In re Jonathan H.
Filed 1/7/14 In re Jonathan H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Jonathan H. et al., Persons Coming
Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
J.D. et al.,
Defendants
and Appellants.
E059085
(Super.Ct.Nos.
J-232526 &
J232527)
O
P I N I O N
APPEAL from the
Patricia K.
Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant G.H.
Elizabeth C.
Alexander, under appointment by the Court of Appeal, for Defendant and
Appellant J.D.
Jean-Rene Basle, County
Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant G.H. (Mother) appeals from an order
terminating her parental rights concerning her children, Jonathan and
Jeremiah. Defendant and appellant J.D.
(Father), the presumed father of Jonathan, appeals from an order terminating
his parental rights as to Jonathan. (Jeremiah’s
father is not a party to this appeal.) The
orders were made at a hearing held pursuant to
366.26.
title="">[1] Mother and Father (the Parents) contend the
court erred by
failing to apply the beneficial parental relationship exception to terminating
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention (April 2010)
Jonathan was born in April 2010. Three days later, a social worker at the
plaintiff and respondent San Bernardino County Children and Family Services (CFS)
because of concerns about Jonathan’s well-being. The social worker reported that Mother said she
did not want Jonathan in the room with her and was unable to care for him. The social worker was also concerned that
Mother, who had a seizure disorder, was planning on driving the child home by
herself.
Mother was uncooperative with the CFS social worker
who responded to the referral. She
denied saying she was unable to care for Jonathan and demanded to be discharged
from the hospital and be allowed to take Jonathan with her. The social worker then arranged to detain
Jonathan and his two-year-old half brother, Jeremiah.
Two days later, CFS filed juvenile dependency
petitions under section 300 concerning Jonathan and Jeremiah. CFS made allegations under subdivision (b) of
section 300 (failure to protect) based on Mother’s inability to care for the
children due to her seizure disorder and mental health issues, Mother’s history
of substance abuse, and Mother’s history of domestic violence. On May 20, 2010, CFS
filed amended petitions that added allegations regarding the children’s
respective fathers. Relevant here is the
allegation that Father had a history of domestic violence, which placed
Jonathan at risk of physical and emotional abuse.
At a detention hearing, the court found a prima facie
case for jurisdiction under section 300 and placed the children in the
temporary custody of CFS. The court
ordered visits between Mother and the children to take place at least once each
week.
B. Jurisdiction and Disposition (May 2010)
Following the
initial detention of the children, a social worker met with Mother. Mother denied saying she could not take care
of Jonathan and believed her children had been taken from her for no
reason. She said she used to smoke marijuana
when she was 16 and 17 years old (she was 24 years old at the time of the
social worker’s interview), and denied any current drug use or mental health
issues. The social worker noted that
medical records indicated Mother used cocaine in 2006, “crystal meth†in 2004,
and marijuana in 2007.
Mother explained that her arrest on spousal battery
charges in 2009 arose from a fight with Father in which she defended
herself. It was not domestic violence, but
“just one adult hitting another.â€
Mother told the
social worker she had had a seizure disorder since she was 10 or 11 years old,
for which she took medication. Mother’s
medical records indicated she had been diagnosed with “Major Depression with
Psychosis†and “Impulse Control Disorder,†among other mental health
problems. She had also attempted suicide
on several occasions.
Father’s
whereabouts were unknown. The social
worker reported that Father “has a conviction for domestic abuse and has a history
of domestic violence.â€
During the one visit that had occurred during the period
covered by the jurisdictional/dispositional report, Mother “verbally attack[ed]â€
the foster parents for being late and accused them of taking her children away
from her. She remained hostile even
after the social worker intervened.
Eventually, Mother calmed down and was appropriate with the children.
In June 2010, the court found the allegations of the amended
dependency petitions true, except for the allegation regarding domestic abuse
by Father. The children were declared
dependents of the court and removed from the Parents. Reunification services were ordered for
Father and Mother.
C.
