In re K.F. CA4/2
Filed 6/4/13 In re K.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 K.F., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
B.S.,
Defendant
and Appellant.
E057579
(Super.Ct.No. RIJ119208)
OPINION
APPEAL
from the Superior Court
of
County. Matthew Perantoni, Judge. Affirmed.
Konrad
S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
B.S.,
defendant and appellant (hereafter father), appeals from the trial court’s
order under Welfare and Institutions Code section 366.26
seven-year-old daughter, K.F. Father
contends the so-called beneficial parental relationship exception to parental
rights termination applies in this case.
We disagree and, therefore, we will affirm.
The
facts are undisputed.
Services—Child Protective Services (CPS) filed a section 300 petition in
January 2010 with respect to then four-year-old K.F. after the child’s mother
overdosed on heroin and was found unconscious on the floor of the bathroom of
the maternal grandmother’s home. Father
had been living with the mother and K.F. in the maternal grandmother’s home
since November 2009 and identified himself at the
caretaker.
At
the detention hearing, the trial court detained K.F. only with respect to the
mother and left the child in the custody of father. Father and K.F. continued to live with the
maternal grandmother. On February 22, 2010, the trial court
conducted the combined jurisdiction and disposition hearing at which it ordered
reunification services for the mother
and family maintenance for father.
name="_ftnref2" title="">[2]
In
April 2010, CPS filed a supplemental
petition after father passed out in a fast food restaurant. He had four-year-old K.F. with him. When the police arrived, they discovered
father had outstanding arrest warrants and took him into custody. According to K.F.’s paternal grandfather,
father had a serious drug problem. The
trial court detained K.F., removed her from father’s custody, and placed her in
a foster home. At a jurisdiction hearing
in June, the trial court sustained the petition and ordered reunification
services and visitation for father.
At
the six-month review hearing on the first amended petition, in September 2010,
the trial court found that father’s progress toward reunification had been
unsatisfactory and ordered continued reunification services. According to the social worker’s report for
that review hearing, father had only one visit with K.F. between June and September 15, 2010, initially because
the social worker was unable to contact father in order to arrange a visit, and
later because father entered a residential drug treatment program. During their one visit, father was
appropriate with K.F. and she was affectionate with him. The social worker reported that K.F. was
thriving in foster care; she felt loved and safe in the foster home. K.F.’s caregivers were interested in adopting
her.
Father
made progress toward reunification with K.F. over the next six months. He consistently visited with K.F., who in
turn looked forward to his visits and was affectionate with him. At the 12-month review hearing on March 23,
2011, the trial court ordered six additional months of services for father, although
it terminated the mother’s reunification services. Father continued to progress. As a result, in July 2011, the trial court
authorized CPS to place K.F. with father and ordered family maintenance
services. That placement occurred on
September 12, 2011.
Father
was arrested on a parole violation for possession of firearms in January
2012. CPS returned K.F. to the care of
her foster family after removing the child from father’s custody and filed a
second supplemental dependency petition on January 31, 2012. The trial court sustained that petition on
March 14, 2012, and this time the court denied reunification services to
father. The trial court set a section
366.26 hearing for July 12, 2012.
After
several continuances, the trial court conducted the contested selection and
implementation hearing on November 9, 2012.
Father testified at that hearing, among other things, that he had not
visited K.F. since she was removed from his custody the second time, in March,
because he was concerned for her welfare.
Specifically, father said he had learned in parenting classes when
children go “through this multiple loss over and over that they can be
traumatized†and, as a result, might never bond with their caregiver. Father wanted K.F. “to have stability in her
life where she had been taken from her mother, taken from [father], given to
the foster people, taken from them, given back to [father], taken from [father]
and given to the foster people.â€
Father
testified that although “realistically†he knew this would be the outcome, he
nevertheless acknowledged that he had a special bond and relationship with
K.F. For that reason, father asked the
trial court not to terminate his parental rights and instead order guardianship
as the permanent plan for K.F.
The
trial court, after making the necessary findings, terminated father’s parental
rights and ordered adoption as the permanent plan.
Father
appeals from that order.
Father,
as noted previously, contends the trial court erred in terminating his parental
rights because the exception to termination under section 366.26, subdivision
(c)(1)(B)(i) applies in this case. We
disagree.
The
pertinent legal principles are well settled.
Once the court terminates reunification services, the focus of juvenile
of the child, and specifically on the need for a stable, permanent home. Therefore, adoption is the statutorily
preferred permanent plan for a dependent child.
If the court finds that the child is adoptable and is reasonably likely
to be adopted, the court must terminate parental rights and order the child
placed for adoption unless the court finds that one of the exceptions set out
in section 366.26, subdivision (c) applies.
(§ 366.26, subd. (c); In re
Celine R. (2003) 31 Cal.4th 45, 53.)
