In re A.H.

Filed 12/30/08 In re A.H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

John M. appeals from an order of the juvenile court terminating his parental rights to A. H. pursuant to Welfare and Institutions Code section 366.26.[1] He contends that the juvenile court did not have a proper basis for terminating his rights and erred in failing to find that the beneficial relationship to termination did not apply. We affirm.

Background

A.H. entered the dependency system at age three months in November 2005 when her mother, K., was arrested. K had been attempting to walk across the railroad tracks with A., who was in a stroller, and two young boys who K. was babysitting when one of the boys was struck by a train and killed. A. was placed in protective custody. At the time, A. and K. were living with A.'s paternal grandmother, appellant's mother. A. appeared to be healthy and to be receiving good care.

A section 300 petition was filed on behalf of A. that contained various allegations related to K.'s mental health and included an allegation that another child had been removed from her care. As to appellant, there were allegations that K. and appellant had mutual restraining orders and that appellant had some history of bi-polar disorder and depression.

In the jurisdiction report in December 2005, appellant requested that A. be placed with his mother. He said that he had "plans and goals that include attending school for 14 months at Wyo-Tech, which would then result in his being able to make $100,000 per year. He then planned on buying a home and getting his daughter at that time." He was renting a room and did not have a place in it for a crib.

In January 2006, the juvenile court found the allegations of the petition true and placed A. with appellant's aunt and uncle. Appellant was ordered to complete a parent orientation class and to participate in various counseling programs and drug testing.

In the March 2006 report, the social worker wrote that appellant was working full-time and planned to get his own apartment which would be big enough for him to live with A. His visits with A. were going well and, because he had such a long drive to Tracy to his aunt and uncle's home for the visits, they usually let him stay longer than an hour. All of appellant's drug tests had been negative, he had completed most of his "Nurturing Fathers" classes, and was making "steady progress" on his case plan.

In the June 2006 status review report, the social worker recommended that reunification services for both appellant and K. be terminated. Appellant had moved, had changed jobs, and was attending trade school. He had completed two parenting programs. Appellant had "made significant progress in counseling." The doctor working with appellant said that appellant "was conscientiously working with him on his anger management issues, and he appeared to be making progress." All of appellant's drug tests were negative. Appellant was concerned about the cost of drug treatment and counseling. The social worker advised him of the procedure for presenting documentation as to the cost and number of sessions and that "funding would be requested from DFCS on his behalf." Appellant told the social worker that "getting the paperwork would be too much trouble, and consequently it would be easier to pay for everything himself."

Because of some conflict with his aunt and uncle, appellant was visiting A. at the DFCS office and at a mall in Tracy. These visits were going well and appellant provided appropriate care for A. during them. At a September 2006 contested hearing, the juvenile court continued services for appellant, terminated services to K., and granted the aunt and uncle's application for de facto parent status.

In the January 2007 status review report, the social worker recommended that appellant be offered six more months of reunification services. Appellant was working full time for a hotel. The report said, "His net paychecks have been small due to his child support obligations, and he is thinking of finding another job for one day a week in order to increase his net income." Appellant's therapist reported that appellant was doing well and was highly motivated. All of his drug tests were negative. Appellant was visiting A. in Tracy once a week, rather than twice a week, because he had "been unable to fit a second visit into his schedule due to his full-time job as well as the classes and programs he [had] been attending." Funding had been approved to help with appellants travel expenses to Tracy. A request for funding for appellant's weekly counseling expenses was denied because there were "currently no DFCS funds available to pay for adult counseling." The juvenile court continued reunification services for appellant.

During a February office visit, appellant asked whether he could have A. returned to him in May, "then have her stay in foster care for the next one to two years while he gets on his feet financially. It was explained to him that at A[.]'s age, the only allowable permanent plan would be adoption, and he would need to continue working to get her back if he does not want her to be adopted. . . . [Appellant] stated that he had been thinking lately about what is best for A[.], and he thought he might not be able to take care of her financially. He also said he wants to go to school to get training for a better-paying job, and he did not think he could do that while providing for A[.]. [Appellant] talked about wanting A[.] to grow up knowing who he is, and he said he does not want A[.] calling anyone else dad. He reiterated his worry about being able to support A[.] financially saying that he grew up in financially limited circumstances, and he does not want A[.] to grow up under the same circumstances. He stated that in every other way, besides financially, he is capable of raising A[.]"