Six-month Review (June 2010 - February
2011)
In a status review
report prepared for the six-month review hearing (filed in December 2010), the
social worker reported the following regarding Mother: She had been diagnosed with numerous mental
and personality disorders; her “unstable personality†was evidenced by angry
and rude outbursts directed at social workers, CFS staff, and the foster mother;
on one occasion, she told a social worker that “she hopes something horrible
happens to one of her children one dayâ€; she “experiences seizures from time to
time, and when stressed could have up to ten in one dayâ€; she “has been for the
most part consistent with her therapy, her visitation, and with following
through with the psychiatric evaluation appointmentsâ€; over a five-month
period, she had six negative drug tests and “four no showsâ€; and she was
unemployed and had very limited support.
Regarding Father,
the social worker reported that he had been convicted of having sex with a
minor and was the subject of several referrals to child protective agencies
involving domestic violence. Father’s
therapist terminated therapy after an incident in which Father became angry and
argumentative toward the therapist. The
social worker also described incidents in which Father became confrontational
with her, and concluded that “he is not a person who has much control and the
anger management classes have done very little if anything to change this
behavior.â€
Mother had regular
supervised visits with the children. She
showed up accompanied by different men, which made the foster mother
uncomfortable. Visits were then moved to
CFS offices. Father also had regular
visits, but missed some visits because of his work schedule. Father “is very appropriate with [Jonathan]â€
and “very loving and attentive†toward him.
The children are
reportedly in good health, developmentally on target, and experiencing no
mental or emotional difficulties. They
are both comfortable and happy in their foster home.
CFS recommended
that reunification services be terminated as to both parents. Although Mother had participated in
reunification services, the social worker cited Mother’s chronic mental
illness, her seizure disorder, her personality disorder, the lack of a support
system, and her statements that she did not feel capable of caring for Jonathan
as reasons for believing the children could not be safely reunited with
Mother. The social worker’s greatest
concern regarding Father was his inability to control his anger and his history
of domestic violence. In addition, the
social worker cited Father’s transient lifestyle and the absence of a stable
home environment to support the poor prognosis for reunification.
In a February 2011
addendum report, CFS changed its recommendation regarding Mother to allow
services to continue for her. The change
was based on several facts. First,
Mother “has made great progress in her therapy.†The therapist indicated that Mother
demonstrated “a stable mood and insight into ways she can establish a stable
and safe environment for her children.â€
The improvement may be due to medication prescribed for Mother’s mental
health issues. Second, Mother had
visited the children regularly and “demonstrated to be a loving, patient and
concerned parent.†Mother attributed her
change to Mr. V., who the social worker described as Mother’s “support system,
her rock, the support that she never felt she had from any family memberâ€;
“Mother appears to be more at peace with all that is happening . . .
with [Mr. V.] at her side.†Third,
Mother had drug tested regularly, all with negative results. Fourth, Mother’s seizures had “decreased
immensely†due to reduced stress.
Finally, Mother had completed the majority of her case plan.
Regarding Father,
the social worker provided a long list of arrests and convictions that had not
been mentioned in prior reports. The
convictions included assault with a deadly weapon, battery of a spouse, sex
with a minor, assault with a firearm, and obstructing/resisting an
officer. Father was also the subject of
a restraining order obtained by a former spouse.
In February 2011,
the court found that the Parents had failed to participate regularly and make
substantive progress in their plans. It
ordered that the reunification plans remain in effect and set a further review
date.
D. Twelve-month Review (March 2011 - August 2011)
In August 2011, CFS
changed its recommendation again. This
time to return the children to Mother’s care under a family maintenance program. The recommendation was based on Mother’s completion
of her case plan, continuing improvement regarding her mental health and
seizure issues, progress in therapy, and “an excellent record of visitation
with her children.â€
Between May and
August 2011, Mother’s visits were increased and became less supervised. She began to have overnight visits in July
2011 and weekend visits in August 2011.
