In re N.H.

Filed 1/7/09 In re N.H. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn H. Mackel, Commissioner. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.

__________________________________

SUMMARY

A father appeals a judgment terminating his parental rights over his daughter. He contends the juvenile court erred by refusing to apply the beneficial relationship exception to termination of parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i).)[1] We find no error, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

N.H. and her half-brother, J.B., were detained in July 2006. N.H. was five years old at the time, and J.B. (who is not a subject of this appeal) was two years old. Respondent Department of Children and Family Services (DCFS) removed the children from their mothers care after receiving referrals regarding a history of domestic violence between the mother and J.B.s father, and the mothers neglect and incarceration.[2] A first amended petition was filed under section 300. The sole count alleged, and subsequently sustained, against N.H.s alleged father, appellant T.H. (Father), stated he had a history of substance abuse which rendered him incapable of providing regular care for N.H., and placed her at risk of physical and emotional damage. ( 300, subd. (b).) N.H. and J.B. were placed in the care of N.H.s godmother, with whom N.H. had been living since May 2006,[3]and with whom both children remain. The court ordered family reunification services for Father, and directed him to participate in a drug rehabilitation program with random testing and parenting classes. He was given monitored visitation with N.H., including overnight weekend visits, and DCFS was given discretion to liberalize that visitation schedule.

In November 2006, Father filed a section 388 petition requesting modification of the visitation order. Prior to the time Father filed his petition, DCFS had not been notified Father was troubled in any respect by the visiting arrangements. After the petition was filed, a social worker attempted to contact Father several times to discuss the matter but was unable to reach him because his phone had been stolen. DCFS did not oppose the petition, which was granted in January 2007. Father and N.H.s paternal grandmother were given extended overnight visits with N.H. twice a month.

A six-month review hearing was conducted in March 2007. DCFS reported that Father had successfully completed residential and outpatient substance abuse programs and parenting classes at his sober living facility, where he was a leader and model resident. At the hearing, Father informed the court he had moved and asked that DCFS assess his new residence so he could have overnight visits with N.H. in his new home and, eventually, have his daughter live with him. The juvenile court found Father was complying with his case plan and continued the matter to July 2007, for a 12-month review hearing.

In May 2007, the attorney for N.H., joined by DCFS, filed a motion requesting that Fathers visitation be restricted and monitored by a DCFS social worker. ( 385.) The request was based on a medical report, a report from N.H.s therapist and a letter from her godmother. The medical form indicated the child was suffering from frequent urination and had been diagnosed with chronic post-traumatic stress disorder. The therapist reported that, according to N.H.s godmother, N.H. tended to regress behaviorally and emotionally in anticipation of overnight visits at her paternal grandmothers house: she urinated on herself, vomited, cried and became irritable. The therapist observed similar behavior during her sessions with N.H., who expressed her anxiety over the visits, and told the therapist such things as, I dont like to go to my grandmas house, and that her paternal grandmother told her not to talk to the therapist. In her letter, the godmother informed the court that, after one visit in late September 2006, Father and paternal grandmother failed to return N.H. to her care, and she had to contact the police to get the child back. After that incident, N.H. was frightened her father and paternal grandmother would not bring her back after visits. She had nightmares about her father, the monster, which caused her to wake up screaming, began urinating on herself and would vomit at school in advance of Fathers visits. The juvenile court set the motion for hearing in early July. Meanwhile, Father and the paternal grandmother were restricted to monitored visits with N.H. at DCFSs offices, or in a neutral location.

At the 12-month review hearing in July 2007, the juvenile court found Father had partially complied with his case plan and continued reunification services. Nevertheless, the court granted the motion filed by N.H.s attorney and terminated Fathers overnight visits, restricting future visits to a monitored neutral setting (not to include the paternal grandmothers home). The juvenile court ordered Father to attend a fatherhood group and to participate in play therapy with N.H. The paternal grandmother was ordered to attend a parenting class. A section 366.26 hearing was scheduled for November 27, 2007. N.H.s godmother expressed a willingness to become the childs legal guardian or to adopt her.

In its report for the November 27, 2007 hearing, DCFS recommended termination of Fathers reunification services. He had not begun attending the court-ordered fatherhood group nor undertaken any random drug tests. At the hearing, the court ordered N.H.s therapist to evaluate the possibility of joint counseling for N.H. and Father and gave DCFS the discretion to begin such counseling, if the therapist recommended it. The court found Father was not complying with the case plan. The matter was continued to January 7, 2008.

In early January, DCFS informed the juvenile court Father had relapsed in December and had been evicted from his sober living home. DCFS recommended that family reunification services be terminated and that a permanency planning hearing be set. On January 7, 2008, the juvenile court terminated Fathers reunification services, and scheduled a permanency planning hearing for April 2008.

