Opinion
G044692 Super. Ct. No. DP017797
08-10-2011
In re CHLOE N., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JOSHUA N., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
INTRODUCTION
Chloe N. was born in March 2006 to Joshua N. (Father) and Michelle D. (Mother) and was taken into protective custody in November 2008. Father appeals from the order terminating his parental rights to Chloe pursuant to Welfare and Institutions Code section 366.26 (all further code references are to the Welfare and Institutions Code). He argues the juvenile court erred by not finding under section 366.26, subdivision (c)(1)(B)(i) (the parental benefit exception) that he had maintained regular visitation with Chloe and she would benefit from continuing the relationship. We conclude the juvenile court did not err in finding the parental benefit exception did not apply and therefore affirm.
FACTS AND PROCEEDINGS IN THE JUVENILE COURT
I.
Facts Leading to Termination of Reunification Services
In a prior opinion, Joshua N. v. Superior Court (Aug. 17, 2010, G043627) (nonpub. opn.), we stated the relevant facts leading to the termination of Father's reunification services on May 6, 2010:
"[A]. The Juvenile Dependency Petition and Events Leading to the Dispositional Hearing
"Chloe and her brother Christian N.-D. were taken into protective custody on November 4, 2008. Michelle D. (Mother) had left Chloe and Christian in a motel room with a man she had met the prior day, and then failed to return. Mother had not left a telephone number where she could be reached, and there were no food, diapers, or clothes for the children in the motel room. At that time, Father had not seen Chloe for about two months and had not seen Mother for a year.
"The juvenile dependency petition, filed November 6, 2008, alleged failure to protect (§ 300, subd. (b)), no provision for support (§ 300, subd. (g)), and abuse of sibling (§ 300, subd. (j)). The petition alleged, 'mother suffers from bi-polar disorder with mood disorder and has difficulty taking her medication as prescribed' and 'mother has a chronic personal and criminal history of illegal drug use and that unresolved substance abuse problem has impaired her ability to provide the minors with regular care, protection, and support.'
"The petition alleged Father 'knew or reasonably should have known that the children were at substantial risk of neglect and abandonment in the care of their mother,' has 'a history of substance abuse,' and 'is unable . . . to provide for the ongoing care, supervision, and financial support of his children.'
"On November 5, 2008, Father spoke with the intake social worker from the Orange County Social Services Agency (SSA) and confirmed he was Chloe's father. Father had not seen Chloe for about two months and had not seen Mother for a year although they remained married. He 'advised' the social worker 'of a DUI [driving under the influence]' in March 2003 and still drinks socially, but denied drug use except for marijuana he had used a few years earlier. He was aware that Mother frequented motels. He stated that Mother had contacted him several weeks before, telling him to take Chloe, but he could not provide for her because he did not have any money. Father described Chloe as 'hard to maintain, . . . hard to handle' and 'hyper-active but . . . real sweet.' Father stated he could not care for Chloe because he was '"in between places" and can "barely provide for myself."'
"Father was present at the detention hearing on November 7, 2008, but Mother's whereabouts were unknown. The identity of Christian's father was unknown. At the hearing, the juvenile court ordered Chloe and Christian detained and offered Mother monitored visits when she came forward to SSA and to the court. The court found Father to be Chloe's alleged father and granted him twice-weekly monitored visits, each of two hours in length. The court ordered SSA to provide reunification services.
"[B]. Jurisdictional Hearing and Dispositional Hearing
"In the jurisdictional/dispositional report, SSA recommended reunification services not be provided to Mother and reunification services be offered to Father, if he were found to be Chloe's presumed father.
"At the jurisdictional hearing on November 25, 2008, Father pleaded no contest to the allegations of the petition, as amended by interlineation. Mother did not appear, and the juvenile court entered her default. The court found the allegations of the amended petition true by a preponderance of the evidence. Determination of paternity was deferred to a later hearing when Mother would be present.
" A paternity test confirmed Father was not the father of Christian.