The social worker reported that Mother had “done very well with
accepting more and more responsibility of her children†and “interacts in a
nurturing way with her children and openly enjoys parenting them.†The social worker further noted that the
“children are bonding with their mother and respond to her voice and
direction.â€
The social worker
noted that Father’s visits with his son ended in April 2011. The following month he was arrested on multiple
felony charges, including resisting arrest and inflicting corporal injury on a
cohabitant. Because of Father’s history
of substance abuse, his “violent criminal lifestyle, and current
incarceration,†CFS continued to recommend the termination of services for
Father.
At a hearing held
in August 2011, the court ordered the children be placed with Mother with
family maintenance services. The
following month, the court terminated reunification services for Father.
E. Supplemental Dependency Petitions (September 2011 - December 2011)
The children lived
with Mother and Mr. V. for about three months.
Then, in November 2011, a social worker observed that Jonathan (then 18 months
old) had two red linear facial injuries, a small scab on his forehead, and two
small bruises on his right buttock. Mother
attributed the marks to the child falling down and bumping into things, or to
fights with his three-year-old brother. She
admitted spanking the children, but denied harming them. The social worker stated that the marks on
Jonathan “appeared non-accidental and were not adequately explained byâ€
Mother.
Mother told the social worker she was overwhelmed and
very “frustrated†with caring for Jonathan because the child had not yet bonded
to her. She had also missed counseling
and psychiatric appointments. At one
point, she requested the social worker remove Jonathan from her, but later said
she wanted both of her children. Eventually,
she agreed to turn over custody of both children to CFS.
CFS filed supplemental dependency petitions as to the
two children. Regarding Jonathan, CFS
alleged (as amended), under section 300, subdivision (b), that Mother used
inappropriate corporal punishment against Jonathan and that Jonathan suffered
physical harm due to Mother’s inability to adequately supervise and protect him. Regarding Jeremiah, CFS alleged under section
300, subdivision (j), that he would be at risk of “similar abuse†in Mother’s
care.
In November 2011, the court ordered that the children
be detained in foster care. Visitation
was to be one hour per week.
After Father’s release from jail in October 2011, he
consistently visited Jonathan. He was
appropriate during visits and cooperative with CFS. Mother attended one scheduled visit; she
missed two others due to a conflict with other appointments and transportation
problems.
In a jurisdictional/dispositional report, CFS
recommended that Mother not be given reunification services and that a hearing
pursuant to section 366.26 be set. According
to the social worker, the “non-accidental injuries to [Mother’s] one-year old
child indicate that [M]other failed to benefit from [reunification] services.â€
At a contested hearing held in February 2012, the
court found true the allegations of the supplemental petitions and removed the
children from Mother. The children’s
permanent plan was placement in foster care with a specific goal of returning
them to Mother. Although the court
terminated reunification services, it ordered that Mother be provided services
under the children’s permanent plan. The
court did not set a section 366.26 hearing at that time.
F.
Children Return to Mother’s Care Under
Family Maintenance (April 2012 - August 2012)
In April 2012, the
court ordered that Mother be allowed unsupervised and overnight visits with the
children.
In August 2012, CFS
recommended that the children be returned to Mother’s care under family
maintenance. The social worker reported
that Mother had participated in and benefitted from the services she had
received; her epilepsy had been controlled by medication; and she had stable
housing and income and was in a committed relationship with Mr. V.
Mother had
unsupervised and overnight visits with the children during June and July
2012. She was reportedly “becoming more
confident and competent with appropriate parenting skills.†Moreover, she “appears to be taking care of
the children well during her visits†and “responded appropriately during [a]
visit by taking Jeremiah to the hospital when he accidently got hurt by biting
himself when he fell.†She “is eager to
have her children returned to her custody.â€
The children reportedly looked forward to the visits.
CFS reported that
Father visited regularly with Jonathan and was attentive to and engaged with
him. Jonathan was familiar with Father
and appeared to enjoy his time with Father.