In March, appellant had called the social worker and "complained that the [social worker] has always been against him, and that he is being asked to do a lot of things which cost money when he has to earn a living and save up money. He stated that the [social worker] had been heartless with him, and he complained that she would not allow guardianship, which was something he had requested be done with the relative caretakers when he thought he would not be able to take care of A[.] if she were to be placed with him in May." Also in March, appellant "complained that he would not be getting his daughter back, because [the aunt and uncle] are upper class while he is lower class. It was explained to him that the socio-economic issue is his perception, but in actuality it is not a deciding factor in whether or not he reunifies. [Appellant] was told that whether or not he gets his daughter back will be based solely on safety factors."

The May 2007 status review report said that appellant was living in San Jose and commuting to his job in San Ramon. He shared a two-bedroom apartment with a roommate. Appellant's therapist described him as cooperative and hard working. Appellant was not attending counseling on a weekly basis because he could not always afford the therapist's hourly fee and there was still no DFCS funding available. All of appellant's drug tests were negative. Appellant had been having unsupervised visits with A. since January 2007, and those visits had gone well. The social worker recommended that A. be returned to appellant with a family maintenance program. She wrote, "Based on his income, [appellant] would not be able to afford the cost of childcare on his own." She gave him the phone numbers of some organizations that provide subsidized child care. The social worker noted that although appellant's anger management issues had decreased, she was concerned that "he might lose his daycare if he expressed his anger inappropriately to a daycare provider."

In June 2007, the juvenile court returned A. to appellant with family maintenance services and a 30-day transition plan was developed. By July 2007, A. was still living with appellant's aunt and uncle. The uncle's company was transferring him to Los Angeles and the uncle, aunt and their two daughters planned to move in mid-August. In mid-July, counsel for A. filed a section 388 petition to terminate family maintenance and set a section 366.26 hearing. The petition stated that A. was two years old and had lived with the aunt and uncle for three quarters of her life and was very bonded to them.

An August 2007 report said that appellant had found a room to rent in Rio Vista. Appellant had also found a woman in Rio Vista to babysit for A. Although appellant was on a waiting list for subsidized child care, he would not qualify for aid from Santa Clara County because he was living and working in Solano County. He was having full day visits with A. and those were going well. Appellant still had to complete a medication review for which he was to pay $190. The social worker wrote, "Even though the [social worker] cannot tell [appellant] where to live, she is more nervous about the child's safety given how close he will be living to his mother who does have a criminal history and a history with her three younger sons in CWS." The social worker was also concerned because appellant's mother "asked whether they can do whatever they want to with A[.] in regards to her living situation and babysitting once her Family Maintenance case is closed." The juvenile court denied the section 388 petition and ordered that appellant could continue to have A[.] in his care under the family maintenance plan.

A November 2007 report recommended that appellant receive another six months of family maintenance services. A. was living with appellant in Rio Vista and they had moved into the home of her babysitter. Appellant had taken a week off of work when A. first moved in with him to ease the adjustment and another week off when she was ill. Following some unannounced visits, the social worker found A. to be happy and well adjusted. Appellant planned to continue to see his therapist and thought that he might have some extra money now that child support was no longer being deducted from his paycheck. The social worker wrote, "Despite how well she is doing, though, the [social worker] feels it is too early to dismiss her case. [Appellant] has lived in three different places since July, and it is hard to know, since [appellant] is the one reporting why he has to move, whether he is having problems getting along with the people he lives with, has not been paying the rent, or genuinely has to move for reasons out of his control." The social worker was still concerned that appellant planned to rely on his mother for child care once the case was closed. In late November, the juvenile court continued family maintenance services for six months.