"Chloe and Christian, initially placed in Orangewood Children's Home, eventually were placed in foster care, where they remained until the dispositional hearing. An SSA addendum report from January 2009 described Chloe and Christian as apparently happy and content in their foster placement. Father visited every Saturday, but missed a few visits due to transportation problems. Visits were described as appropriate.
"A contested dispositional hearing was held over four days between February 24 and March 2, 2009. The juvenile court found Father to be the presumed father of Chloe and ordered reunification services for Mother. Father's case plan included the objectives that he show his ability and willingness to have custody of Chloe, obtain resources to meet her needs and provide a safe home, follow the conditions of the visitation plan, and stay sober and show his ability to live free from alcohol dependency.
" In In re Chloe N. (Sept. 4, 2009, G041718) [nonpub. opn.], we affirmed the order granting Mother reunification services. . . .
"On March 12, 2009, a dispositional order was entered declaring Chloe and Christian to be dependent children, vesting custody with SSA, and approving a case plan and visitation plan. The court approved SSA's case plan and visitation plan. A six-month review hearing was set for May 22, 2009.
"[C]. May 22, 2009 Status Review Report
"A status review report, dated May 22, 2009, described Father's compliance with his case plan as 'minimal.' Father had not provided proof he was enrolled in a parenting education program or proof of attendance at meetings of Narcotics Anonymous or Alcoholics Anonymous (AA). He provided a certificate of completion of an SSA-approved substance abuse outpatient treatment program. Father drug tested negative 16 times and missed one random drug test. Father's visits with Chloe generally were consistent, with two missed visits, and Chloe seemed to enjoy them. Father acted appropriately during the visits, and the visitation monitor later reported that Father 'practices what he's learning in his parenting classes.' The foster mother stated, 'Chloe has very little problems after the visits with her father.'
"The six-month review hearing was continued several times, and, after many continuances, ultimately was held as a contested matter on February 8, 2010.
"[D]. Addendum Reports and October 23, 2009 Status Review Report
"SSA's addendum reports and a status review report dated October 23, 2009 reported the following events between May 22 and October 23, 2009.
"Father had rented a room, remained unemployed, lived off of his retirement, and planned to apply for unemployment benefits. He submitted a certificate of completion of a parenting course, dated June 17, 2009, but SSA was unable to verify its authenticity at that time.
"In June 2009, Father stated he would not attend AA meetings because he was not an alcoholic. Father later provided proof that he regularly attended AA meetings between June 29 and October 5, 2009. He continued to attend AA meetings in October. Father chose, however, not to work a 12-step program or get a sponsor and believed a sponsor would not be beneficial to him.
"Between May 4 and October 3, 2009, Father had 19 negative drug tests and six missed tests. He told the social worker he missed several drug tests 'out of spite.'
"As of August 13, 2009, Father had not been in contact with the assigned social worker for over two months and had not responded to her telephone messages or letters. Father met with the social worker in person on September 1. The social worker denied Father's request for unmonitored visits with Chloe because of Father's missed drug tests. Father stated he did not agree he should have random drug tests because the only 'blemish' on his record was the DUI.
"The visitation monitor reported that other than two cancelled visits, Father had been consistent in attending visits and arriving on time. The monitor reported that Chloe 'appears comfortable and happy when visiting her father' and 'is often affectionate with her father and wraps her arms around his neck and often laughs during their visit.'
"As to Father's ability to meet Chloe's physical and material needs, the October 23, 2009 status review report stated: 'The child's father is currently unemployed and receiving state unemployment. The child's father has limited funds after paying his rent. The undersigned finds that the child's father is currently unable to meet the physical needs of the child as he struggles to meet his own physical needs. The child's father states that [he] meets his physical needs through church donations. The foster mother often provided the child with meals and supplies during the father's visits as the father could not afford to do so[]on his own.' When the social worker asked Father if he could financially provide for Chloe if he were to reunify with her, Father answered, '[o]nly God knows that.'
"The August 20, 2009 addendum report, the September 15, 2009 addendum report, and the October 23, 2009 status review report all deemed Father to be noncompliant with his case plan and made the same recommendation to terminate reunification services.