In April 2008, DCFS reported Father had been readmitted to another inpatient drug rehabilitation program in early January 2008. The program was expected to last 12-18 months and included after-care outpatient services. DCFS also reported that, since early January 2008, Father had visited N.H. just once, in late March. N.H. and Father had kissed and hugged one another during the visit, and the social worker reported they appeared to share a bond. However, N.H. did not cry or ask to go with Father after the visit was over. DCFS reported that Father had not secured housing for himself and N.H. and noted N.H. had never actually lived with her father. In DCFSs view, termination of Fathers parental rights would not significantly impact the relationship between N.H. and her father. The hearing was continued to May 22, 2008.

In mid-May 2008, DCFS learned Father was no longer participating in the residential inpatient rehabilitation program but did not know where he had gone.

An adoptive homestudy for N.H.s godmother was approved in May 2008.

The section 366.26 hearing was conducted on May 22, 2008. Father argued his parental rights should not be terminated because he had established the beneficial contact exception. ( 366.26, subd. (c)(1)(B)(i).) The juvenile court disagreed. It found, by clear and convincing evidence, that N.H. was likely to be adopted and that Father had failed to establish any statutory exception to termination of parental rights. Parental rights were terminated, and N.H. was freed for adoption. This appeal followed.

DISCUSSION

Father maintains the juvenile court erred when it found he failed to establish the applicability of the beneficial relationship exception to adoption. Alternatively, he contends it was a denial of due process for the court to terminate his parental rights because DCFS interfered with and tried to deprive him of the ability to establish the applicability of the beneficial relationship exception to termination of parental rights. Neither contention has merit.

1. Applicable principles and standard of review

Father maintains the juvenile court erred by finding the beneficial relationship exception to adoption did not apply in this case. He argues he had regular contact and visitation with N.H. before and after her detention, and that he and N.H. have a bonded, parent-child relationship from which N.H. would benefit by continuing that relationship. ( 366.26, subd. (c)(1)(B)(i).)

Adoption is the permanent plan overwhelmingly favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Once the juvenile court finds, by clear and convincing evidence, that a dependent child is likely to be adopted, it must terminate parental rights unless there is a compelling showing that doing so may be detrimental to the child because an exception in section 366.26, subdivision (c)(1) exists. (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (Id. at p. 53.)

The beneficial relationship exception requires that a parent show termination would be detrimental because he has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) To establish the level of benefit necessary to satisfy this exception, a parent must prove more than just frequent and loving contact. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108 [to establish exception, parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant].) Rather, the parent must show 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 a new, adoptive parent. 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., supra, 27 Cal.App.4th at p. 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

The determination of whether the exception applies is made on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In short, courts will not find the exception applicable unless the parent occupies a parental role in his childs life. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

The parent seeking to invoke the beneficial relationship exception to termination of parental rights bears the burden of establishing the exception applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review the juvenile courts determination under section 366.26, subdivision (c)(1)(B)(i)[4]for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576; In re Casey D. (1999)70 Cal.App.4th 38, 52-53.)[5]

2. Father did not demonstrate the applicability of section 366.26, subdivision (c)(1)(B)(i).

Father contends he presented sufficient evidence to support a finding that the beneficial relationship exception should be applied here. DCFS argues Father failed to establish the first prong of the test because he did not maintain regular, consistent visitation with N.H. The juvenile court agreed with DCFS, and the record contains sufficient evidence to support that conclusion.

Father began having weekly visits with N.H. after she was detained in mid-summer 2006. The visits were monitored by N.H.s paternal grandmother. In late September 2006, Father was given additional monitored visitation, including overnight weekend visits at the paternal grandmothers home, twice a month. And, in early January 2007, the juvenile court granted Fathers section 388 petition, expanding the overnight/weekend visitation schedule further.

Just four months later, in May 2007, counsel for N.H. requested the court suspend visits at the paternal grandmothers home and restrict Father to monitored visits in a neutral setting. This request was based on reports from N.H.s doctor, godmother and therapist, stating the child did not enjoy the visits and, indeed, experienced significant distress and anxiety in anticipation of them. In addition, the godmother reported that, on one occasion, Father and the paternal grandmother refused to return N.H. after a visit, and the godmother was forced to call the police to get the child back. After that, N.H. was even more anxious before visits with her father. The request was granted on July 5, 2007. Since then, Father has never progressed beyond monitored visits in a neutral location.

Between July 5 and November 27, 2007, Father saw N.H. just 4 times in 20 weeks. He saw her once in July, did not see her at all in August and visited with her twice in October. He claimed he could not call to schedule more visits because he had no cell phone service and had lost his bus pass. The downward trend continued: between January 7 and March 27, 2008, Father only visited N.H. once.

The record contains substantial evidence to support the juvenile courts finding that Father failed to establish regular visitation and contact, the first prong of the section 366.26, subdivision (c)(1)(B)(i) exception.