At a hearing in
August 2012, the court ordered the children be maintained in Mother’s
custody. The court declared the goal of
returning the children home to Mother had been successfully fulfilled.
G.
Second Supplemental Petition
(September 2012 - February 2013)
By September 2012,
Mother was pregnant with her third child and had to discontinue her seizure
medication.
title="">[2] In October 2012, she brought
the children to a CFS office and said she was unable and unwilling to provide
for their care. She said she was
experiencing health problems, including epileptic seizures, due to the stress
of caring for the children and participating in services. She signed a declaration consenting to give
up custody and to have the children placed for adoption.
The following day, when the social worker went to
Mother’s home to pick up the children’s clothes and belongings, Mother told the
social worker she did not want to continue visitation with the children because
it “would be emotionally difficult for both of them.†However, two days later, Mother said she
wanted to reunify with the children and to continue having visits.
CFS filed
supplemental petitions alleging that Mother “has severe medical and untreated
mental health problems, which have rendered her unable and unwilling to provide
adequate care and supervision for her children . . . .â€
In a jurisdictional/dispositional
report, the social worker reported that Father had maintained consistent
visitation with Jonathan. Father was
interactive and appropriate, and Jonathan enjoyed the visits.
Mother’s visits did
not go so well. She used a cell phone to
call her boyfriend during a visit and refused to hang up after the social
worker told her that calls during visits were not allowed. She spoke to Jeremiah about court and how her
boyfriend was going to take her away.
These comments and Mother’s argument with the social worker caused
Jeremiah to become distressed and to cry.
According to the social worker, Mother “has misdirected anger at CFS, is
inappropriately hostile, makes inappropriate comments upsetting to her son and
acts unstable in front of the children.â€
CFS recommended that Mother not be permitted any more visits because of
the detriment to the children.
In November 2012,
the court found the jurisdictional allegation true, terminated reunification
services, and set a hearing to be held under section 366.26. The court limited Mother’s visits to one per
month.
In January 2013,
the children were placed with prospective adoptive parents.
In February 2013,
Mother gave birth to her third child.
When a social worker served a detention warrant regarding the infant,
Mother told an accompanying police officer that a person who had recently been
on television news for killing police officers “had ‘the right idea to put cops
in their place’ and the deceased cops ‘got what they deserved’ and she wished
that the cop killer ‘had killed him . . . too.’†Mother also threatened to kill the social
worker. Such behavior, the social worker
stated, “is extremely inappropriate especially given that she has had anger
management classes.â€
H.
Section 388 Petitions and Section 366.26
Hearing (March 2013 - July 2013)
In a report
prepared in March 2013 for the section 366.26 hearing, the social worker
reported that Mother “has been compliant since†visits were reduced to once per
month. During visits in December 2012
and January 2013, Mother interacted appropriately and was engaged with the
children. The children were excited to
see Mother and enjoyed their time with her.
During the most recent visit, Jeremiah cried and clung to Mother, and
said he wanted to go home with Mother.
When Father was
having weekly visits with Jonathan, he rarely missed a visit and was always appropriate. Jonathan enjoyed the visits and was pleased
to see Father. However, the social
worker noted that Jonathan’s “attachment to his father [is] limited as he has
never lived with his father or spent more than a couple of hours with
him.†He did not act out or cry when the
visits were over.
Once-per-month
visits between Father and Jonathan began in December 2012. Jonathan enjoyed the December visit and
Father was appropriate. Father missed
the January 2013 visit because he was mistaken about the time. During the February 2013 visit, Father became
upset because Jonathan was not wearing a jacket Father had bought for him;
Father “had to be re-directed . . . not to curse in front of his
son.â€
According to the social worker, the prospective
adoptive parents and the children had developed a mutual attachment. The children were affectionate toward the
prospective adoptive parents, responded positively to them, and sought their
attention.
In March 2013, Mother filed a request to change court
order, commonly known as a section 388 petition. Mother requested the court to return custody
of the children to her under family maintenance or provide her with
reunification services.
