In re Sofia C.
Filed 11/7/13 In re Sofia C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
In re SOFIA C., a Person Coming Under the Juvenile Court
Law.
B247956
(Los
Angeles County
Super. Ct.
No. CK85623)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
THOMAS V.,
Defendant
and Appellant;
E.C.,
Defendant and Respondent.
APPEAL
from an order of the Superior Court
of
County. D. Zeke
Zeidler, Judge. Affirmed.
Daniel
G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant Thomas V.
No
appearance on behalf of Plaintiff and Respondent.
Grace
Clark, under appointment by the Court of Appeal, for Defendant and Respondent
E.C.
No
appearance for Minor.
* *
* * * *
Thomas
V. (Father) appeals from a Welfare and Institutions Code
(the child). Father claims the trial
court abused its discretion in denying his section 388 petition and committed
reversible error in failing to apply the section 366, subdivision
(c)(1)(B)(i) exception to termination of parental rights. The Los Angeles County Department of Children
and Family Services (Department) has not filed an opening brief as it was
aligned with Father in the juvenile court.
E.C. (Mother) has filed an opening brief in support of the juvenile
court’s order denying the section 388 petition and terminating parental
rights. We affirm the order terminating
parental rights in its entirety.
The
Department filed a section 300 petition on behalf of the three-day-old child in
December 2010. As sustained, the
petition alleged the child was born suffering from a detrimental condition
consisting of a positive toxicology screen for amphetamine and
methamphetamine. The condition could not
have existed except as the result of Mother’s unreasonable acts, which placed
the child at serious risk of physical and emotional harm. Mother had a positive toxicology screen for
amphetamine and methamphetamine at the time of the child’s birth. Father failed to take action to protect the
child when he knew of Mother’s illicit drug use. Mother’s substance abuse and Father’s failure
to protect the child endangered and placed at risk the child’s physical and
emotional health and safety.
The
sustained petition further alleged Mother had a history of substance abuse
including cocaine and marijuana. Mother
was a current user of amphetamine and methamphetamine which rendered her
incapable of providing regular care for the child. Mother used amphetamine and methamphetamine
while she was pregnant with the child.
Mother’s substance abuse endangered the child’s physical and emotional
health.
The
sustained allegations against Father were that he had a history of substance
abuse and was a current user of methamphetamine, which rendered him incapable
of providing regular care for the child.
Father’s substance abuse endangered the child’s physical and emotional
health and safety and created a detrimental home environment placing the child
at risk.
The
Department’s detention report stated the child had been placed with R.N. (Step-Maternal
Grandmother). The report also outlined 23-year-old
Mother’s drug abuse history which, according to M.C. (Maternal Grandfather), dated
back to when she was 14 or 15 years old.
Mother stated she first used marijuana recreationally. She began smoking methamphetamine when she
was 18 years old. Mother smoked “‘about
$20’†each time. Mother smoked off and
on for a while. Mother then began
smoking twice a week until she stopped in June 2010 when she found out she was
pregnant. Mother used methamphetamine the
first trimester of her pregnancy because she did not know she was
pregnant. Mother stated that Father and
she smoked methamphetamine together.
They were together for two years during which time they used drugs
together.
Maternal
Grandfather stated Mother met Father when she was about 20 or 21. When Maternal Grandfather visited their home,
he observed security cameras outside the home and padlocks on the door. Mother asked Maternal Grandfather if he knew
where Father could get a water meter for Father’s new “‘agriculture business.’†The house smelled of marijuana and Maternal
Grandfather observed marijuana plants in the home. Mother showed Maternal Grandfather a medical
marijuana card. Maternal Grandfather’s
son told him Father was a drug dealer.
Maternal Grandfather believed Father was a dealer because of the plants
and individuals going in and out of the home.
During
Mother’s pregnancy, Maternal Grandfather and his wife attempted to get Mother the
help she needed to treat her addiction. Mother
received inpatient drug treatment until August 2010. According to Maternal Grandfather, Mother was
kicked out of the treatment center. When
Mother was kicked out of the drug treatment center in August 2010, he allowed
her to stay in their home in November 2010.
