In re H.C.

Filed 2/28/08 In re H.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsels, for Plaintiff and Respondent.

No appearance for Minor.

Scott C. appeals from an order terminating his parental rights pursuant to Welfare and Institutions Code section 366.26.[1] He argues the juvenile court should have applied the benefit exception. ( 366.26, subd. (c)(1)(B)(i).) We disagree and affirm.

FACTS

In August 2004, H. was born prematurely because her mother had taken methamphetamine to induce miscarriage. A month later, the Orange County Social Services Agency (SSA) took the child into protective custody and filed a petition alleging both her parents had failed to protect her from serious harm, her mother by taking the drugs and her father by allowing the mother to take them while pregnant. ( 300, subd. (b).)

At the September 2004 jurisdiction/disposition hearing, SSA reported Scott had a criminal record stretching back nearly 20 years. It included felony convictions for aggravated assault, assault with force likely to produce great bodily harm, possession of a controlled substance, and transportation of a controlled substance. There were also misdemeanor convictions for possession of controlled substance, possession of controlled substance paraphernalia, failure to report for a work release program, assault, and battery.

Scott was enrolled in a drug treatment program, but his counselor told a social worker he finds Mr. C. to be insincere in his recovery. . . . Mr. C. does not take his recovery as seriously as he should and . . . has not learned from his relapse.

The juvenile court sustained the petition, declared H. a dependent child, and ordered reunification services. The initial case plan for Scott required that he complete a parenting class and a drug treatment program approved by SSA, submit to drug testing, and participate in Narcotics Anonymous or Alcoholics anonymous. H. was placed with her maternal grandmother, aunt, and uncle, and Scott was given 2 one-hour visits per week.

In May 2005, Scott told a social worker that he no longer wished to be involved in reunification services and did not wish to pursue custody of the child. Several weeks later, Scott changed his mind. At his request, visitation was moved to SSAs offices because he did not like the caretakers monitoring his visits.

The six-month review was held in August 2005. SSA reported that during the first few months of visiting, Scott seemed impatient with H. He did not participate in any parental duties, such as feeding, bathing, or changing her, nor inquire about her health. After a social worker explained how Scott was supposed to behave, he began interacting with H. more and visiting regularly. SSA also reported Scott had completed a substance abuse recovery program, but not one it had approved. According to a final report from the program, Scott had tested positive for methamphetamine twice and denied he had relapsed. He also had participated in a drug patch program, but

on three occasions negative drug test patches were deemed unreliable because the patches were compromised. (Each patch represented one week of drug testing.) SSA recommended terminating services because Scott had failed to make significant progress in dealing with his drug problem.

At the selection and implementation in June 2007, SSA reported that Scotts visits have gone well. He acted appropriately and played with H., but she seemed to be afraid of him for the first 10-15 minutes of each visit. The childs mother was present for many of the visits. On these occasions, even after H. became comfortable with Scott, she would look to the mother for direction or go to the mother while playing. H.s mother testified that during Scotts visits, H. called him Daddy, hugged and kissed him goodbye at the end of their visit, and kind of [held] on to him until someone guided her to the car. The assigned social worker also testified. He said that during Scotts visits, he interacts with her, talks to her, maybe plays with a toy with her, watches TV, interacts with the child and the mother together. At the end of the visits, H. doesnt really have a reaction. After a hug and a goodbye from Scott and the mother, H. pretty willingly gets into the car with the caretakers. SSA recommended terminating the rights of both parents, because neither have demonstrated a significant parental relationship that would be detrimental to terminate.

Scott did not testify but made a statement to the court. He said the bond that me and my daughter do have, theres nothing like it in the world. . . . [E]very time that were together its, like, joy. . . . [I]m just asking the court to . . . look at you know, we do have a bond.

The juvenile court found the benefit exception did not apply, terminated parental rights, and freed H. for adoption. It explained H. had never been cared for by her parents. She had been cared for her entire life by an aunt and uncle, and called the aunt Mom. The kind of relationship. . . that would prevent the court from terminating parental rights is one which . . . would have to be so strong that the child would be greatly harmed if parental rights were terminated. [Here,] [t]o the contrary, the child is more likely to be overwhelmingly harmed if anything would affect the current placement because . . . [t]his child has overcome . . . a tremendous deficit because of the parenting the child received where the child has been living. Will there be some loss if the court terminates parental rights? Of course. In most cases theres always some loss. . . . [But] the loss does not outweigh the need for permanency in this childs life. The court found Scott had maintained regular and consistent visitation but he failed to show the benefit of continuing the parental relationship outweighed the advantages of a permanent, stable adoptive home.

DISCUSSION

Scott argues he visited regularly and H. would benefit more from continuing the parental relationship than from a new adoptive home. The trial court disagreed on the second point, and we see no basis for questioning that disagreement.

The benefit exception applies when the 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) [formerly subd. (c)(1)(a), renumbered in 2007 amendment (Stats. 2007, ch. 583, 28.5 (S.B 703))].) In deciding whether a child would benefit from continuing the parental relationship, 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.)

Here, while Scotts visitation is commendable, it is not the only factor that must be considered. Also required is a showing the child would benefit from continuing the parental relationship, and it was not made. The evidence before us supports the finding that H. would not benefit from continuing the parental relationship with Scott. Look as we may, there simply is no evidence that H. had a substantial, positive emotional attachment to Scott, nor that she would be greatly harmed by terminating parental rights. The juvenile court made the only possible call on the evidence presented to it.

Scott argues he had a positive effect on H. because she enjoyed visits where he interacted with his daughter, talked and played with her, and fed her. He points out she called him Daddy. Without downplaying this positive contact, the most it shows is H. considered Scott a friendly visitor, which is not enough to satisfy the benefit exception. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.)

Scott also asserts H. appeared to be well bonded to him. But the record references for these assertions do not bear them out. The citations are to testimony by the assigned social worker and the childs mother, set out above. But neither said Scott was bonded with H. in fact, no evidence was offered on the specific issue whether there

was a bond between father and daughter. On this record, then, the only fair conclusion is Scott failed to show the benefit exception is applicable.

Since the juvenile courts decision was based on substantial evidence, the order appealed from is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.