"[E]. Addendum Reports from November 16, 2009 to February 8, 2010
"Addendum reports, dated November 16, November 23, and December 7, 2009, and January 13 and February 8, 2010, reported the following.
"Father met with the social worker on November 5, 2009 and requested unmonitored visits with Chloe. The social worker stated she would authorize supervised visits at Orangewood Children's Home. Father declined, stating that supervised visits were 'more of a punishment than a reward' and that he preferred staying with monitored visits at a park or a shopping mall.
"The social worker reviewed the case plan objectives with Father and read to him the first objective, which was to obtain resources to meet Chloe's needs and to provide a safe home. Father stated he was able to provide a safe home for Chloe but he could not obtain the resources to meet her needs because it was 'impossible' for him to maintain employment while also maintaining a schedule of court hearings, meetings with the social worker, and visits with Chloe. The social worker explained she could be flexible and arrange meetings and visits after his workday. Father provided proof of attendance at AA meetings and informed the social worker he had a sponsor.
"Father met with the social worker again on December 3, 2009. He asked that he no longer be subject to random drug testing and no longer have to attend AA meetings. He did not believe drug testing was fair because his DUI occurred five years earlier and he had completed a substance abuse program. (Father had tested negative on six out of six tests between October 19 and November 25, 2009.) The social worker told Father he had to attend AA meetings as long as he received reunification services.
"The social worker again asked Father whether he could meet Chloe's physical needs. When Father responded that he could, the social worker asked him what had changed since the last month. Father replied a friend had given him a car. The car was operable, but did not have registration and license tags. The social worker asked whether Father could meet Chloe's financial needs: He replied he could not because he was not working and 'has low income from unemployment benefits.' Father said he would apply for welfare benefits if he were to reunify with Chloe.
"On December 4, 2009, the social worker authorized Father to cease random drug testing because he had completed a four-month period with no positive or missed tests.
"The addendum reports, dated November 16 and December 7, 2009, stated: 'Because the child's father cannot financially meet the needs of the child at this time and because the children's mother continues to struggle with her medical conditions, the undersigned continues to recommend termination of Family Reunification Services for both parents.'
"The January 13, 2010 addendum report deemed Father noncompliant with his case plan because he was not utilizing his AA sponsor and recommended termination of reunification services. Father met with the social worker on January 14, 2010 and provided proof he attended AA meetings weekly from October 13, 2009 to January 12, 2010. He told the social worker he was utilizing his AA sponsor.
"Father told the social worker on January 14 that 'it was still an "issue" for him in regards to not being able to meet the needs of [Chloe]' and that he could not meet Chloe's needs because he was still unemployed. The social worker denied Father's request for increased visiting hours because SSA had recommended termination of his parental rights and referring Chloe for adoption.
"Chloe's foster mother reported to the social worker that Chloe's behavior was 'atrocious' after the visits with Father and that when it was time for Chloe to leave for a visit with Father, Chloe would say, 'I don't want to.' The visitation monitor reported the visits with Father went well and Chloe appeared to enjoy them.
"The February 8, 2010 addendum report stated Father was compliant with his case plan, but '[F]ather continues to state that he cannot meet the financial needs of [Chloe] as he is currently unemployed.' That report recommended termination of parental rights.
"[F]. Combined Six-month and 12-month Review Hearing
"The combined six-month and 12-month review hearing commenced on February 8, 2010. The juvenile court received in evidence SSA's status review reports dated May 22 and October 23, 2009, and addendum reports dated June 30, July 16, July 30, August 20, September 15, October 23, November 16, November 23, and December 7, 2009, and January 13 and February 8, 2010.
"[1]. Priscilla Valdez's Testimony
"Priscilla Valdez, the social worker assigned to the case since March 2009, testified. In regard to Father's compliance with the case plan, Valdez testified Father had completed a parenting class and completed a substance abuse treatment program before the case opened. Valdez testified Father was not compliant with his case plan because of missed drug tests and failure to attend AA meetings during the first two reporting periods, and because Father did not communicate with Valdez from June through the middle of August 2009. Father later became compliant with drug testing for a 90-day period, and she discontinued drug testing. Valdez believed Father's substance abuse issues had been resolved.