Under
section 366.26, subdivision (c)(1)(B), the court may decline to terminate
parental rights, even if it finds the child is adoptable and there is a
reasonable likelihood that the child will be adopted, if the court finds one of
several statutorily specified “compelling reason[s] for determining that
termination would be detrimental to the child.â€
The statutorily specified compelling reason, or exception, at issue here
is that “[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
parents have the burden of demonstrating that the so-called beneficial parental
relationship exception applies. (
1527.) In order to meet that burden, the
parents must demonstrate both that they have maintained regular visitation and
contact with the child, and that a continued parent-child relationship would
“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.
. . . 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.†(In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also
297.) “[T]he parent must show more than
frequent and loving contact, an emotional bond with the child, or pleasant visits. . . . The parent must prove he or she occupies a
parental role in the child’s life . . . .
[Citations.]†(
212, 229.)
“Since the proponent of
the exception bears the burden of producing evidence of the existence of a
beneficial parental or sibling relationship, which is a factual issue, the
substantial evidence standard of review is the appropriate one to apply to this
component of the juvenile court’s determination. Thus . . . a challenge to a juvenile court’s
finding that there is no beneficial relationship amounts to a contention that
the ‘undisputed facts lead to only one conclusion.’ [Citation.]
Unless the undisputed facts established the existence of a beneficial
parental or sibling relationship, a substantial evidence challenge to this
component of the juvenile court’s determination cannot succeed.†(In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
“The same is not true as
to the other component of these adoption exceptions. The other component of both the parental
relationship exception and the sibling relationship exception is the
requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that
termination would be detrimental.’ (§
366.26, subd. (c)(1)(B), italics added.)
A juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not
primarily a factual issue. It is,
instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance of the relationship in terms
of the detrimental impact that its severance can be expected to have on the
child and to weigh that against the benefit to the child of adoption. [Citation.]
Because this component of the juvenile court’s decision is
discretionary, the abuse of discretion standard of review applies.†(In re
Bailey J., supra, 189 Cal.App.4th
at p. 1315.)
Father concedes he did not have any contact with K.F.
after she was removed from his custody in January 2012. By the time of the November 2012 selection
and implementation hearing, K.F. had not had any contact with father for 11
months, or “nearly a year†as father candidly puts it. Father also acknowledges that this lapse in
contact with K.F. “[a]t first blush . . . would appear to be fatal to his
claim.†Nevertheless, he contends,
despite the near year-long gap, the evidence was sufficient to support a
finding on the “contact†requirement of the beneficial parental relationship
exception.
Father
cites the fact that “with the exception of a year,†K.F. purportedly had been in
his almost exclusive care since her birth in 2005 until her initial removal in
January 2011; he maintained regular visits with K.F. during the times she was
in foster care. According to father, by
the time of the section 366.26 hearing, K.F. was seven years old, and for six
of those years, “86 percent of the child’s life,†father had maintained contact
with K.F.
Father
did not maintain regular contact with K.F., his contrary claim
notwithstanding. As set out above, in
addition to the near year-long gap, father did not have contact with K.F. for
nearly four months after four-year-old K.F. was removed from his custody in
April 2010. According to the social
worker’s report for the section 366.26 hearing, father said he was “so
traumatized by [K.F.’s] removal from his care that he does not believe he could
see her without becoming extremely upset in her presence.â€
We
will not belabor the issue, however, because, even if we were to conclude father maintained regular
contact and visitation with K.F. despite the significant gaps in contact, we
nevertheless would conclude the evidence is insufficient to support a finding
under the beneficial parental relationship exception.
As previously discussed, “a
challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the ‘undisputed facts lead to only
one conclusion.’ [Citation.] Unless the undisputed facts established the
existence of a beneficial parental . . . relationship, a substantial evidence
challenge to this component of the juvenile court’s determination cannot
succeed.†(In re Bailey J., supra,
189 Cal.App.4th at p. 1314.)
According to the social
worker’s report, by the time of the section 366.26 hearing, K.F. was seven
years old. She referred to her foster
home as her “‘real home,’†and called her foster parents, “‘Mom and Dad.’†K.F told the social worker that she did not
want to return to her father’s custody; “she feels he is undependable.†K.F. also told the social worker that she
wanted to stay with her foster caregivers and be adopted by them.
These facts, which are
undisputed, do not compel a conclusion that severing K.F.’s relationship with
father “would deprive the child of a substantial, positive emotional attachment
such that the child would be greatly harmed.â€
(In re Autumn H.,
demonstrating the existence of facts to support a finding under the beneficial
parental relationship exception. Absent
such a showing by father, he cannot demonstrate that the relationship
constitutes a compelling reason
for determining that termination of father’s parental rights would be
detrimental to K.F. (§ 366.26, subd.
(c)(1)(B).) In short, the trial court
did not abuse its discretion by terminating father’s parental rights in this
case.
DISPOSITION
The order terminating father’s
parental rights with respect to K.F. is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We
concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory references are to the Welfare
and Institutions Code unless indicated otherwise.
name="_ftn2" title=""> [2] Mother is not a party to this appeal.