Mother was given rules she had to follow if she wanted to live in the
home. On November 22, 2010, Maternal
Grandfather noticed on more than one occasion, that during Mother’s last week
of pregnancy she would have a “burst of energy.†L.S. (Maternal Grandmother) suspected Mother
used drugs during the last week of the pregnancy when Mother went out to dinner
with Father. Mother admitted to Maternal
Grandmother that Father grew marijuana for sale.
At
the detention hearing, the juvenile court found Father to be the presumed
father. The child was detained. The parents were given family reunification
services and monitored visits and the Department was given discretion to
liberalize visitation. Father would be
allowed unmonitored visits once he enrolled in a program and tested clean. The Department was ordered to explore the
possibility of giving the paternal grandparents visits every other weekend and have
them act as Father’s monitors.
In
an interim report, the Department stated that efforts to evaluate the paternal grandparents’
home were unsuccessful. Paternal
Grandmother expressed skepticism about the child’s paternity. She was willing to have the placement if it
was Father’s child but she needed “a DNA.â€
The paternal grandparents did not attend a scheduled interview.
In
the jurisdiction/disposition report, the Department stated Father was not sure
if the child was his. Father did not
appear for drug testing on December 8, 2010 and December 20, 2010. Father did not return the social worker’s
call regarding a live-scan request for the paternal grandparents. Father also did not appear for a scheduled
interview with the social worker.
When
Father visited with the child on December 3, 2010, he was accompanied by the
paternal grandparents and an unknown female.
Paternal Grandmother asked for a paternity test at the visit. Father missed visits on December 5, 8, and 19,
2010 and did not call to cancel or reschedule the visits. Father did not appear on December 15, 2010
after confirming a visit. On December
22, 2010, he called at 7:51 p.m. for a scheduled 7:30 p.m. visit. When Father showed up, the baby was
asleep. Father appeared to be high. His eyes were droopy. His speech was mumbled, rapid and difficult
to understand.
A
contested jurisdiction/disposition hearing was held on April 27, 2011. The juvenile court sustained 3 counts under section
300, subdivision (b) and dismissed one count.
The Department was ordered to provide family reunification
services. Father and Mother were given
monitored twice weekly visits with discretion to liberalize. Father and Mother were ordered to participate
in individual and drug counseling.
Father and Mother were ordered to submit to random drug testing.
By
October 2011, Father was living in Redding, California and had only visited the
child three times. Each time, the Step-Maternal
Grandmother observed Father appeared to be under the influence of drugs. Father did not engage the child during the
visits. Father did not comply with the
case plan and did not drug test. After
contacting the social worker to inform her of his decision to relocate to
Redding, Father requested a good-bye visit with the child. Father refused to have the visit after
realizing the Step-Maternal Grandmother would monitor the visit and he did not
offer an approved substitute monitor.
The
child was living with Step-Maternal Grandmother and Maternal Grandfather
(caregivers), who wanted to adopt her. The
child was observed to be happy, neatly groomed, clean and thriving. Her caregivers had a strong bond with
her. Mother had not demonstrated a
willingness to reunify with the child.
Mother had stopped visiting around March 2011 and had no bond with the
child. From the onset of the case until
February 2011, Mother was in compliance with the case plan, which included increased
visitation time with the child and overnight visits in the caregivers’
home. However, on February 28,
2011, during a visit, Mother’s eyes were extremely dilated. On March 25, 2011, Mother was discharged from
a drug treatment program for lack of participation and missed drug tests.
In
January 2012, the Department reported Father had enrolled on October 28, 2011 in
an inpatient substance abuse program in
for the program participants so contact with Father was limited. Father was transferred to the San Diego branch
of the program on November 28, 2011.
Father’s counselor stated Father was active in the program, and the social
worker stated that Father seemed to be committed to sobriety. However, Father’s commitment to the child was
uncertain because of his lack of communication with the social worker. Father had not visited with the child. Mother had not complied with court orders or
the case plan. Mother’s visits were
inconsistent. The Department recommended
that family reunification services be terminated and that a section 366.26
hearing be set.
On
January 3, 2012, the juvenile court found Mother failed to comply with court
orders and the case plan. The court
terminated family reunification services for Mother. The matter was continued as to Father for a
contested hearing.
In
February 2012, the Department reported the child was doing well in her
placement. The child was healthy and
appeared to have a nurturing attachment to her caregivers. The child’s daycare provider stated the child
was incredibly bright, got along well with others, and was very happy and
playful.