"Valdez did not believe Father could provide ongoing care and supervision for Chloe because 'father has stated this to me in our face-to-face visits that we have at the social services office.' Her belief would be the same if Father now asserted he could provide care and supervision for Chloe because he has never demonstrated the ability to do so. Father was still required to have monitored visits, and Valdez opposed unmonitored visits because of Father's noncompliance with his case plan and failure to stay in contact with her between June and August 2009.
"Valdez testified she recommended termination of reunification services because Father had been noncompliant with his case plan, he was not ready for unmonitored visits with Chloe, reunification would break the sibling bond between Chloe and Christian, and Chloe had told the foster mother she did not want to visit Father. If the juvenile court were to order additional reunification services, Valdez would recommend Father have supervised visits with Chloe and conjoint therapy, and would require Father to demonstrate his ability to care for Chloe and to comply with her request to have his roommates 'live scanned.' Valdez expressed concern that even with additional services, Father would not be ready to reunify with Chloe and meet her physical and financial needs. Valdez acknowledged she had never visited Father's home and never asked Father about his willingness to allow Chloe to visit Christian.
"Valdez acknowledged SSA had not provided services to Father to help him financially and SSA does not provide assistance in finding work. Valdez was concerned about what appeared to be Father's lack of initiative in seeking work. Although Father told her he was looking for work, she would have liked to have seen job applications from him.
"With the exception of an incident in which Father encouraged Chloe to fight with another child, Valdez had no safety concerns over Father's visits. After speaking with Father about the incident, she considered it resolved. Valdez also expressed concern over Father's failure to provide food for the visits.
"Valdez testified that Chloe had not been provided services other than therapy to help her cope with making the transition from living with the foster parents to living with Father and with being separated from Christian. Valdez's concern over breaking the sibling bond arose in December 2009 when Chloe's reaction to Mother's inconsistent visitation led Valdez to understand that Chloe has difficulty dealing with change.
"Valdez testified that parents in reunification do not have to be employed but must be able to meet the child's financial needs and provide a safe and secure home, food, and clothing. Father's only income was unemployment benefits, and Valdez did not believe they were sufficient to meet Chloe's basic needs. She believed Father's unemployment benefits if combined with welfare assistance might be enough to meet Chloe's needs.
"When asked what Father needed to do to reunify with Chloe, Valdez answered, 'I think one of the most important things is willingness to have custody of his child.' Father had told Valdez he was not ready to care for Chloe because he was unemployed, and Valdez interpreted that statement to mean Father was unwilling to care for Chloe.
"[2]. Father's Testimony
"Father testified he did not contact Valdez from June through mid-August 2009 because he was discouraged by the case. He contended he received only one telephone call from the social worker during that time period. He consistently visited Chloe during that period, and believed those visits were more important than meeting with Valdez.
"When asked what had changed since November 2008, when he told the social worker he had no money and could not take care of Chloe, Father answered that he was now receiving unemployment benefits. He also received assistance from his church. Father testified he had lived in the same place since October 2008.
"Father no longer believed Chloe was hard to maintain because 'she's gentle, we get along, she's loving, she's kind and . . . she listens very well to me.' He had lived with Chloe from her birth in March 2006 to December 2007. Father testified he had not seen any emotional or behavioral issues with Chloe and did not believe she needed therapy. He would comply if the court ordered therapy and was willing to participate in conjoint therapy with Chloe to help the transition to reunifying with him.
"Disagreeing with Valdez, Father testified he could take care of Chloe because 'I have a place where I live, I have my own room, and I'm receiving money and if I need help with food, I am able to go to a food bank or my church to provide for her needs in that way.' He understood there were services available to provide child care.
"Father acknowledged his driver's license had been suspended for failure to pay child support and his ex-wife had filed a harassment complaint against him. He currently was making his child support payments.