On December 17, 2007, the Department filed a section 387 supplemental petition. The petition alleged that A. had been placed in protective custody "due to a failed family maintenance placement." It alleged that "the father voluntarily relinquished custody of the child and placed her with her paternal great aunt and uncle" and that "the Father admitted he was not equipped to provide adequate care for his child." The January 2008 jurisdiction/disposition report prepared for this supplemental petition said, "Parenthood went relatively well for [appellant] during August, September, and most of October as he had plenty of support from his roommate and babysitter. He also had support from his mother, who although not living with him, would invite her son and A[.] over to dinner three or four nights a week. Things began to unravel, though, in October when [appellant]'s support began to dissolve."

The report described problems that developed between appellant and his roommate which prompted him to move in with his babysitter. The social worker also reported that she had heard that appellant had not paid rent to this roommate. In November, appellant told the social worker that there had been problems with the babysitter as well. He was not sure that she was taking proper care of A. and he owed her money for October and November. The babysitter told the social worker that she was concerned that A. was not getting enough to eat on the days appellant cared for her. However, the social worker reported that when she and another social worker had made home visits, A. looked healthy, did not appear to be losing weight, and did not appear to be hungry. The babysitter also said that appellant owed her money for rent and that even if appellant could receive funding for his current babysitting needs from DFCS, she was not interested in continuing to babysit for appellant until he paid his past due amount. The babysitter said that she had given appellant a reduced rate, and that she "felt taken advantage of when she noticed [appellant] getting $100-$300 tattoos, buying matching Sharks jerseys for himself and A[.], and taking his friends to Sharks games."

After appellant left the babysitter's home, he and A. moved in with his mother. Appellant knew that the social worker had previously expressed concern about his mother's suitability due to "the volatile relationship he has had with her apart from her criminal history and CPS history with his two younger brothers." However, when the social worker checked on them, A. appeared to be doing well.

In December, appellant called the social worker to say that his mother had "flipped out and slapped his face." His mother wanted him to pay rent, which he could not do until he got paid. Appellant moved again. A social worker visited appellant in his apartment and found A. healthy and happy. Appellant said that he had taken time off work after he lost his babysitter and his room. He had arranged for his brother to babysit for him, but his brother had declined to do so after appellant's fight with his mother.

Appellant told the social worker that "he wanted A[.] to have a stable living environment, which he could not provide her with at that time. He also wanted her to have a family, which he felt she no longer had with his mother and brothers turning against him." Appellant said that he wanted A. to go back with his aunt and uncle, and his aunt came and picked A. up the next day. Appellant said that although he had requested that A. be placed back with his aunt and uncle, "he would prefer guardianship over adoption, because he wants to remain A[.]'s legal father." The social worker said that she did not plan to recommend guardianship because A. "deserves the most permanent and secure long-term plan, which would be adoption."

The January report on the supplemental petition said that appellant appeared to be having difficulty managing his money and noted that when the social worker, attempting to request financial assistance for appellant, sent in his paycheck stubs to do so, appellant "was denied financial assistance as it was deemed that his monthly net income was more than enough to pay rent and daycare, and since he had not been paying his bills, his money was being misspent." The report said that appellant's "inability to manage his money also lead to instability in the living situation of himself and A[.]" The report said that appellant had completed his case plan and that although "he has trouble getting along with other people and controlling his temper, there is no indication that he mistreated A[.] or lost his temper with her. Fortunately for A[.], [appellant] loves her enough to be able to relinquish her when he realized he could not give her the type of home environment that he thought would be beneficial for her."

At the January 7, 2008, hearing on the supplemental petition, appellant appeared, signed a waiver of rights, and submitted the petition on the basis of the social worker's report. The juvenile court sustained the section 387 petition. The court found that there was clear and convincing evidence that A.'s welfare required that she be taken from appellant's physical custody and that appellant was "unwilling to have physical custody of the minor, and . . . [had] been notified that if the child remains out of [his] physical custody for the period specified in section 366.26, the child may be declared permanently free from [his] custody and control." The juvenile court set the case for a section 366.26 hearing.