In response to Mother’s section 388 petition, CFS
filed an “Interim Review Report.†CFS
recommended the court not grant Mother’s request. Among other concerns, the social worker
reported that Mother continued to suffer from seizure-related health problems
that impacted her ability to parent. According
to Mother’s doctors, “a major trigger for [Mother’s] seizures is stress, and
historically [Mother] has found it very stressful to parent young
children.†The social worker added that
“history has shown repeatedly that [Mother] cannot sustain her children in her
care without becoming overwhelmed.†Mother’s
psychiatrist told the social worker that Mother denied being depressed but had
demanded a prescription for anti-depressant medication. The psychiatrist described Mother as
“manipulative, hostile and angry,†and said “he ‘does not see improvement’ in
[M]other’s functioning.†The social
worker concluded that further services for Mother “are not going to eliminate
the risk and instability to the children . . . .†The court thereafter denied the petition.
Father filed two section 388 petitions; one in
January 2013 and one in April 2013. In
his first request, Father sought to have Jonathan placed with paternal
grandparents. In the second, Father
sought to have custody of Jonathan or to receive reunification services. The court denied these requests.
At the section
366.26 hearing, Mother testified about her visits with the children. She would play with them, feed them, watch
movies with them, and change Jonathan’s diaper.
When she had unsupervised weekend visits, she would also bathe and
clothe them and provide for their day-to-day care. During the most recent visits with the
children, Jeremiah (the older child) called Mother by her name. Previously, he had called her “‘Mommy.’†Jonathan still calls Mother “Mommy.†When the children first see her at visits,
they run toward her and hug her.
Jeremiah will ask when he will get to go home with Mother and will cry
at the end of visits.
Mother testified
that she has a bond with Jeremiah and explained that she can see and feel that
he loves her. She also believed she had
a bond with Jonathan because she had gained his trust. She added that Jonathan told her he wanted to
go home with her and to the park. At the
end of visits, he throws a fit and hides behind her, holding onto her so that
he cannot be taken away.
Father testified
that he began visits with Jonathan immediately upon being informed of the
child’s birth. He visited regularly for
about one year, until he was incarcerated.
When he was released from jail six months later, he began visiting
Jonathan again. He provided Jonathan
with food, toys, and clothes. Jonathan
knew him “as his daddy†and ran to him at visits. Other family members often come to the
visits. When visits were over, Jonathan
threw fits and cried.
Each parent (through counsel) argued that the court
should select a permanent plan of guardianship, rather than adoption, because
of the relationship and bond the Parents had with their respective children. The court rejected these arguments, selected
adoption as their permanent plan, and terminated Father’s and Mother’s parental
rights.
II.
ANALYSIS
The Parents contend
the court erred in failing to apply the beneficial parental relationship
exception to terminating parental rights set forth in section 366.26,
subdivision (c)(1)(B)(i).
At a section 366.26
hearing, the juvenile court determines a permanent plan of care for a dependent
child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53; In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by
the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “‘Only if adoption is not possible, or if
there are countervailing circumstances, or if it is not in the child’s best
interests are other, less permanent plans, such as guardianship or long-term
foster care considered.’
[Citation.]†(
“Once the court
determines the child is likely to be adopted, the burden shifts to the parent
to show that termination of parental rights would be detrimental to the child
under one of the exceptions listed in section 366.26, subdivision (c)(1).†(In re
S.B. (2008) 164 Cal.App.4th 289, 297.)
In this case, the Parents relied on the beneficial parental relationship
exception to adoption.
The beneficial parental
relationship exception applies when there is “a compelling reason for
determining that termination would be detrimental to the child†because the
parent has “maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i).) Here, CFS concedes that the Parents satisfied
the requirement of showing that they “maintained regular visitation and contact
with the child . . . .†(
We are therefore concerned only with whether the Parents established the
existence of a beneficial parental relationship and a compelling reason as to
how termination of the parental relationship would be detrimental to the
children.