On
January 13, 2012, the social worker provided Father with referrals to
individual therapy, drug rehabilitation programs, drug/alcohol testing and
parenting classes. Father also received
a bus pass. The social worker confirmed
that Father enrolled in parenting classes.
There was a discrepancy concerning Father’s participation in random drug
testing because Father was listed as a no show on one document. Another form indicated Father appeared for
the drug test. Father was given a
referral for individual therapy on January 27, 2012, however, Father did not
comply with the court order for individual therapy. On January 30, 2012, Father stated he had
completed four months of substance abuse and wanted to focus on the parenting
class and obtaining a job.
Father
had six visits with the child during January 2012. The caregivers observed that Father appeared
to be uncertain of how to relate to and bond with the child. Paternal Grandmother was present during all
the visits. The child was still
adjusting to Father and had not developed a healthy attachment to him. Father lacked the parenting skills and
confidence to appropriately care for the child.
The visits were “of fair quality,†however, it was “apparent†Father
needed more parenting education.
In
March 2012, the Department reported that Father was in partial compliance with
the case plan. Father had four negative
drug tests. The social worker encouraged
Father to enroll in another substance abuse program as well as Narcotics Anonymous
classes.
Father
visited consistently with the child, who generally cried for the first five to
ten minutes. She would then warm up to
Father and be comfortable in his presence.
Father was appropriate and attentive towards her needs. Father provided toys, food, coloring books
and a baby laptop. Father would draw and
play with the child. The child was
observed running up and hugging Father on occasions. Because the visits had only occurred for two
months, it was unclear how bonded the child was to Father.
Father
informed the social worker that he was currently planning to divorce a woman whom
he married in 2006 to assist her with her immigration status. Father stated that he never lived with the
woman.
The
Department assessed Father as willing and motivated towards reunifying with the
child. Although he was making progress
and was consistently visiting, the Department was concerned because Father was
absent for a majority of the child’s life.
Father appeared determined to learn new parenting skills and to bond
with the child. Father did not have
confidence and had not developed a healthy attachment with the child. The Department recommended continued
reunification services for Father and the child. On March 9, 2012, the juvenile court found
Father was in compliance with the case plan.
In
June 2012, the Department reported that since January 2012, Father had begun to
make steps towards addressing the case issues that required intervention in the
family. However, Father seemed to only
“be going through the motions†or what he called department “hoops.†Father was very resistant to doing individual
therapy. He stated he did not understand
why he needed to go. But, Father did
enroll in individual therapy on April 13, 2012.
Father’s attendance was consistent and punctual. Father was candid about his substance abuse
issues and was receptive to feedback.
Father appeared motivated to obtain custody of the child as he wanted to
be a positive influence in her life.
Father
enrolled in a drug rehabilitation program on March 5, 2012. Since January 26, 2012, Father had been
participating in a 26-week parenting class.
Father had been participating in drug testing with negative results for
all substances since March 8, 2012.
Father’s visits with the child were consistent. Father came prepared with snacks and toys. The child was no longer frightened of
Father. She would wave and smile when
she saw him. However, it did not appear
that the child had a strong attachment to Father. Father struggled on how to connect and relate
to the child. Father did not call her by
her name, rather, he called her “baby.â€
Father
became upset when the social worker told him that reunification services were
about him and the child and that the paternal grandparents could not be present
during all of the visits. Paternal
Grandmother claimed the Department would not let them see the “baby†even
though she had twice a month visits.
During one visit with the child on April 13, 2012, Father was disengaged
from the child. He watched the paternal
grandparents interact and play with the child.
The child only appeared to be engaged with Paternal Grandfather and she
did not seem comfortable with Father or Paternal Grandmother. Father said he wanted to step back so his
parents could spend some time with the child.
The
Department believed that the paternal grandparents were overly involved in
Father’s life. Paternal Grandmother
frequently spoke on Father’s behalf. It
appeared Father lacked assertiveness skills.
It was not clear whether Father was attempting to reunify with the child
for himself or for his parents. Father
deferred to his parents and allowed them to take charge. Father relinquished his parental authority
role to his parents. Paternal
Grandparents were in denial of Father’s substance abuse. Paternal Grandparents minimized Father’s long
history of selling and using marijuana by saying Father only used for a short
time. The Department was concerned about
this family dynamic because Father would be living with Paternal Grandparents,
who had a strong interest in protecting Father, possibly to the detriment of
the child.
