In re F.G.

 

 

 

 

 

 

 

 

Filed 6/4/13  In re F.G. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 
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In re F.G. et al., a Person Coming Under the Juvenile Court Law.	H038919      (Santa Cruz County       Super. Ct. Nos. DP002612, DP002613)
SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,   Plaintiff and Respondent,   v.   C.G. et al.,   Defendants and Appellants.

            F.G.
(father) and C.G. (mother) appeal from a juvenile court judgment terminating
their parental rights and selecting adoption as the permanent plan (Welf. &
Inst. Code, § 366.26)href="#_ftn1"
name="_ftnref1" title="">[1]name=FN1> concerning their son, F.G. (born
2001), and daughter, S.G. (born 2003). 
Father challenges the evidence supporting the juvenile court’s rejection
of his evidence and argument that the case came with the exception to
termination described by section 366.26, subdivision (c)(1)(B)(i) (no
termination if termination would be detrimental to the child because the
parents maintained regular visitation and the child could benefit from
continuing the relationship).  Mother
agrees with father’s argument and asserts that we must reverse the judgment as
to her if we reverse the judgment as to father. 
We affirm the judgment.

legal background

            name="SDU_1">Section 366.26
sets forth the procedure for permanently terminating href="http://www.fearnotlaw.com/">parental rightsname="SDU_542"> concerning a child who has been
removed from parental custody and declared a dependent child of the juvenile
court.  The statute states that the court
shall terminate parental rights if it “determines . . . by a clear and
convincing standard, that it is likely the child will be adopted.”  (§ 366.26, subd. (c)(1).)  If the court determines it is likely the
child will be adopted, certain prior findings by the juvenile court (e.g., that
returning the child to the physical custody of the parent would create a
substantial risk of detriment to the physical or emotional well-being of the
child) shall constitute a sufficient basis for the termination of parental
rights unless the juvenile court finds one of six specified circumstances in
which termination would be name="citeas((Cite_as:_180_Cal.App.4th_1517,_*">detrimental.  (Ibid.)  The first of these circumstances states:  “The parents have maintained regular visitation
and contact with the child and the child would benefit from continuing the
relationship.”  (Id. subd.
(c)(1)(B)(i).)

factual background

In 1996, four older children had
been removed from father and mother’s custody and adopted.  The children at issue were born in Mexico,
and, after bringing them to the United States, father and mother hid the
children from the Santa Cruz County Human Services Department (Department), did
not enroll them in school, and later lied to the Department about the children’s
whereabouts.  The Department ultimately
placed the children in protective custody because “the children had suffered
medical and dental neglect, emotional damage, lack of educational opportunities
and they were not protected by the parents from physical harm, neglect and
domestic violence.”  The juvenile court
declared the children dependents and bypassed reunification services.  The Department placed the children with a
paternal aunt and uncle.  Father had
regular visitation; mother could not have contact because she was
incarcerated.  The Department ultimately
reported that the aunt and uncle were committed to adopting the children.  It recommended that the juvenile court terminate
parental rights and order adoption as the children’s permanent plan.  Father and mother contested the
recommendation at a section 366.26 hearing in which father, mother, and the
social worker testified.  We rely on and
appreciate the juvenile court’s lengthy oral decision, which includes a
succinct summary of the evidence that is relevant at this stage of the
proceedings.

            “They
needed everything.  Their basic needs
were not being met.  Their basic
educational needs, medical needs, dental needs, and their need for safety and
stability were not being met, sadly.  And
while the parents love them and that drove them to keep them from the world,
and also drove the children into exile and an existence where initially [son]
was pre 1st grade as a ten-year-old in his development.  The children were really pre, preschool in
their development and their basic learning skills. [¶] They’ve taken off.  They’re doing really well. [¶] In this case
the parents are asking me to evaluate the bond with the parents in order to
halt or hold back the stability that an adoptive home would provide.  If the Court finds the children to be
adoptable, which is the highest order of preference for permanency, the Court
must, must, not may, but must terminate the parental rights in order to provide
the children that highest level of permanency unless there is a compelling
reason for determining that termination of parental rights would be detrimental
to the children. [¶] And while the parents have through the facilitation of
other maintained regular contact with the parents [sic], those visitations are limited.  And the visitation--and while the natural
interaction between a natural parent and a child will always confer some
incidental benefit to a child . . . the relationship really arises from a
day-to-day interaction, companionship and shared experience . . . . [¶] And so
that relationship of a day-to-day interaction, companionship and shared
experience was a very narrow one with parents, as I said, living in an isolated
experience, hiding away from anybody that might take the children away. [¶] The
parent, either parent--neither parent, I should say, today has been able to
show a compelling reason to show the Court that they occupy such a parental
role that the emotional attachment is both positive and significant, and that
they are maintaining a parental role and taking care of the children’s needs in
this case.  The Court must under the
cases cited by County Counsel look at whether or not the benefit from
continuing the relationship promotes the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new adoptive parents.  The Court
therefore is balancing the strength and quality of the natural parent
relationship in a tenuous placement, meaning with legal guardianship with
parents, I’m not exactly sure what role they would even have. [¶] So looking at
balancing an ongoing relationship with the parents in a tenuous placement under
a legal guardianship against the security and sense of belonging in an adoptive
family is, in my opinion, unfortunately a simple choice for this Court to make.
[¶] The children need to look to the parents for physical care, nourishment,
comfort, affection, stimulation, safety. 
They aren’t able to.  They haven’t
been able to. [¶] . . . [¶] So, therefore, the Court is unable to find that the
burden has been proven by either parent that would justify a finding of a
compelling reason to set aside a stability that the adoption would provide for
the children.”