To prove the existence of a beneficial parental
relationship, the “parent must do more than demonstrate ‘frequent and loving
contact[,]’ [citation] an emotional bond with the child, or that parent and
child find their visits pleasant.
[Citation.]†(
823, 827.) The parent must show that 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.†(
at p. 575.)
In reviewing challenges to a trial court’s decision
as to the applicability of the parental relationship exception, we will employ
the substantial evidence or abuse of discretion standards of review depending
on the nature of the challenge. (
1308, 1315-1316.) We will apply the substantial
evidence standard of review to evaluate the evidentiary showing with respect to
factual issues. (
determination of questions such as whether, given the existence of a beneficial
parental relationship, there is a compelling reason for determining that
termination of parental rights would be detrimental to the child “is a
quintessentially discretionary determination.†(In re
Scott B. (2010) 188 Cal.App.4th 452, 469.) We review such decisions for abuse of
discretion. (Ibid.) In the dependency
context, both standards call for a high degree of appellate court deference. (Ibid.;
In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1351.)
name="_ftnref5" title="">[5]
A. Mother’s Appeal
Mother asserts that
she was a parental figure in the children’s lives and “not merely a friendly
visitor.†She relies heavily on the fact
that CFS allowed increased visitation between Mother and the children,
including unsupervised, overnight, and weekend visits. She points out that during extended visits
she took on a parental role—she cooked meals, fed them, took them to
appointments, changed diapers, washed their clothes, and taught them to clean
their dishes and make their beds.
Mother’s factual points are supported by the record.
However, while the record indicates that Mother could
competently parent the children during visits, she had difficulty when they
were under her care for longer periods of time.
When the children were returned to her custody under family maintenance
in August 2011, she soon became overwhelmed and very frustrated caring for
Jonathan and used inappropriate corporal punishment against him. She was initially equivocal about whether she
wanted the children removed from her care, but eventually voluntarily turned
over custody to CFS.
In August 2012, after Mother showed increased
confidence and competence during visits, the children were again returned to
Mother’s custody with family maintenance services. However, just two months later, Mother
brought the children to a CFS office and voluntary relinquished custody because
of health problems brought about by the stress of caring for the children and
participating in services. The next day
she said she informed a social worker she did not want to continue visits with
the children. She changed her mind about
this two days later.
In her opening brief on appeal, Mother points to the
act of returning the children to CFS as an act of “self-sacrifice[],†in which
she “put her children’s self-interests ahead of her own . . . .†This is a plausible interpretation of the
events. It is also reasonable to
interpret the event as an acknowledgement by Mother of her inability to
adequately care for and parent the children on a long-term basis. Indeed, these interpretations are not
inconsistent. It may well have been in
the children’s best interest to have CFS take custody of the children because
Mother was unable to manage the responsibilities of being a parent to these
children.
Mother’s difficulty parenting for an extended period
of time was highlighted in CFS’s response to Mother’s section 388
petition. The social worker noted that
Mother’s seizures and health problems continued to impact her ability to
parent. According to Mother’s doctors, a
major trigger for the seizures is the stress of parenting young children. Because of these and other concerns, the
social worker concluded that an “attempt to return the children to [Mother] a
third time is just as likely to be unsuccessful as history has shown repeatedly
that [Mother] cannot sustain her children in her care without becoming
overwhelmed.â€
The record thus indicates that Mother twice turned over
custody of her children when the stress and frustration of parenting became too
much. Such actions, even if marked by
self-sacrifice and motivated by a desire to do what is best for the children, indicates
a fragile and uncertain parent/child bond.
This is further evidenced by Mother’s concerns about her ability to bond
effectively with Jonathan, which she expressed to a social worker four days
before she turned the children over to CFS in October 2012.