The
Department noted that Father had previously failed to provide the child with
appropriate care, housing and supervision.
Father did not have a strong attachment with the child, which could
cause detriment to her emotional well-being.
The child had a strong bond with her caregivers and had thrived while
under their care.
The
Department identified adoption as the appropriate permanent plan for the
child. The prospective adoptive family (the
maternal grandparents) had an approved adoptive home study. Their home provided stability and was
appropriate for the child’s needs. The
child bonded to both Step-Maternal Grandmother and Maternal Grandfather. After the April 2011 disposition hearing,
Father did not begin to comply with the case plan until January 2012. Prior to that time, Father visited the child
only five times. Father did not call to
check on her or have visitation. Father
said he was struggling to get his life together and opted not to visit at all
because the caregiver made his visits so painful.
While
noting Father’s enrollment in parenting classes, the Department indicated he
lacked the parental skills needed to appropriately care for the child. The visits were of “fair quality†but Father
needed more parenting education. The
child was still adjusting to Father. It
did not appear that she had developed “a deep and meaningful attachment†to
Father.
In
May 2012, the Department conducted a risk assessment regarding the possibility
of reuniting the child with Father. The
risk level was “high†for future abuse/neglect.
Father did not have a healthy relationship with the child. Father also had a long history of substance
abuse as well as a history of not being involved with the child. The Department recommended that the juvenile
court terminate family reunification services for Father and set a permanent
plan hearing.
In
a last minute information for the court filed on June 4, 2012, the Department
reported Father was not complying with court orders. Father attended nine group
and missed seven sessions. Father
attended ten classes at Valley Family Center and missed seven classes. On May 25, 2012, Mother told the social
worker Father asked her if she wanted to go on a visit with him that day. Father was informed that his visits were only
for him and Father stated he understood.
The social worker later learned Father took the child to the Paternal
Grandparents’ home.
On
June 4, 2012, the juvenile court continued the matter for a contested hearing to
August 8, 2012. In a last minute information
for the court filed on August 8, 2012, the Department indicated that its
recommendation remained the same. On August
8, 2012, the juvenile court found the Department had made reasonable efforts to
enable the child to be safely returned home.
Father was in partial compliance with the case plan. But, the child could not be safely returned
to the custody of her parents and there was no substantial probability she
would be returned within six months. The
court ordered family reunification services terminated for Father and set the
matter for a permanent plan hearing on January 10, 2013.
On
December 14, 2012, Father filed a section 388 petition requesting the
juvenile court order the child returned to his care and custody. In the alternative, Father requested the
court reinstate his family reunification services. Father asserted the order should be made
because he had completed a 26-week parenting class and a six-month outpatient
substance abuse program with no absences.
Father also had tested clean and had consistently visited the
child. Father asserted it was in the
child’s best interests to be returned to his custody because they “are
extremely bonded.†Father “has shown
extreme dedication in completing his drug and parenting programs and has
applied that in his connection and parenting of [the child].â€
In
its section 366.26 report filed on December 20, 2012, the Department noted that
since November 2012, Father had unmonitored visits for about three hours twice
a week. Father had “become more
appropriate, nurturing and caring with [the child].†However, the Department continued to
recommend adoption as the permanent plan. The Department stated that the child’s
Maternal Grandparents were her caregivers.
They love the child and wanted to give her a stable and permanent home
with them. The child had resided in
their home since 2010. She was very
bonded to her maternal grandparents, who loved and cherished her. The adoption social worker stated: “There is no doubt their relationship is very
much based on adoration.â€
On
December 20, 2012, the juvenile court granted a hearing on the section 388
petition and set it for January 28, 2013.
In the event the petition was denied, the matter would be followed by a
contested section 366.26 hearing.
On
January 9, 2013, the Step-Maternal Grandmother and Maternal Grandfather filed a
request for de facto parent standing. The juvenile court granted the unopposed
request on January 22, 2013.
The
Department responded to Father’s section 388 petition on January 22, 2012.
The Department acknowledged that Father
was in full compliance with the case plan.
