Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-02161
Pollak, J.
George H. appeals an order terminating his parental rights to his daughter under Welfare and Institutions Code section 366.26. He contends the court erred when it did not apply the exception to termination for a parent who has a continuing beneficial relationship with his or her dependent child. We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural History
In December 2006, just days after her birth, the child was removed from her mother’s care and placed in a foster home. A petition was filed under section 300, subdivision (b) alleging that there was a substantial risk the child would suffer serious physical harm or illness because of the mother’s inability to provide regular care for the child due to her mental illness. The petition alleged the following supporting facts: “b-1 The mother reported that she has a history of psychological illness, has been hospitalized twice... and was prescribed Haldol for delusions; [¶] b-2 The mother has active psychosis, as evidenced by reports on or about December 3, 2006 to staff at Alta Bates Hospital that she hears ‘screaming’ in her head during her pregnancy and while at the hospital; [¶] b-3 The mother received no pre-natal care and reported on or about December 4, 2006 that she had no knowledge of her pregnancy until her delivery; [¶] b-4 The mother’s two older children do not reside in her care. One resides with legal guardians and the other was adopted after the mother’s parental rights were terminated.” The petition stated that the identity of the father was unknown. On March 16, 2007, the court sustained the b-1, b-2 and b-3 allegations of the petition.
Although George had been living with the mother for approximately four years, he was also unaware of the pregnancy until delivery began. Following the birth, George told the social worker that he did not believe mother was too impaired by her mental illness to care for the child. He expressed an interest in being legally identified as the father and helping mother regain custody. On May 18, 2007, George was named the presumed father after a paternity test confirmed that he was the child’s biological father.
On June 20, 2007, the parties stipulated to a proposed reunification plan, which included services for both parents. Reunification services were continued at the six-month and 12-month review hearings, for a total of 18 months of services. The social worker’s report prepared for the 18-month review hearing indicates that George complied with his case plan insofar as he obtained stable housing, completed an approved parenting class, attended weekly therapy sessions and completed a parenting evaluation with a counselor from “Through the Looking Glass.” The social worker reported, however, that he was not in compliance with the portion of his case plan that required him to be prepared to take full responsibility for the child and to supervise all contact between the child and her mother. The social worker expressed concern that while George recognizes that mother has limited abilities due to her mental illness, he does not believe that she has a significant impairment. He has promised that he would be the “sole overseer of the baby,” but he has also indicated that “he sees no problem with leaving [her] in the mother’s care while he goes out to the store.” While George agreed to transport mother to her psychiatric appointments, he failed to do so on several occasions and she continued to miss some of her appointments. During the reunification period, both parents engaged in supervised visitation once a week for one hour with their child. Between February and June 2007, while the parenting evaluation was being completed, the parents had an additional 11 supervised visits.
The counselor from Through the Looking Glass reported that she observed the parents with the child on 11 occasions. She described the child as “passively tolerant” of being with her mother and father. “[T]here seemed to be a lack of enthusiastic laughter, excitement, or joy from her. This is in contrast to the joy and laughter seen in her interactions with her foster mother at the foster home.” Although the child usually smiled when her father arrived for the visit and sometimes reached for him, at the end of the visit, she “never seemed upset to be leaving her parents.” The counselor observed that “[w]hen needing comfort [the child] tended to soothe herself or went to others instead of her parents.” She thought it was “significant and worrisome that [the child] would go to a relative stranger instead of one of her parents for comfort.” The counselor reported that it was difficult to assess George’s practical care-giving skills. George called the child spoiled when she did not want to be changed or fed and the counselor wondered what his response might be if an observer were not present or he was running late for work. The counselor also questioned whether George “fully understands the significance of [mother’s] psychiatric disability.” She noted that while George says that he is willing to take sole responsibility for the child, “his behaviors have tended to show otherwise.”
The social worker acknowledged that this was a difficult case because the parents had complied with many of their court-mandated services. She recommended terminating parental rights, however, because it was clear that the parents would not be able to properly care for the child without significant long-term services. In the social worker’s opinion, “To remove the child from the only parent she has known all her life, into the care of her biological parents with whom she has only visited, and whose parenting abilities are so limited, would cause untold grief and trauma to this young child.”
On November 20, 2008, the court terminated reunification services and set a permanency planning hearing pursuant to section 366.26. At the section 366.26 hearing on September 3, 2009, the court found that the child was adoptable and terminated parental rights. George filed a timely notice of appeal.
Discussion
“At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.] [¶] Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when ‘[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) George contends the court erred when it terminated his parental rights. He argues he met his burden of proving that he regularly visited his daughter and had a beneficial parental relationship with her that outweighed any benefits to the minor that would be achieved by adoption.
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, the court interpreted the “benefit from continuing the relationship” to mean “the relationship 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.” The court explained that “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.” (Ibid.) “The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences.” (Ibid.) In In re S.B., supra, 164 Cal.App.4th at page 299, the court clarified that the continuing beneficial relationship exception does not “require the parent of a child removed from parental custody to prove the child has a ‘primary attachment’ to the parent, or to show the parent and the child have maintained day-to-day contact.” The court recognized that while a significant attachment to a parent “typically arises from day-to-day interaction, companionship and shared experiences” it “may be continued or developed by consistent and regular visitation after the child has been removed from parental custody.” (Ibid.)
In this case, the child was removed from her parents’ custody days after her birth. She has never had the type of day-to-day interactions that typically lead to a bonded parent-child relationship. While George engaged in visitation regularly, his visits were limited to short, supervised visitation once or twice a week. The child recognized George as her father but she appeared ambivalent about going to the visits and was not upset when the visits were over. Contrary to George’s characterization, there is no substantial evidence in the record establishing a significant attachment born from regular contact, companionship and shared experiences.
For these reasons, this case stands in stark contrast to In re S.B., supra, 164 Cal.App.4th 289, relied on by George. In that case, the father was the child’s primary caregiver for three years before her removal. Following her removal, the father “immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services and maintained consistent and regular visitation with the child. He complied with ‘every aspect’ of his case plan.” (Id. at p. 298.) The child was “unhappy when visits ended and tried to leave with [father] when the visits were over.” (Ibid.) The child initiated positive physical contact with the father and spontaneously told him she loved and missed him and wished she could live with him. (Ibid.) The relationship between George and his daughter is simply not comparable. Accordingly, substantial evidence supports the trial court’s finding that the relationship between George and his daughter did not outweigh the well being that the child will gain in a permanent home with the adoptive parent.
Disposition
The order terminating parental rights is affirmed.
We concur: McGuiness, P. J., Jenkins, J.