Opinion
E053317 Super.Ct.No. J227783
08-30-2011
In re K.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.C., et al., Defendants and Appellants.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant (mother). Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant (father). Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant (mother).
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant (father).
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
K.C. (mother) and J.C. (father) are the parents of K.C., who was five and one-half years old at the time of the Welfare and Institutions Code, section 366.26 hearing held on April 8, 2011. Both mother and father contend that substantial evidence does not support the juvenile court's determination that the "beneficial parental relationship" exception to termination of parental rights does not apply. We find substantial evidence supports the juvenile court's orders and so affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURE
Detention
On June 21, 2009, San Bernardino County Children and Family Services (CFS) received an immediate response referral regarding three-and-a-half-year-old K.C. from the Rialto Police Department. Mother had flagged down a passing police patrol car as she was having an altercation with father on the side of the road while K.C. watched. Mother and father had attempted to reconcile a few days earlier after a separation of more than one year. Father had borrowed an employer's van to pick up mother and K.C. from the house in which they were living in Lake Arrowhead. The van had broken down in front of a friend's house in Rialto, so the family stayed with the friend for a few days. Mother became angry because father had not yet fixed the van and did not have money for them to acquire a residence. Father told mother to leave, without K.C. Mother vandalized the van using a knife, causing about $2500 in damage, and attacked father. Police arrested father on an outstanding domestic violence warrant and mother for vandalism. When CFS took K.C. into protective custody, he was described as "healthy, happy, well-groomed, appropriately dressed, and free of visible marks or bruises." He "displayed age appropriate development, social skills, comprehension, and communication abilities."
Both parents had a history of domestic violence, drug use and homelessness. Mother had multiple arrests on drug and DUI charges, and had an open case for felony child cruelty. Mother had served a one-year prison term, from which she was released in 2004. She was on probation until March 31, 2013. Father's criminal history also included drug and DUI charges, as well as weapons, theft and spousal abuse charges. Father had previously received a two-year prison sentence for drug possession and was on probation for drug possession. The couple had met in 2004 in drug rehab.
Mother did not have a Child Protective Services history. The child cruelty charge apparently resulted from mother driving drunk and crashing into a tree with K.C. in the car in March 2009. The charge was eventually resolved as reckless driving, with 24 months of probation.
At the detention hearing held on June 24, 2009, the juvenile court formally detained K.C. Visitation was set at a minimum of one hour per week.
Jurisdiction and Disposition
At the jurisdiction and disposition hearing held on August 24, 2009, the parents waived their rights to a hearing. The juvenile court found the allegations in the section 300 petition to be true and removed K.C. The court ordered both parents to participate in reunification services. Father had begun visiting K.C. and the visits went well. The social worker reported an obvious bond between K.C. and father. K.C. was demonstrably happy to see father.
The sustained allegations all concerned failure to protect (subdivision (b)) resulting from each parents' domestic violence, drug use, and criminal and transient lifestyle.
Six-Month Review Hearing
At the six-month review hearing held on March 11, 2010, the juvenile court continued reunification services for another six months. However, at that time mother's whereabouts were unknown, as the people she was living with had moved out of state. In the status review report filed February 11, 2010, the social worker reported that K.C. was doing very well in his foster home and described K.C. as intelligent and compliant. However, K.C. continued having a problem that father had reported existed prior to the dependency—he pulled his own hair out, causing a bald spot, presumably as a response to stress. Mother was working on her services, and had completed the drug/alcohol program, as well as the parenting class. She was participating in individual therapy. Mother maintained consistent and appropriate visitation with K.C. However, mother had one dirty drug test. Father had nearly completed the drug counseling component of his services, but the program declined to honor the certificate it had issued because father twice refused to drug test at the end of the program and became uncooperative. Mother's visits continued to be supervised because she had unstable housing. Father began having unsupervised weekly visits. However, it appeared that father had been telling K.C. that he did not have to obey the foster father and that the foster home was not K.C.'s home, because K.C. began to act out at the foster home after visiting with father.
Twelve-Month Review Hearing
In the status review report filed on September 8, 2010, the social worker stated that K.C. was attached to his foster parents and was receiving weekly counseling. The foster parents reported that K.C. pulled his hair out a lot less than before, but that this behavior increases "whenever he visits with his mother regularly." The foster parents were interested in adopting K.C. should that become possible.
In March 2010, the social worker restricted father's visits to supervised because father revealed that he had gone to a party and gotten drunk, and made no effort to complete drug treatment despite several referrals. Father tested positive for amphetamines in September 2010. In the months prior to the 12-month hearing, mother's supervised visits had become extremely inconsistent. In September 2010, mother refused to drug test. In October 2010, she was arrested for drug possession. Mother had completed drug treatment and parenting education, but had been dropped from individual counseling for non-attendance. Mother's counselor recommended she receive psychiatric care and more intensive drug and alcohol treatment. Mother told the social worker that if she did not get K.C. back, she would continue to use drugs and alcohol, but did request a referral for residential drug treatment.