Father had completed the parenting classes, the substance abuse program,
participated in therapy and was motivated to remain clean and sober. The Department noted that the Maternal
Grandparents had done an excellent job of caring for and providing for the
child’s needs. But, based on Father’s
compliance and “dedication toward unifying with his child,†the Department
changed its recommendation to “the child be returned to father.†The Department stated it was in the child’s
best interests “because father and child are extremely bonded.†The Department recommended that the juvenile
court grant the section 388 petition and take the section 366.26 hearing off calendar.
On
January 28, 2013, the juvenile court held a hearing on the section 388 petition
and conducted the permanent plan hearing.
Father testified that he had unmonitored visits with the child since
November 2012. The visits were initially
for two hours and increased to three hours twice a week. They visited in the park or mall. Father wanted more time. Father had not had overnight visits.
Father
testified that he had “very limited contact†with Mother. He tried to support her efforts to get
sober. Father’s last contact with Mother
was about three weeks before the hearing by text message and face-to-face
contact. Father was recommending to
Mother the substance abuse programs he had completed. Mother contacted Father about a place to stay
and Father paid for a hotel room for Mother. It was late so Father “ended up falling asleep
there.†Mother and Father met at a
bowling alley near Mother’s house after the last court date. Mother wanted to discuss why she did not show
up for the hearing. Father and Mother
ended up talking in Mother’s car. Father
denied consuming alcohol during the conversation with Mother. Father had not consumed alcohol for “90 daysâ€
or “actually, 120 days.†Father
paid for Mother to have a drink at the bowling alley. Father could support the child but “a little
less elaborate†style than she was accustomed to.
Father
would abide by court orders concerning Mother’s visits with the child including
that he not act as monitor. Father was
willing to drug test. Father was still
in therapy and was involved in a 12-step sobriety program.
Mother
testified that she saw Father on November 30, 2102. They were at the hotel room and had “partiedâ€
on November 29, 2012. According to
Mother, they agreed to “meet up†and “get a hotel room.†The two had started getting together and
staying overnight “with each other in hotel rooms†since October 2012. Mother was currently using illegal substances
and Father knew that she was.
Mother
offered Father a “swig†of Coca-Cola and “Jim Beam†when they were in the car
at the bowling alley. Mother thought
Father was visibly under the influence of alcohol when she arrived at the
bowling alley. Father asked Mother to
move in with him as recently as January 5, 2013. More recently, Father had been texting Mother
not to contact him. The two of them were
not currently in a relationship.
Step-Maternal
Grandmother testified that Father tended to run late for the visits. He occasionally made up the time at the end
of the visit. The child was returned to
the caregiver well-cared for and happy.
The child was happy and loved everybody; everyone was her friend. She was happy to go to the park with
Father. The child separated easily from
him. The child seemed to be happy to
return home and did not cry when Father left.
When she needed comfort, the child turned to her maternal grandparents for
help in Father’s presence. Step-Maternal
Grandmother thought that on the child’s birthday in November 2012, Father was
under the influence of something when he arrived for his visit. She also thought that he was under the influence
on Memorial Day of 2012.
Father’s
attorney argued that the juvenile court should grant the section 388
petition. The Department’s counsel agreed
and asserted “at a minimum†the court should continue the matter or reinstate
family reunification services and/or grant a home of parent father order with
conditions.
The
child’s attorney requested that the section 388 petition be denied. Counsel asserted that Father had a substance
abuse problem which the juvenile court ordered him to address in April 2010. Father took 18 months to complete the programs;
but he did not timely resolve his issues concerning his newborn child. Counsel reminded the court that during the
child’s first year Father only visited three to five times and refused to
participate in programs. When Father
enrolled in a program after a year into the dependency proceeding, he still did
not visit. Father was still having
contact with Mother. And, there was
evidence Father was drinking. It was not
in the child’s best interest to grant the section 388 petition because it
would just delay her need for stability and permanence.
