In re M.S.

Filed 1/8/09 In re M.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

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J. S. (father) and M. L. (mother) (collectively, appellants), the parents of M. S. (the minor), appeal from the juvenile courts order terminating their parental rights. (Welf. & Inst. Code,  366.26, 395.)^[1] Appellants contend the juvenile court erred by failing to find an exception to adoption based on a beneficial parental relationship with the minor. Disagreeing with this contention, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2006, a juvenile dependency petition was filed concerning the three-week-old minor, who was born with a severe cleft palate and lip, requiring special feeding and care as well as surgeries. The petition alleged, in part, that appellants were homeless and that mother had a lengthy history with social services in another state concerning her five other children (none of whom were in her custody) for significant neglect, as well as her developmental delays, substance abuse and involvement in abusive relationships.

The minor was briefly released to appellants care while attempts were made to arrange a relative placement for her, but when this fell through, she was detained.

According to the jurisdiction/disposition report, father used marijuana regularly for his nerves and mother used methamphetamine until she found out she was pregnant. During visits with the minor, who was described as very fragile, appellants had problems responding appropriately to her and did not appear to be bonding with her.

In November 2006, the juvenile court sustained the allegations in the petition and ordered reunification services.

By the six-month review hearing, appellants were residing in a motel and mother was pregnant again. Mother did not interact well with the minor during visits, and although fathers interactions were more positive, he had been terminated from parenting classes and substance abuse counseling, and he continued to test positive for marijuana. Meanwhile, the minor was healing from surgery to repair her cleft palate, which would require future surgeries.

Although the social worker recommended termination of services, the juvenile court ordered additional services, increased visits to five times per week, and set the matter for a 12-month review hearing.

According to the report for the 12-month review, visits with appellants continued to be problematic at times in that they were frequently critical, frightened the child, were unable to gain behavioral control, and were unsuccessful at interacting or playing. During visits, the minor acted fussy most of the time, withdrawn, fearful, cried, and avoided interaction. There were numerous other concerns about appellants ability to properly care for and nurture the minor based on their behavior during visits , and according to the foster mother, the minor almost always react[ed] in a negative manner after visits.

Meanwhile, the minor continued to reside in the same foster home, where she was doing well and had bonded with her foster parents. Aside from her behavior at visits with appellants, she was described as very happy, energetic, and playful.

Following a contested hearing in December 2007, the juvenile court terminated reunification services, and the matter was set for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

According to the report for the section 366.26 hearing, the minors foster parents were committed to adopting her. An adoption assessment reported that the minor, who was developmentally delayed, had a strong bond with the foster parents. The minors visits with appellants, which now included her younger sibling, had been reduced to once a week and went fairly well, with diminished problems following visits. However, according to the adoption assessment, appellants did not respond consistently to the minors needs. Both the social worker and the adoption assessment recommended a permanent plan of adoption for the minor.

At the section 366.26 hearing, father testified that he regularly attended visits with the minor and he believed he had developed a relationship with her because she was happy when she saw him. He testified that mothers relationship with the minor was pretty much the same. He also felt the minor was bonded to her younger sibling. The paternal grandmother testified similarly, stating that the minor was always happy to see appellants. Mother testified that she, too, attended all of her visits with the minor unless one of them was ill.

Appellants urged the juvenile court to apply an exception to the preference for adoption based on the minors relationship with them and with her younger sibling. The court concluded neither exception applied, as there was no showing that the minor had a significant bond with her younger sibling or that she would suffer great harm if parental rights were terminated. Consequently, the court terminated parental rights and ordered a permanent plan of adoption.

DISCUSSION

Appellants contend the juvenile court erred by failing to find an exception to adoption based on their beneficial relationships with the minor. This claim is without merit.

At a hearing under section 366.26, if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless it finds a compelling reason for determining that termination would be detrimental based on one of several statutorily enumerated exceptions. ( 366.26, subd. (c)(1).) One such exception is 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 establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

[A] parent may not claim entitlement to the exception provided by subdivision (c)(1)[(B)(i)] simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (In re JasmineD. (2000) 78 Cal.App.4th 1339, 1349.) The benefit to the child must 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. 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In the present matter, there was no evidence the minor would suffer any serious detriment if contact with appellants were severed. To the contrary, the minor, who was normally happy and playful, reacted adversely both during and after daily visits with appellants. Although these problems diminished once visits were significantly reduced, the only evidence of any bond between the minor and appellants was testimony by father and the paternal grandmother that the minor was happy to see appellants at visits. Moreover, the minor had special medical and developmental needs, rendering stability and permanence even more imperative for her. Substantial evidence supports the juvenile courts conclusion that the evidence did not establish a substantial, positive, emotional attachment sufficiently compelling to derail adoption in favor of an alternative permanent plan.

Father argues that, based on his level of devotion and number of visits, it was reasonable to find . . . [the minor and his] attachment was significant. But the issue before us is whether the findings the juvenile court made were supported by substantial evidence, not whether the evidence could have supported alternate findings. In any event, while fathers devotion is commendable, the crux of the exception is whether the minor had developed a significant emotional attachment to him, not his attachment to her.