At the 12-month review hearing held on November 8, 2010, the juvenile court terminated services to both parents and set a section 366.26 hearing to determine a permanent plan for K.C. Mother was not present for the hearing, as it appeared she had been arrested.
Section 366.26 Hearing
In the report filed February 24, 2011, for the section 366.26 hearing, CFS recommended terminating parental rights to both mother and father, and that adoption with the current foster parents be selected as the permanent plan for K.C. Father consistently visited K.C., but had made no attempt to complete the drug and alcohol treatment component of his case plan.
At the section 366.26 hearing held on April 8, 2011, father testified that he had visited K.C. consistently for the entire length of the dependency, that he and K.C. would fly K.C.'s remote control helicopter, practice casting a fishing pole, and play with K.C.'s toys. Father testified that K.C. would always express his affection for father by telling father that he loves him, and with hugs, handshakes and fist pounding. Mother testified that for the past five months, she had been visiting with K.C. consistently once each week. Mother testified that K.C. hugs her and tells her that he loves and misses her. Mother testified that she had completed a residential drug treatment program, that she had turned her life around and had been drug-free since December 2010. Mother testified that she was not concerned that removing K.C. from his foster home of the previous 19 months would be stressful for him.
The social worker testified that the foster parents had included K.C. as a family member and had been supportive of him in seeking counseling for his stress. K.C. had greatly reduced the amount of hair pulling. This activity increased when he was visiting with mother regularly and decreased when they were not visiting. K.C. called the foster parents "mom" and "dad" and got along well with their two other children of similar ages, whom the foster parents were also adopting. The social worker had at one point arranged for father to begin unsupervised visits, but a few months later changed that to supervised visits because K.C. had begun to misbehave with his foster parents and tell them they were not his real parents and so he did not have to mind them. The social worker had never witnessed father say these things to K.C. and no one had asked K.C. whether his father had encouraged him to misbehave.
At the conclusion of the hearing, the juvenile court terminated mother and father's parental rights and set adoption as K.C.'s permanent plan. Both mother and father filed timely appeals.
DISCUSSION
Both mother and father contend that substantial evidence fails to support the juvenile court's determination that the "beneficial parental relationship" exception to termination of parental rights does not apply. We find substantial evidence supports the juvenile court's order.
Once reunification services have been terminated and a child has been found adoptable, "adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i) one such exception exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The parent has the burden of proving that termination would be detrimental to the child under one of the enumerated exceptions. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) "We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). [Citation.]" (In re S.B. (2008) 164 Cal.App.4th 289, 297-298 (S.B.).)
The statutory benefit from a continued relationship means "'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.' . . . '[T]he 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.]" (S.B., supra, 164 Cal.App.4th at p. 297.) However, "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Casey D., supra, 70 Cal.App.4th at pp. 50, 52, fn. 4.) "[S]ignificant 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. [Citation.] 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.' [Citation.]" (S.B., supra, 164 Cal.App.4th at p. 297.)
First, mother does not fulfill the first part of the two-part test set forth above, in that she has not maintained regular visitation and contact with K.C. Mother did consistently visit with K.C. in the five months prior to the April 2001 section 366.26 hearing. However, prior to that her visits had become progressively more inconsistent over time. In fact, the record indicates that in approximately the last half of 2010, mother visited only once—in September, before apparently resuming regular visits in December 2010 when she re-entered drug treatment.
Second, substantial evidence supports the juvenile court's determination that father did not occupy a parental role in K.C.'s life "resulting in a significant, positive emotional attachment." Father did regularly visit with K.C., and K.C. obviously enjoyed the visits. However, there is no evidence in the record that K.C. benefited from the visits to the extent that it would outweigh the benefits K.C. would receive from being adopted by his foster parents. Father had initially progressed from supervised to unsupervised visits, but had to return to supervised visits because he could not refrain from drugs and alcohol and because K.C. began to act up in the foster home and comment that he did not need to obey them because they were not his real parents. Further, the evidence is clear that K.C. would receive a clear benefit from being adopted by his foster parents. K.C. told the social worker that he wanted to live with the foster family "until he is grown up," but did not make similar comments regarding father or mother. In fact, K.C. failed to respond at all when asked about his birth family. All the evidence indicates that K.C. was comfortable and happy in the foster home, both with his foster parents and the other children in the home.
Neither father nor mother has met their burden to establish that substantial evidence does not support the juvenile court's determination that the parental bond exception to the preference for adoption does not apply here. For this reason, we affirm the juvenile court's orders.
DISPOSITION
The juvenile court's orders terminating parental rights and selecting adoption as K.C.'s permanent plan are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P.J. We concur: HOLLENHORST J. RICHLI J.