In
denying the petition, the juvenile court stated: “I can’t believe they graduated him from a
program with only 60 days of sobriety from alcohol. I can’t believe the department liberalized
him to unmonitored after two plus—after two years with only 90 days under
his belt from alcohol and not questioning the fact that the program gave him a
completion just two months into his sobriety.â€
The court further stated: “I
can’t figure out what’s going on with this worker. This worker has some major bias in favor of
this father. I don’t know what it’s
based upon or what it is.â€
Father
asserted parental rights should not be terminated because he had consistently
visited with unmonitored visits since November 2012. It was not in the child’s best interest to
have parental rights terminated because Father and the child were bonded and
close. The child’s counsel asked the
juvenile court to terminate parental rights as there was clear and convincing
evidence the child would be adopted and no exception applied. The child was just a friendly baby and
everyone was her friend.
The
juvenile court found by clear and convincing evidence return to the parents
would be detrimental. The child was
adoptable. Although Father had
maintained regular and consistent visitation and contact, the child looked for
comfort to her caregivers and not to Father.
The consistent visitation and contact, even if it conferred a parental
relationship, did not outweigh the benefits of permanence in adoption. The court then ordered parental rights
terminated. Father filed this timely
appeal.
I. The Section 388 Petition
Father
contends the juvenile court abused its discretion in denying his
section 388 petition. Section 388
provides in part: “(a)(1) Any parent or
other person having an interest in a child who is a dependent child of the
juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same action in which
the child was found to be a dependent child of the juvenile court . . . for
a hearing to change, modify, or set aside any order of court previously made or
to terminate the jurisdiction of the court. The petition shall be verified and . . . shall
set forth in concise language any change of circumstance or new evidence that
is alleged to require the change of order or termination of jurisdiction.â€
Section
388, subdivision (d) provides in part: “(d) If
it appears that the best interests of the child . . . may
be promoted by the proposed change of order, modification of reunification
services, custody, . . . termination of jurisdiction, . . . the
court shall order that a hearing be held and shall give prior notice, or cause
prior notice to be given, to the persons and in the manner prescribed by
Section 386, and, in those instances in which the manner of giving notice is
not prescribed by those sections, then in the manner the court prescribes.â€
We
must determine whether the juvenile court abused its discretion in determining
it was not in the child’s best interests to reopen Father’s reunification
services. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Because Father’s section 388 modification
petition was filed after reunification services were terminated and the section
366.26 selection and implementation hearing had been set, the focus of the
proceedings had shifted from Father’s interest in the care, custody and
companionship of the child to the child’s best interests. (In re
Stephanie M., supra, at p. 317;
Janee J. (1999) 74 Cal.App.4th 198, 211.) Furthermore, Father’s request for change must
be viewed in the context of the dependency proceedings as a whole. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309–310; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) The juvenile court’s focus at this stage of
the proceeding was on the child’s needs for permanency and stability. (In re
Zacharia D. (1993) 6 Cal.4th 435, 447; In
re Marilyn H., supra, at p. 309.)
The
juvenile court’s comments imply that Father was in the process of changing his
circumstances. The court commented that
Father’s completion of substance abuse program was fairly recent and not of a
very long duration. The court could not
believe the program would graduate Father with only 60 days of sobriety. The court was also skeptical of the Department’s
recommendation for not questioning the program and for liberalizing visits
given Father was only two months into sobriety.
Moreover,
the juvenile court acted within its discretion in determining Father did not
establish it was in the child’s best interests to reinstate Father’s reunification
services in January 2013. The child had been
a dependent of the court since she was approximately one week old in December 2010. The child never lived with Father who failed
to reunify with her. Rather, the child
had been living with her current caregivers since she was less than a week
old. Although the child appeared to be
happy when Father visited, the visits did not even begin happening until January
2012, well into the proceedings. The
child was described as friendly and happy with everyone. There was no indication the child was upset
when Father left. The child was happy to
return to her caregivers, from whom she sought comfort when she was upset.
Father’s
modification petition was heard on the date of a continued section 366.26
permanent plan hearing. The modification
request came after Father completed substance abuse programs, parenting
classes, complied with drug testing, and agreed to participate in individual
therapy. But, the modification petition
was filed 20 months after the juvenile court orders to complete the
programs. The modification was also
requested four months after family reunification services were terminated. “Childhood does not wait for the parent to
become adequate.†(In re Marilyn H., supra,
5 Cal.4th at p. 310.) A child’s best
interests and need for stability are not promoted by delays in the selection of
a permanent home for the child when there have been numerous failures to
reunify with the child. (
47; In re Edward H. (1996) 43
Cal.App.4th 584, 594.) The juvenile
court did not abuse its discretion by refusing to prolong the proceedings on
the basis of Father’s completion of court ordered programs so late in the
proceedings.