An April 2008 report requested that visitation between appellant and A. be changed from unsupervised to supervised. The report said that appellant's aunt reported that since A. had been returned to her care, A. had been displaying sexualized behaviors. The report did not suggest that appellant had harmed A., but observed that when appellant left her with various people to go to work one of them may have abused her. The report also noted that appellant had been upset and crying, but that "this was expected from a parent who was giving up a loved and cherished child." Because appellant was on probation for a vehicle related incident, the social worker felt that the only way to be sure that appellant was not driving with A. was to have his visits supervised. The juvenile court ordered that visitation be supervised.

The section 366.26 report noted that A. had lived with appellant's aunt and uncle for most of her life and that they were committed to adopting her. They were willing to allow appellant to visit A. eventually, but thought that current visitation might be confusing to her because she might think that she was going to live with him.

At the June 4, 2008, section 366.26 hearing, Social Worker Barbara Stuber testified as an expert in permanency planning for dependent children. She had been working on this case since February 2006. She said that A. had moved back with her aunt and uncle in December 2007 and that appellant had not had any visits with her since that move. Stuber described some problems A. had, such as speech delays and behavior problems, but said that A. was "cute," "loveable," and adoptable. A. was very bonded with her aunt and uncle and "doesn't really have a relationship" with her biological parents. Stuber did testify that when A. lived with appellant she had called him "Daddy."

Appellant testified and opposed the termination of his parental rights. He said that he and A. had "a solid relationship, a loving relationship. She's my best friend. . . . I did all I could to love her and care for her and just because I couldn't do it financially, I don't think I should be without her for life." He described his early efforts to provide for her and the loving, playful visits that he had with her. When A. was finally permitted to live with him she was with him for "a little less than five months." Appellant described his decision to not have A. live with him this way, "It was strictly financially [sic]. I couldn't afford to pay for daycare and because of my work schedule it was very difficult to find a daycare provider that opened that early. It was a decision strictly based on financial background."

Appellant testified that after A. left his care, "All I was simply told was was [sic] everybody was happy that I made the decision. I was happy. The social worker was happy. D.A. was happy, but I was given no visits." Describing his relationship with A. he said, "she was a loving daughter and I was a loving father and we both picked each other up when we needed it." Appellant was asked if he had any objection to A. staying with her aunt and uncle. He said "I think it's great that she has cousins to play with and she has a stable environment, a positive environment. And I'm all for that. I just really want to be a part of her life."

At the conclusion of the hearing, the juvenile court terminated appellant's parental rights and freed A. for adoption.

Discussion

Section 366.26

Appellant asks this court to reverse the juvenile court's order after the section 366.26 hearing because, "Poverty, homelessness and financial difficulty in affording child care are not a basis for terminating parental rights." Appellant relies on In re G.S.R. (2008) 159 Cal.App.4th 1202, and In re P.C. (2008) 165 Cal.App.4th 98.

In In re G.S.R., two boys were taken into the Department's custody after their mother was arrested. A few months later, the boys' father appeared in the proceedings. The father had a history of alcohol abuse and occasional drug use and had committed two acts of domestic violence. He had, however, completed a drug program and a domestic violence program. At the disposition hearing, he was declared a nonoffending parent and granted reunification services, but was unable to gain custody of the boys because he rented a room in a house that could not accommodate children. The father saw the boys nearly every day and was employed. Two years later, at the permanency planning hearing, the father was still employed. He saw his sons regularly but still had not secured appropriate housing. The record did not contain any reason for the father's inability to obtain suitable housing other than lack of available funds. The court terminated father's parental rights.

