent’s effort as evidence of his or her devotion to the children. (In re S.B., supra, 164 Cal.App.4th at p. 300; In re Amber M., supra, 103 Cal.App.4th at p. 690.) However, that effort/devotion was not the linchpin to either decision. Notably, in both cases, there was uncontroverted third-party evidence, including expert opinion, of a strong attachment between the parent and the children and the potential for harm to the children. (In re S.B., supra, 164 Cal.App.4th at pp. 295-296; In re Amber M., supra, 103 Cal.App.4th at pp. 689-690.) In this case, father presented no such evidence.
Finally, father criticizes observations the juvenile court made in rendering its decision. In finding the child was likely to be adopted, the court mentioned “[c]hildren as young as [the child] aren’t meant to be in foster care forever.” Having acknowledged the parents’ regular visitation, the court added “but parenting requires much more than visiting.” The court also observed “there’s really been no evidence presented by either mother or father that they have the ability to meet [the child’s] needs at this time and the ability to provide her stability, permanence and physical, mental and emotional well-being.” Although father admits each of the court’s statements is accurate, he claims they did not reflect a reasoned judgment. We fail to discern what father means to argue. In any event, father ignores in the process the well-established rule that we review the court’s action, not its reasoning. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.)
DISPOSITION
The order terminating parental rights is affirmed.