II. The Exception to Termination of Parental Rights
Father
does not claim the child was not adoptable.
Rather, Father claims the juvenile court committed reversible error in
failing to apply the exception to termination contained in section 366.26,
subdivision(c)(1)(B)(i). We note there
is some discrepancy between appellate courts as to the standard of review for a
determination as to whether an exception to termination of parental rights
applies sufficiency of the evidence or abuse of discretion. (Cf. In
re S.B. (2008) 164 Cal.App.4th 289, 297–298 and In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [the determination
of whether an exceptional circumstance exists is customarily challenged for
sufficiency of evidence] with In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 [abuse of discretion applied to
determination of whether parent-child exception existed] and
1031, 1038 [Indian child exception].)
Some courts apply a hybrid of the two standards. (In re
C.B. (2010) 190 Cal.App.4th 102, 122–123; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315.) Under this standard, the juvenile court has
discretion to resolve whether a statutory exception exists such that
termination of parental rights would be detrimental to an adoptable child. (In re
A.A. (2008) 167 Cal.App.4th 1292, 1322; In re
Jasmine D., supra, at p. 1342.)
However, the juvenile court’s pure factual findings are reviewed for
substantial evidence. (
Jasmine D., supra, at p.
1351.) Under either standard, there was
no reversible error in this case.
When
a child is likely to be adopted, the preferred permanent plan, at a section 366.26
hearing, is adoption. (
53; In re Jasmine D., supra, 78
Cal.App.4th at p. 1348.) The parent has
the burden under that circumstance to raise any relevant exception in the
juvenile court. (In re C.F. (2011) 193 Cal.App.4th 549, 553; In re Erik P. (2002) 104 Cal.App.4th 395, 402–403.) The party asserting an exception has the
burden of producing evidence showing it applies. (In re
Celine R., supra, at p. 61; In
re Bailey J., supra, 189 Cal.App.4th at p. 1314.)
Father
claims he established the exception by showing regular and consistent
visitation and that he and the child “are extremely bonded.†In determining whether the exception applies,
the juvenile court should consider: the
age of the child; the portion of the child’s life spent in the parent’s
custody; the positive and negative interaction between the parent and the
child; and the child’s particular needs.
(In re Jerome D. (2000) 84
Cal.App.4th 1200, 1206; In re Autumn H., supra, 27 Cal.App.4th at
p. 576; see also In re Amber M.
(2002) 103 Cal.App.4th 681, 689.)
“In
the context of the dependency scheme prescribed by the Legislature,
. . . the ‘benefit from continuing the [parent/child] relationship’
exception [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. 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. [¶] Interaction between natural parent and child
will always confer some incidental benefit to the child. 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. [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.â€
(In re Autumn H.,
Father
did not show he had a parental role as opposed to a mere friendship with the
child. (In re Brittany C. (1999)
76 Cal.App.4th 847, 854 [parents must show at least one biological parent
occupies a parental role rather than a friendship].) Rather, Father only showed frequent and
loving contact with pleasant visits, which did not establish a parental
role. (See In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108, 1109
[parents are required to establish more than “‘frequent and loving contact’†or
an “emotional bond†accompanied by pleasant visits but must show “‘parental
role’â€].) Father did not produce any
evidence that his relationship with the child had ever provided daily nurturing
indicative of a strong parent-child bond.
(In re Jamie R. (2001) 90
Cal.App.4th 766, 774.) Rather, the only
evidence of such a bond was with her caregivers.
The
child was over two years old when parental rights were terminated. She had been living in her prospective
adoptive family since she was about a week old.
The child’s happy visits with Father were not unusual because her caregivers
and daycare provider all described the child as friendly and happy. Father had never provided for the child’s
daily needs or care. The juvenile court
did not err in terminating parental rights given the absence of evidence showing
“the existence of such a strong and beneficial parent-child relationship†which
“outweighs the child’s need for a stable and permanent home.†(In re Casey D., supra, 70
Cal.App.4th at p. 51.)
>
The
order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
FERNS
We
concur:
____________________________,
Acting P. J.
ASHMANN-GERST
____________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All further
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
name="_ftn2" title="">* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