"Father no longer drinks alcohol and had not smoked marijuana since 2004. He had drunk some alcohol during the case, but never to the point of intoxication, and had stopped drinking for moral and religious reasons. After his DUI arrest, he had completed a substance abuse treatment program and believed requiring him to complete another program was unjust. He attended AA meetings, had a sponsor, and worked the 12 steps to comply with his case plan and reunite with Chloe. He believed AA was helpful in coping with life's problems but did not believe he had a substance abuse problem.
"Father testified he wanted to have Chloe live with him and needed '[f]inancial stability' to take care of her. He was a union worker in the construction industry and work was scarce. Father could not, as a union member, do work on a construction site outside of his own trade. He had not applied for employment outside of his trade.
"[3]. The Juvenile Court's Ruling
"The juvenile court found by a preponderance of the evidence that return of Chloe to Father would create a substantial risk of detriment to her physical or emotional well-being based on Father's inability to provide support. The court considered Father's substance abuse issue to be resolved. The court stated: 'The [social] worker testified that on multiple occasions, most recently January 14, 2010, father has told her that he is not able to provide ongoing care and supervision of the minor because he doesn't have a job.
Conversely, father testified on cross-examination that he's able to meet the minor's needs. The court gave almost no weight to the entirety of father's testimony. His anger, hostility, disgust and contempt w[ere] barely concealed and simmered just below the surface during his entire testimony. [¶] The court believes that for father nothing has really changed from the time he was first interviewed by the social worker just before the detention hearing when he explained, quote, "I don't have no money and no way to take care," closed quote and, quote, "I can barely provide for myself," close quote.'
"The juvenile court found by clear and convincing evidence there was not a substantial probability that Chloe would be returned to Father within the 18-month reunification timeframe because 'father has shown no commitment or motivation to improve his ab[ility] to provide support for his child. . . . [T]here is no credible evidence that he . . . will do anything between today and an 18-month review to change things.' The court noted that Father's unemployment benefits eventually would end, yet Father 'has done nothing to get a job or otherwise improve his ability to provide support for Chloe.'
"The court also found, however, that reasonable services had not been offered or provided to Father in that he had not been permitted increased visitation despite his level of compliance with his case plan. The court ordered SSA to increase the amount of Father's visitation by increasing the length or the frequency of visits, or by permitting unmonitored visits. The case was continued to the 18-month review hearing.
"[G]. March 15, 2010 Interim Review Report; April 8, 2010 Status Review Report; and May 6, 2010 Addendum Report
"An interim review report, dated March 15, 2010, described Father as compliant with his case plan. A new case plan was prepared and approved for Father . . . .
"The status review report, dated April 8, 2010, described Father's cooperation with the case plan as moderate. Father missed scheduled appointments with the social worker in February, March, and April 2010 and did not inform the social worker his telephone number had changed. In March, the social worker spoke with Father by telephone and asked him whether he could provide for Chloe. Father answered: 'Not by Court standards. I can't.' A few days later, in a face-to-face meeting with the social worker, Father responded to the same question: 'I'm in the same condition. . . . No, I can't.' Father confirmed he wanted to reunify with Chloe.
"The visitation monitor reported that Father's visits with Chloe were appropriate. Father usually visited Chloe at a shopping mall, a park, or the beach. Chloe freely approached Father, hugged him, spoke with him, and made consistent eye contact. Father had an unmonitored visit with Chloe in March 2010. The visitation monitor reported that, as far as she knew, the visit was 'fine' and Chloe had no change in demeanor after the visit.
"The April 8, 2010 report stated: 'The child's father is mostly compliant with attending [AA] Meetings and utilizing his sponsor. The child's father began unmonitored visits. There are no concerns in regards to the child's father's unmonitored visits. The undersigned is concerned that the child's father continues to state that he cannot meet the needs of the child. The undersigned is concerned that the child's father does not seem to be motivated, nor committed nor confident in meeting the needs of the child.' SSA recommended termination of Father's reunification services and setting a section 366.26 hearing.
"An addendum report, dated May 6, 2010, noted Father did not appear for a scheduled appointment in April with the social worker and maintained the recommendation that reunification services be terminated and the court set a section 366.26 hearing.