Father argues the statute does not require that he establish the minor would be greatly harmed if the relationship was severed, and that it should be adequate to establish a strong and beneficial relationship between the child and parent. Even if we were to accept this proposition, father claims only that the minor reacted positively to him, not that she had a strong bond with him. The juvenile court was warranted in concluding that this falls far short of a compelling reason for finding adoption would be detrimental to the minor. ( 366.26, subd. (c)(1).)

Similarly, mother argues that her interaction with the minor was mostly positive. In fact, little testimony was offered at the section 366.26 hearing regarding mothers relationship with the minor, and there was other evidence that her interaction with the minor during visits was minimal. The juvenile court was entitled to determine which evidence to credit.

Mother also contends that, by attending visits, she did what she could under the circumstances to act as the minors parent. But when assessing the benefit a child will gain by maintaining a parental relationship, the courts focus is on the needs of the child, not the parents efforts.

Mother complains that, as it is not feasible to develop a relationship with an infant such that he or she will be greatly harmed if parental rights are terminated, this cannot be what the legislature intended. She is incorrect. Because the inquiry at the section 366.26 hearing focuses exclusively on the child and his or her needs, it is not unusual that adoption will be appropriate despite the most exemplary of efforts by the parents to bond with a child.

Father cites In re S.B. (2008) 164 Cal.App.4th 289, 298, in which the juvenile court found that a six-year-old child (whose father had been her primary caregiver for three years) had an emotionally significant relationship with him, but declined to find an exception to adoption because the relationship was not parental. (Id. at pp. 296, 298.) The appellate court concluded it was error to decline to find the exception because the only reasonable inference is that [the child] would be greatly harmed by the loss of her significant, positive relationship with [her father]. [Citation.] (Id. at p. 301.)

Here, the juvenile court did not make any equivalent findings concerning appellants relationship with the minor, and substantial evidence supports a contrary finding -- that the relationship between appellants and the minor was not sufficient to merit a less permanent plan than adoption.

Father argues that the minors relationship with appellants should be preserved because [a]ll children have a fundamental independent right - an intrinsic human right, to their natural family relationships. The authority father relies on for this proposition is In re Marilyn H. (1993) 5 Cal.4th 295, 306, in which the California Supreme Court noted: [N]atural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] Marilyn H. does not support the preservation of parental ties at the expense of permanent homes for children who cannot be returned. To the contrary, the Supreme Court held that the states interest in protecting the welfare of children requires the court to concentrate its efforts on providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] (Id. at p. 307.)

Likewise, fathers reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530, is misplaced. In that case, the appellate court affirmed the juvenile courts finding that the beneficial parental relationship exception applied, noting that the juvenile court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children. (Id. at p. 1537.) The appellate court noted, further, that no evidence to the contrary was presented. (Ibid.)

In the present matter, on the other hand, the issue is whether substantial evidence supports the courts finding that the exception to adoption did not apply. As already discussed, based on the evidence before it, the juvenile court was entitled to conclude that the minors bond with appellants was not so strong that that she would suffer significant detriment if the relationships were severed.

Citing In re Amber M. (2002) 103 Cal.App.4th 681, father argues the juvenile court, here, did not consider the long-term effect of terminating parental rights. In Amber M., however, the two older children, who were four and seven years old when the section 366.26 hearing took place, had a strong primary bond with their mother and expressed that they missed her. (Id. at p. 690.) No such bond was present here.

Father argues that the benefit to the minor of being in a secure, committed placement would be met with a permanent plan of guardianship because the minor had already established a secure bond with her foster family. But [t]he Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. [Citation.] A guardianship is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature. [Citation.] (In re Teneka W. (1995) 37 Cal.App.4th 721, 728.) On the record before it, the juvenile court, here, was entitled to conclude that only adoption, as the preferred disposition, would promote the best interests of the minor.

Father notes that, with a permanent plan of guardianship, the minor could continue to visit her younger sibling. But, as father does not contend on appeal that the minors relationship with her sibling was sufficient to constitute an independent exception to adoption (see  366.26, subd. (c)(1)(B)(v)), it cannot form the basis for an exception based on a beneficial parental relationship.

Finally, mother complains about the circumstances leading to jurisdiction and, ultimately, to the termination of reunification efforts, suggesting that it is unfair to terminate parental rights when appellants were unfairly denied custody of [the minor] based upon their economic and educational status. Mother was required to seek timely review of any objections to the jurisdictional and dispositional findings and orders and the termination of services. Such claims ordinarily are not cognizable on appeal from the termination of parental rights.^[2]

In sum, we conclude the juvenile court did not err in declining to find an exception to adoption based on a beneficial parental relationship.

DISPOSITION

The juvenile courts orders are affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P. J.

SIMS , J.

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^[1]Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

^[2] In the conclusion section of her brief, mother urge[s] [this court] to remand the matter with instructions for the juvenile court to conduct a hearing to address whether or not based upon facts and circumstances as they exist at this time, there exist legally sufficient grounds to find it would be detrimental to return [(the minor) to appellant], recognizing that poverty is not such a ground. As mother failed to properly brief this claim under a separate heading, we decline to address it. We note, however, that in the cases she cites, the only reason the children were not returned to the parents custody prior to the termination of services was the lack of appropriate housing, whereas appellants problems included an inability to properly interact with and care for the minor. (In re P.C. (2008) 165 Cal.App.4th 98, 105; In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212.)