On appeal, the father argued that his due process rights had been violated because he was a nonoffending parent who had never been found to be unfit. (In re G.S.R., supra, 159 Cal.App.4th 1202, 1209.) The appellate court found that the juvenile court did not make a finding of parental fitness as to the children's father; rather the court's findings concerned only the children's mother. Further, the court found that all of the father's issues with domestic violence and substance abuse had been resolved prior to the filing of the original dependency petition, and that the only matter unresolved at the dispositional stage was the father's inability to afford appropriate housing. The court said, "The record strongly suggests the only reason [the father] did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons. But poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction. . . . [I]ndigency, by itself, does not make one an unfit parent and 'judges [and] social workers . . . have an obligation to guard against the influence of class and life style biases.' [Citation.]" (Id. at p. 1212.) "Under these circumstances, we determine [the father]'s due process rights were denied by DCFS' failure to demonstrate sufficient detriment and the juvenile court's failure to find a legitimate basis for deeming him unfit." (Id.at p. 1215.)

In In re P.C., the mother was found to have physically abused her children. At the time the petition was filed by the Department, the mother had been homeless for approximately three weeks. (In re P.C., supra, 165 Cal.App.4th 98, 100.) The children were placed with a prospective adoptive family and the mother had two hours per week of monitored visitation. At the time of the 18-month review hearing, the social services agency acknowledged that the only thing preventing the children from being returned to the mother's care was her failure to obtain suitable housing. Mother had not secured approved housing because she was living in a group home where a resident did not want to be live-scanned for the purpose of determining whether she had a criminal record. After a contested section 366.26 hearing, the juvenile court terminated mother's parental rights.

The mother appealed and the appellate court framed the issues as "May parental rights be terminated when the only current detriment to returning the children to mother's care and custody is her inability to obtain housing acceptable to SSA?" (In re P.C., supra, 165 Cal.App.4th 98, 103.) The court reversed the order, finding that mother had corrected all of the problems which had led to the juvenile court's assertion of jurisdiction over her children. It noted that the mother's failure to find suitable housing was not due to any fault on her part. Citing In re G.S.R., the court concluded that the mother's inability to find appropriate housing was inextricably tied to her poverty and the social services agency's failure to find alternative solutions and could not serve as a basis for terminating her parental rights. (In re P.C., supra, 165 Cal.App.4th at pp. 103-107.)

Here, appellant notes that he had completed his case plan and reunified with A. who appeared healthy and happy during unannounced visits from the social workers. He argues, "DFCS did not demonstrate a sufficient detriment, did not assist appellant with housing, did not offer assistance with child care until it was too late, and did not offer financial assistance to obtain a new child care provider. The court failed to find a legitimate basis for deeming appellant unfit." Respondent argues, "In this case, when the father requested A[.]'s removal, he was employed, he had housing, and he was unwilling to provide further care for A[.] . . . The G.S.R. father lacked housing, which was apparently the only barrier to his assuming care of his children. He was not unwilling to provide such care. That was not the case here."

"Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." (Santosky v. Kramer (1982) 455 U.S. 745, 747-748 [102 S.Ct. 1388]; In reGladys L. (2006) 141 Cal.App.4th 845, 848.) Under Santosky, due process requires proof of parental unfitness by clear and convincing evidence sometime before termination of parental rights, but not necessarily at the outset of the dependency proceeding when the court declares jurisdiction over the children. The California dependency scheme uses the term "detriment to the child" as the equivalent of Santosky's term "parental unfitness." (In re Cody W. (1994) 31 Cal.App.4th 221, 225, citing In re Jasmon O. (1994) 8 Cal.4th 398, 423.)

Here, A. was removed from appellant's custody pursuant to a section 387 petition triggered by appellant's relinquishment of A. When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent[s] . . . ." ( 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.) The juvenile court made such findings here.

Appellant argues that, as to the section 387 petition, his "admission of not being equipped to provide adequate care for A[.] was that he was poor, he had lost his babysitter, he did not have affordable child care, he was staying home from work to care for A[.], and he would be losing his job and apartment if he did not immediately return to work." Respondent argues, "To say that the father was poor and homeless is to mischaracterize and oversimplify his situation. . . . When the social worker sought financial assistance to help him pay for a deposit on an apartment, the Department deemed that he had sufficient income to cover his living expenses, but that his inability to manage his money created the instability in his living arrangements. . . . Not only did he mismanage his money, his outbursts of temper with the very people helping him led to bad feelings, difficulties in further communication with those people, and erosion of their continued support."