"[H]. Eighteen-month Review Hearing; Termination of Reunification Services
"The 18-month review hearing was held on May 6, 2010. Father waived his right to a contested hearing and presented no new evidence.
"The juvenile court confirmed its factual findings made at the conclusion of the combined six-month and 12-month review hearing. The court stated that the April 8, 2010 status review report and May 6, 2010 addendum report 'continue to indicate a continuation of the same factual basis for a finding of substantial risk of detriment on return [as] articulated in the court's ruling for the 12-month review in the case.' The court found that Father had been provided reasonable reunification services, terminated reunification services, and scheduled a section 366.26 hearing."
In Joshua N. v. Superior Court, supra, G043627, we denied Father's petition for a writ of mandate to challenge the juvenile court's order terminating reunification services and setting a section 366.26 hearing.
II.
Father's Visitation After Termination of Reunification Services
In June 2010 and again in July 2010, the foster mother informed the social worker that Chloe underwent a "transition" or "adjustment" period following her weekly visits with Father. During a week in which the monitor cancelled a visit, Chloe was "sweet as pie," but, after returning from a visit with Father, had temper tantrums and was mean and angry to her brother, Christian N.-D. Earlier, in January 2010, the foster mother reported Chloe's behavior following visits with Father was "atrocious," and that when it was time to leave for a visit, Chloe would say, "I don't want to."
In August 2010, the visitation monitor informed the social worker that Father had a one-hour monitored visit and a one-hour unmonitored visit each week with Chloe. The visitation monitor told the social worker that Chloe's visits with Father were going well, Chloe did not resist going on visits, and Chloe was affectionate with Father and "upbeat" during visits. The visitation monitor did not notice any change in Chloe's behavior after the visits. Father had never cancelled a visit but had tried to reschedule some visits at the last minute to accommodate his work schedule. The visitation monitor was working with Father to schedule visits to not conflict with Father's work schedule.
The section 366.26 report, dated September 3, 2010, reported the foster parents wanted to adopt Chloe and her brother, Christian N.-D. The report stated: "[Chloe]'s daily needs have been adequately met by the prospective adoptive parents since being placed with them. They have demonstrated the ability to ensure [Chloe]'s health, safety, and welfare. By all accounts, [Chloe] appears to be thriving in the home." The report also stated: "[Chloe] refers to the prospective adoptive family as her family and states that she would like to stay with them when asked but is too young to fully understand the concept of adoption to provide an official statement." The report recommended termination of parental rights and placement of Chloe for adoption.
In September 2010, Father filed a request for an order to vacate the section 366.26 hearing and return Chloe to his care under a plan of family maintenance on the ground Father had secured employment and had the financial means to provide for Chloe. The juvenile court summarily denied the request.
Father cancelled several visits with Chloe in September 2010, and on September 22, the foster mother reported that Father had visited Chloe only once in the previous several weeks. The foster mother reported that, following a visit with Father on September 23, Chloe had "her 'usual transition.'"
The visitation monitor reported that at the beginning of Chloe's visit with Father on September 23, Chloe ran to him and said, "I miss you every day." Chloe was very affectionate with Father during the visit.
On October 20, 2010, the visitation monitor informed the social worker that Father had not visited Chloe in October and had visited her only twice in September. Father had not returned the visitation monitor's telephone calls and text messages and had given no indication he intended to stop visiting Chloe. That day, the social worker was able to reach Father, who said he was working in construction but not enough to be considered part time. Father expressed a desire to reunify with Chloe. When asked why he had missed visits with Chloe, Father replied he had been "busy with other things" and would not explain what those other things were.
In October 2010, Chloe had difficulty transitioning to a new therapist. In the first session with the new therapist, Chloe put her head down, would not answer the therapist's questions, and defecated in her pants. The foster mother had told the therapist that Chloe sometimes had "out of control behavior" and the therapist recommended a particular therapy program to control it.
On November 9, 2010, the foster mother told the social worker that Father did not visit Chloe at all in October and had visited her only once in November. In an addendum report dated November 15, 2010, the social worker concluded Father "continues to be inconsistent in the visits with [Chloe]."