Fathers case also founders on the second prong. Even if it could be said that Father maintained regular visitation, a more fundamental problem lies in the quality of those visits. To establish the second prong of the beneficial relationship exception to termination of parental rights, a parent must show he has a sufficiently strong bond with his child, such that the child would suffer detriment from its termination. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.) The parent/child relationship 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The beneficial relationship exception does not apply if a parent does not occupy a parental role in his childs life. (In re Jasmine D., supra,78 Cal.App.4th at p. 1350; In re Casey D., supra,70 Cal.App.4th at p. 51 [a parent who has essentially never had custody of the children or advanced beyond supervised visitation will have a difficult time establishing the exception].) [T]o establish the exception . . . , the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] (In re Andrea R., supra,75 Cal.App.4th at p. 1108.) A relationship sufficient to support the visitation exception typically aris[es] from day-to-day interaction, companionship and shared experiences. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The childs age, how much of her life has been spent in the parents custody, the positive or negative effect of interaction between the parent and child, and the childs particular needs, all of which may affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Here, Father did not have day-to-day contact with his daughter. But such contact is not required to establish the statutory exception to termination of parental rights. (In re Casey D., supra,70 Cal.App.4th at p. 51.) Courts examine the benefit of continued contact based on the level and amount of visitation a parent is permitted. (In re Brandon C., supra,71 Cal.App.4th at pp. 1537-1538.) There is no question that N.H. enjoyed the time she spent with her father. But there is no evidence in the record she ever looked to Father to nurture or parent her. That pivotal role is and, since N.H.s birth, has been fulfilled by her godmother. It is she, not Father, with whom N.H. shares an exceptionally close bond. The godmother is the person to whom N.H. turns for comfort before Fathers visits and to whom she easily and happily returns when the visits end.

The problem for Father, with respect to establishing the second prong of the beneficial relationship analysis, lies with the consideration of the amount of stability his daughter requires and deserves.

In determining whether a parent has met his burden to establish the applicability of the beneficial relationship exception, courts consider, among other things, the childs age, the portion of the childs life spent in the parents custody, and the childs particular needs. (See In re Autumn H., supra, 27 Cal.App.4th at p. 576.) N.H. who is now over eight years old has never lived with her father. The only parenting she has ever really known has been the attentive care she has consistently received from her godmother since she was born. DCFS noted the godmother was particularly patient and attentive to N.H.s special needs and was committed to providing her a safe, nurturing environment.

The record reflects that Father has and continues to make significant strides in his effort to maintain sobriety. But, as his eviction from the sober living programs and relapses demonstrate, Father is not yet ready to provide a home or the stability N.H. deserves, indeed, requires. In contrast, N.H. is thriving under the consistent, loving care of her godmother. The godmother has assumed full responsibility for N.H. and her half-brother, views both children as her kids, and is fully committed to adopting them and providing them lifelong care. By contrast, Father is not yet in or even near a position to assume his parental responsibilities or provide that degree of stability. The juvenile court did not err in concluding Father failed to establish the beneficial relationship exception to termination of parental rights.

3. DCFS did not attempt to deny Father his right of visitation

Father argues reversal per se is required because DCFS violated his constitutional rights by obstructing his visits with N.H. in violation of the juvenile courts orders in an effort to cause him to lose precious visitation time, and ultimately to defeat his ability to establish the beneficial relationship exception. He is mistaken.

Father argues that DCFS obstructed his visitation in various ways between August 2006, when the juvenile court issued the initial visitation order, and January 2007, when it granted his section 388 petition expanding his visitation schedule. This purported obstruction ostensibly deprived him of precious visits and the opportunity to strengthen the bond and relationship necessary to establish the beneficial relationship exception, his only viable defense to termination of his parental rights.

The record reflects otherwise. Father complains only about a five-month period at the outset of this dependency proceeding, which has now been pending for about two and one-half years. DCFS claims that, before he filed his section 388 petition in November 2006 two months after N.H. was detained Father never complained about or asked to extend his visitation schedule and had even participated in a meeting in early October 2006 at which the visitation schedule was arranged. DCFS was under the strong impression that Father was content with the visitation arrangements. After Father filed the section 388 petition, a DCFS social worker made a number of attempts to contact Father to discuss the visitation issue, but she could not reach him. DCFS never opposed Fathers request for expanded visitation. The record is bereft of any hint that DCFS made any effort to interfere with Fathers visits, or that it would not have cooperated completely had he simply voiced his desire to see N.H. more often. There is simply no evidentiary support for Fathers contention that DCFS interfered with his fundamental, constitutional interest in parenting.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED

WEISBERG, J.*

We concur:

MALLANO, P.J.

ROTHSCHILD, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

________________________________________________________________________

*Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

[2] The childrens mother is not a party to this appeal.

[3] Actually, the godmother had cared for N.H. since she was born.

[4] Section 366.26, subdivision (c)(1)(A) was renumbered 366.26, subdivision (c)(1)(B)(i) effective January 1, 2008. (Stats. 2007, ch. 583, 28.5.) The language of the exception and applicable case law have not changed.

[5] Some courts apply an abuse of discretion standard of review. (See, e.g., In re Jasmine D., supra,78 Cal.App.4th at p. 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) On this record, we would affirm under either standard.