discussion

            name="sp_999_4">name=B112020728402>Father contends that “the findings and orders . . . was
[sic] unsupported by substantial
evidence” because he “established, with each child, a parent/child relationship
warranting preservation.”  Father’s
analysis is erroneous.

            name="SDU_5">name=B122020728402>“[T]he burden [of proof] is on the party seeking to establish the
existence of one of the section 366.26, subdivision (c)(1) exceptions to
produce that evidence.”  (In re Megan
S. (2002) 104 Cal.App.4th 247, 252.)

            name="______#HN;F13">To meet the burden of
proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must
show more than frequent and loving contact, an emotional bond with the child,
or pleasant visits--the parent must show that he or she occupies a parental
role in the life of the child.  (In re
Derek W. (1999) 73 Cal.App.4th 823, 827.)

            As is apparent from
the way father frames his contention, father is essentially urging that there
was insufficient evidence to support the juvenile court’s finding against his
position because evidence supports his position.  We see this type of presentation in
dependency cases too frequently and are constrained to offer the following.

            “We generally apply
the familiar substantial evidence test when the sufficiency of the evidence is
at issue on appeal. Under this test, ‘ “we are bound by the established rules
of appellate review that all factual matters will be viewed most favorably to
the prevailing party [citations] and in support of the judgment . . . .  ‘In brief, the appellate court ordinarily looks
only at the evidence supporting the successful party, and disregards the contrary showing.’  [Citation.] 
All conflicts, therefore, must be resolved in favor of the respondent.”
’  [Citation.]

“But
this test is typically implicated when a defendant contends that the plaintiff
succeeded at trial in spite of insufficient evidence.  In the case where the trier of fact has
expressly or implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, it is misleading to characterize
the failure-of-proof issue as whether name="SDU_546">substantial evidence supports the judgment.  This follows because such a characterization
is conceptually one that allows an attack on (1) the evidence supporting the
party who had no burden of proof, and (2) the trier of fact’s unassailable
conclusion that the party with the burden did not prove one or more elements of
the case (Oldenburg v. Sears,
Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is
the exclusive judge of the credibility of the evidence and can reject evidence
as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660
[trial court is entitled to reject in toto the testimony of a witness, even if
that testimony is uncontradicted]).

            name="______#HN;F14">“Thus, where the issue on
appeal turns on a failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the appellant as a
matter of law.  [Citations.]  Specifically, the question becomes whether
the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.’ ”  (In re
I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.)

            name="sp_999_6">Here, as in many dependency cases, the
case posed evidentiary conflicts.  And,
as is common in many dependency cases, this case obligated the juvenile court
to make highly subjective evaluations about competing, not necessarily
conflicting, evidence.  As reflected in
the juvenile court’s ruling, the juvenile court considered the conflicting,
competing evidence and essentially discounted father’s evidence in concluding
that father had failed to carry his burden of proof.  It is not our function to retry the
case.  We therefore decline father’s
implicit invitation to review the record so as to recount evidence that
supports his position with the object of reevaluating the conflicting,
competing evidence and revisiting the juvenile court’s failure-of-proof
conclusion.  This is simply not a case
where undisputed facts lead to only one conclusion.

            In short,
where, as here, the juvenile court’s ruling is against the party who had the
burden of proof, it is almost impossible for the party to prevail on appeal by
arguing that the evidence compels a ruling in his or her favor.

disposition

            The
judgment is affirmed.

 

 

 

 

                                                                       

Premo, J.

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

                                                                       

Rushing, P.J.

 

 

 

 

 

 

 

                                                                       

Elia, J.