III.
The Section 366.26 Hearing
The juvenile court conducted the section 366.26 hearing on November 15, 2010. Father waived his right to a contested hearing. He objected to terminating his parental rights and made an unsworn statement to the court in lieu of testifying.
Father stated to the court: "[I]t would not benefit my relationship with my daughter to sever[]. [¶] I am her father and there's no one that's ever going to separate that from me being her father and she desires to see me and I desire to see her. She loves being around me. She misses me when I'm gone, same as I do. [¶] . . . I'm in the position to take care of her, but I don't see how it would benefit her and . . . it seems like as if you are just trying to wipe out her memory of me. [¶] I was there when she was conceived, I was there through all of these tests, before she was born, I was there when she was born and I took care of her for a year and a half. [¶] Things happen, life happens. Her mother, she took off, just left me in a really bad position and things happen. [¶] And I just believe that it's not the right thing to do to keep me from see[]ing my daughter. I don't understand, how is that going to benefit her? It may benefit the caretakers, but I'm still her father and I don't believe it's right that social services and anybody else that wants to keep her from me. [¶] My character is still been the same. I'm not a criminal or a drug addict or an alcoholic. I'm a good father to her. I've never put her in danger or anything and I would just like to still have a relationship with her. [¶] That's all really much what I want to say. I'm just, I'm pleading with you to say can I still have a relationship with my daughter. I don't think it's fair, I don't think it's right. I didn't do anything wrong to her."
Father's counsel argued the court should order legal guardianship with ongoing visitation between Father and Chloe.
The juvenile court considered and received in evidence SSA reports dated September 3, October 26, and November 15, 2010. The court found by clear and convincing evidence Chloe was generally and specifically adoptable, ordered termination of Mother's parental rights and Father's parental rights, and ordered Chloe to be placed for adoption. The court concluded the parental benefit exception did not apply. In reaching that conclusion, the court found that Father had been inconsistent in visiting Chloe, he had visited only twice in the past three months, and the inconsistency in visitation harmed Chloe. The court also found the evidence did not preponderate in favor of a finding continuing the parent/child relationship would be in Chloe's best interest.
Father filed a timely notice of appeal from the order terminating parental rights.
DISCUSSION
I.
The Parental Benefit Exception of Section 366.26, Subdivision (c)(1)(B)
"Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption." (In re C.B. (2010) 190 Cal.App.4th 102, 121, citing section 366.26, subdivision (b)(1).) Termination of reunification services provides a sufficient basis for terminating parental rights unless the juvenile court finds a "'"compelling reason"'" for finding that terminating parental rights would be detrimental to the child under one or more of the specified statutory exceptions. (In re C.B., supra, 190 Cal.App.4th at p. 122.) The parent bears the burden of showing that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (Ibid.)
One of the statutory exceptions is the parental benefit exception under section 366.26, subdivision (c)(1)(B)(i). It provides that parental rights cannot be terminated if the juvenile court "finds a compelling reason for determining that 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." (Ibid.)
The abuse of discretion standard of review governs our review of the juvenile court's determination whether the parental benefit exception applies, while the substantial evidence standard governs pure findings of fact. (In re C.B., supra, 190 Cal.App.4th at pp. 122-123.)
II.
The Juvenile Court Did Not Abuse Its Discretion in Concluding the Parental Benefit Exception Did Not Apply.
The parental benefit exception applies when the parent meets his or her burden of showing (1) "[t]he parents have maintained regular visitation and contact with the child" and (2) "the child would benefit from continuing the relationship." (§ 366.26, subdivision (c)(1)(B)(i).) "The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
A. Regular Visitation and Contact
The juvenile court concluded the parental benefit exception did not apply based on a finding that Father did not maintain regular visitation and contact with Chloe. Substantial evidence supports that finding. In the September 3, 2010 report, the social worker stated Father "maintained visitation with the child Chloe . . . throughout this course of dependency with some cancellations." But, in September 2010, Father visited Chloe only twice, did not visit her at all in October, and visited her only once between November 1 and 9. In an addendum report dated November 15, 2010, the social worker concluded Father "continues to be inconsistent in the visits with [Chloe]."