Even when a beneficial parental relationship exists, the
court “shall terminate parental rights†unless there is “a compelling reason
for determining that termination would be detrimental to the child . . . .â€
(§ 366.26, subd. (c)(1)(B).) Here, the court did not abuse its discretion
in determining there is no such compelling reason. Indeed, there is evidence that the transition
to adoption will be positive. According
to the social worker, the children and the prospective adoptive parents have
developed a mutual attachment. Both
children treat the prospective adoptive parents with affection and greet them
with hugs and kisses.
Mother points to her testimony and CFS reports that
the children looked forward to visits and wanted to go home with her after the
visits. During a recent visit, Jeremiah
cried and clung to Mother, saying he wanted to go home with her. However, in contrast with In re Scott B., supra, 188 Cal.App.4th 452, upon which Mother
places heavy reliance, there is no evidence that either child would suffer a
“serious emotional and developmental setback†if the parental relationship was
disrupted. (Id. at p. 472.) The child in
In re Scott B. was described as
having a “precarious emotional state,†a history of regressing and running away
when stressed, and likely to “have a meltdown if his usual frequent visitation
with Mother [did] not continue.†(
Significantly, a court-appointed special advocate in that case opined
“that it would be detrimental to [the child] for his relationship with Mother
to be disrupted.†(Ibid.) Here, by contrast,
there is no evidence that the termination of the parental relationship would
cause a “meltdown†in either of the children involved in this case; and the
social worker in this case expressly opined that termination of parental rights
would not be detrimental to the children.
Based on our review of the record, the juvenile court
could reasonably conclude that there was no compelling reason for determining
that terminating Mother’s parental relationship would be detrimental to the
children. Accordingly, we will affirm
the court’s order.
B. Father’s Appeal
In support of
Father’s argument that he had a beneficial parental relationship with Jonathan,
Father points to his near-perfect record of visitation with Jonathan,
interrupted only by six months of incarceration. He also relies on the social workers’
favorable descriptions of his behavior during visits, and evidence that
Jonathan enjoyed the visits. Father
brought food, clothes, and toys to the visits, as well as a dictionary to help
the child learn English. Paternal
relatives came to visits so that Jonathan would get to know his brothers, sisters,
and grandparents. He concludes that
“Father persevered in achieving consistent, loving visitation with Jonathan
despite a short incarceration and reduced visitation.†This is a fair summation of Father’s efforts.
However, as noted
above, courts have repeatedly stated that evidence of frequent and loving
contact is not sufficient to establish the existence of a beneficial parental
relationship. (See, e.g.,
635, 643; In re Bailey J., supra, 189
Cal.App.4th at pp. 1315-1316; In re Derek
W., supra, 73 Cal.App.4th at p. 827.)
Although such interaction “will always confer some incidental benefit to
the child†(Autumn H, supra, 27
Cal.App.4th at p. 575), the beneficial parental relationship exception to
adoption contemplates that the parent occupy a parental role in the child’s
life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) The court could reasonably conclude that
Father did not fulfill that role here.
Father never lived in the same household with Jonathan and never had
overnight visits with his child. As the
social worker noted in the report prepared for the section 366.26 hearing: “Jonathan knows [Father] and enjoys playing
toys or running around on the playground with him. Jonathan is pleased to see [Father], but his
attachment to [Father] [is] limited as he has never lived with [Father] or
spent more than a couple of hours with him.â€
Based on such descriptions regarding the relationship between Father and
Jonathan, the juvenile court could reasonably conclude that Father did not have
a parental role in Jonathan’s life and the relationship did not promote “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.†(See In
re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Moreover, there is
no showing on appeal that terminating Father’s parental rights would be
detrimental to Jonathan. The discussion
above regarding this issue as to Mother applies equally here. There is nothing in the record to suggest the
requisite detriment. Accordingly, we
affirm the court’s orders.
III.
DISPOSITION
The orders appealed
from are affirmed.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
KING
J.
We concur:
McKINSTER
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory
references are to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] Mother gave birth to her
third child in February 2013. That child
is the subject of separate dependency proceedings.