Unlike the father in G.S.R., appellant here was not a nonoffending parent who had never been found to be unfit. Unlike the mother in P.C., appellant's inability to find and keep appropriate housing was not inextricably tied to poverty. The juvenile court did not sustain the section 387 petition on the basis of "poverty, homelessness and financial difficulty in affording child care." Appellant was employed essentially throughout these proceedings and had enough income that he did not qualify for supplemental aid. Nor was appellant homeless, but it is difficult for a parent to provide his or her child with a stable living environment when one does not pay one's rent. Affordable child care is also hard to find, which is why a responsible parent must be sure to pay his or her babysitter before incurring discretionary expenses. The juvenile court, in sustaining of the section 387 petition, had before it clear and convincing evidence that there was a substantial danger to A. if she remained with appellant when he represented that his situation was too unstable to provide appropriate living and child care arrangements for her. Although appellant showed that he loved A. and she loved him, he apparently lacked the maturity and selflessness to make the other sacrifices and compromises necessary to care for a young child while employed. He demonstrated insight and a noble sense of responsibility in recognizing this and relinquishing A. The court's findings at the section 387 and section 366.26 hearings sufficiently comported with the requirements of due process to support the termination of his parental rights.[2]

Beneficial Relationship Exception

Appellant contends that "the judgment terminating parental rights must be reversed because the trial court erred in failing to find the section 366.26(c)(1)(B)(i) beneficial parent child relationship applicable."

Appellant does not challenge the juvenile court's finding that A. is adoptable. Once the court finds that a child is adoptable at a section 366.26 hearing, it must select adoption as the permanent plan; to that end, it must terminate parental rights. ( 366.26, subds. (b)(1), (c)(1).) This rule is subject to statutory exceptions, one of which is the beneficial relationship exception, which applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (366.26 , subd. (c)(1)(B)(i)).) The parent has the burden of proof that the beneficial relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)

The statutory exceptions to termination "must be considered in view of the legislative preference for adoption when reunification efforts have failed." (In re JasmineD. (2000) 78 Cal.App.4th 1339, 1348.) Thus, "a parent may not claim entitlement to the exception provided . . . simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Id. at p. 1349.) That is, the parent must show substantial benefit from the relationship and the prospect of great harm from its termination. As the court in In re Autumn H. (1994) 27 Cal.App.4th 567 explained, the juvenile court must decide whether the parental 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 to a new family would confer." (Id. at p. 575.) This determination is made on a case-by-case basis, taking into consideration all pertinent factors. (In re Jasmine D., supra,78 Cal.App.4th at p. 1350.)

In reviewing a juvenile court's ruling on the beneficial relationship exception, we apply the substantial evidence standard of review. (In re Autumn H., supra,27 Cal.App.4th at p. 576.) We do not reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)

Here, A. had spent most of her young life in the care of her prospective adoptive parents. Although we hope that they will recognize that appellant could have an important role in her life in the future, there was no evidence before the juvenile court at the section 366.26 hearing that A. would suffer great harm from the termination of appellant's legal parental relationship with her. Appellant, in relinquishing A., implicitly recognized that her placement with his uncle and aunt would confer the security and the sense of belonging to a family that he knew she needed and deserved. He is to be commended for his courage in doing so. Had A. been older, or in appellant's care longer, there might have been more evidence for appellant to muster to support his argument as to the exception to termination. However, based on this record, substantial evidence supported the trial court's ruling.[3]

Disposition

The order of the juvenile court is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P.J.

_____________________________

PREMO, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Thus, we do not reach appellant's alternative contention that he received ineffective assistance when counsel did not specifically argue that termination of his parental rights violated due process.

[3] Although it will be up to the trial court at the time of A.'s adoption to determine what would be in her best interest, this case would seem appropriate for a post adoption contact agreement (kinship adoption agreement) to permit continuing contact between appellant and A. (Fam. Code,  8616.5.)