Father argues we must consider the consistency of his visitation over the course of the entire dependency proceeding, not just during the final several months. Viewed as such, consistent visitation over 21 months, followed by a sudden and nearly complete cessation of visits over several months, does not constitute regular visitation.
B. Benefit from Continuing the Parent/Child Relationship
In addition, Father did not meet his burden of showing Chloe would benefit from maintaining a parental relationship. In considering the parental benefit exception, the issue is not whether the child will receive some benefit from continuing the parental relationship. Instead, the parental benefit exception requires weighing the benefit of continuing the parental relationship against the benefit the child would gain by adoption into a permanent home. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Factors to be considered when determining whether a parental relationship is important include (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) Chloe was age two years, nine months when placed in custody and is now five years, five months old. When Chloe was placed in custody, Father had not seen her for two months. Chloe has been living with the foster parents, the prospective adoptive parents, since November 2008.
The various SSA reports showed the interaction between Chloe and Father was generally positive and she might benefit in some ways by maintaining the parent/child relationship. When Father visited, Chloe was affectionate, and, at the outset of the visit on September 23, 2010, she ran to him and said, "I miss you every day." At the section 366.26 hearing, Father stated he loved Chloe and believed she would not benefit from severing her relationship with him. We have no reason to doubt Father's statement was sincere and heartfelt. Yet, this evidence demonstrates at best a degree of "frequent and loving contact" between Father and Chloe that is insufficient to meet Father's burden of proving the parental benefit exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Chloe needs more than pleasant visits: She needs stability, permanence, and parents occupying true parental roles. "A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
Father argues this case is similar to In re S.B. (2008) 164 Cal.App.4th 289, in which the Court of Appeal concluded the juvenile court erred in finding the parental benefit exception did not apply. The father in In re S.B. had maintained regular, consistent, and appropriate visits with the child throughout the dependency proceedings and they had "'an emotionally significant relationship.'" (Id. at p. 298.) The father had been the child's primary caretaker for three years when she was removed from his custody. Upon her removal, he recognized his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and complied with every aspect of his case plan. (Ibid.)The child loved the father, wanted their relationship to continue, and "derived some measure of benefit from his visits." (Id. at pp. 300-301.) A psychologist conducted a bonding study of the father and child and testified that, due to their "fairly strong" bond, "there was a potential for harm to [the child] were she to lose the parent-child relationship." (Id. at pp. 295-296.) The appellate court concluded that "[b]ased on this record, the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [the father]." (Id. at p. 301.)
Although there are some similarities between In re S.B. and this case, we caution that the appellate court which decided In re S.B. stated later in a different case: "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) The same court stated in In re C.F. (2011) 193 Cal.App.4th 549, 558: "Our effort in Jason J. to discourage the improper and inaccurate use of our opinion in S.B. has not been successful. Following Jason J., in literally dozens of unpublished opinions various panels of this court and courts in other appellate districts have been required to distinguish S.B. on its facts and repeatedly reject the notion a parent can prevent termination of parental rights by merely showing there is some measure of benefit in maintaining parental contact. We have not found any case, published or unpublished, in which a reviewing court, relying on S.B., provided relief to a litigant whose parental rights were terminated."
We add another opinion to those dozens distinguishing In re S.B. Here, unlike In re S.B., Father did not maintain consistent visits with Chloe throughout the dependency proceeding, his compliance with his case plan was inconsistent, the nature and quality of his visits with Chloe were different from the parent/child visits in In re S.B., and there was no testimony from a psychologist or a bonding study showing that termination of parental rights would be detrimental to Chloe. (See In re Amber M. (2002) 103 Cal.App.4th 681, 689-691 [order terminating parental rights reversed where experts opined that children had a primary beneficial relationship with parent outweighing benefit of adoption].)
The record supports a finding the benefit Chloe might gain by continuing her relationship with Father was outweighed by "the well-being [Chloe] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We conclude the juvenile court did not abuse its discretion by concluding the parental benefit exception did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.