In re N.R.

Filed 1/19/10 In re N.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgment of the Superior Court of Orange County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Introduction

At a permanency planning hearing conducted pursuant to section 366.26, the juvenile court terminated the parental rights of W.R. (father) and T. R. (mother) to N.R., now 10 years of age. (All further statutory references are to the Welfare and Institutions Code.) Father appeals from the judgment, arguing there was not substantial evidence supporting the juvenile courts finding that the beneficial parent‑child relationship exception to adoption ( 366.26, subd. ((c)(1)(B)(i)) did not apply. We affirm.

Statement of Facts and Procedural History

In May 2007, N.R. and his three half siblings were taken into protective custody by the Orange County Social Services Agency (SSA). After the contested 18‑month review hearing, the juvenile court ordered that reunification services be terminated, and set the matter for a permanency hearing. Father filed a petition for a writ of mandate, asking this court to order the juvenile court to vacate its order. In an unpublished opinion, this court denied the petition. (W.R. v. Superior Court (Apr. 23, 2009, G041616).) A detailed statement of facts and procedural history up to that point is contained in that opinion.

SSAs permanency hearing report, prepared and filed in June 2009, stated father maintained intermittent telephone contact with N.R. Father, who lived in Texas, had not visited with N.R. in person since N.R. travelled to Texas during the winter holiday in 2008. The social worker believed it was highly likely that N.R. and his sister would be adopted by mothers godmother, who had been their foster mother since they were detained (the caregiver). The caregiver was very capable of caring for N.R., who had special needs that she has been able to ensure are well cared for and maintained. N.R. appeared to have a continuous bond to his foster mother . . . . The undersigned has spoken with N[.R.] in previous contacts about his caregiver and he smiles when he talks about [the caregiver] and how she takes care of him. N.R. was very comfortable in his environment, understood what adoption meant, and wanted the caregivers home to become his forever home and family. N.R. wanted to live with his siblings and the caregiver for the rest of his life. SSA recommended parental rights be terminated.

In an addendum report, SSA reported that when asked what adoption meant, N.R. responded, it means that [caregiver] will be my parent, and he would be okay with that. N.R. also indicated he understood that mother and father would no longer legally be his parents. N.R. reported a telephonic conversation with father where father said some mean stuff about the caregiver and her daughter.

At the permanency hearing, N.R., who was then nine and one‑half years of age, testified he understood adoption meant he would get to live with the person for the rest of [his] life. He wanted to be adopted by the caregiver, and he did not like to talk to father because father was saying mean things about [the caregiver]. N.R. testified it probably wouldnt matter that much if he was not able to talk to father; he was not close to father and did not miss father; if he had to choose between living with father and the caregiver, he would choose the caregiver. N.R. considered his family to consist of the caregiver, the caregivers own children, and N.R.s sisters, and he enjoyed living with all of them.

Father was not able to appear at the hearing, but had prepared the following written statement, which was read into the record by fathers attorney: This is the statement of [father]. [] I would like to begin by saying that why the California Child Protective Service [CPS] abusively insist[s] that my child be made a ward of your state escapes me. This agency has from the onset refused to make any effort to rejoin my child to his father. Instead it has vigorously and by using trickery to gain an end to my family. This court has held in some manner that I am not truthful or untrustworthy for my child. [The social worker] intentionally lied to me concerning the parenting class I attended however that false activity seemed to be overlooked. [] Further concerning the ICPC [Interstate Compact on the Placement of Children] for Texas it was approved then[ ]after California CPS [m]ade a claim some portion that CPS withheld was incomplete. And after I had it completed refused to accept the confirmation and passed along to the court that my ICPC was not approved. I challenge them to contact the supervisor for Texas Michol Rosen to substantiate this. Ask Ms. Rosen did she not contact me personally to tell me my plan was approved, and I did follow up with the background checks for my second and third caretakers. [] CPS used its position with the court to short hand answers to gain the ruling of me [losing] my child without me committing ONE act that the court or CPS can stand on to [lose] my child. I have received the usual justice of the poor in this instance, I also beli[e]ve I have faced the bias of me being a man and prejudice of having been incarcerated as the actual grounds of the decisions being given in this case. [] The government of California has taken my child without reason of harm or neglect by me to my child, and with regards to my child he is my child and CPS is creating his psychological problems with all of its actions at the taxpayers[] expense. I close by saying I love my child by my measure not by what can be conjured up for others.

SSA argued the relationship between N.R. and father did not fall within the beneficial parent‑child relationship exception to adoption. Fathers attorney argued that father objected to termination of parental rights and asked the court to select a less permanent plan than adoption.

The juvenile court found N.R. was adoptable and its order stated no statutory exception to adoption applied. The court then terminated parental rights and identified adoption as the permanent plan. Father timely appealed. Mother is not a party to this appeal.

Discussion

Father raises a single issue on appeal: Did the juvenile court err in finding the beneficial parent‑child relationship exception to adoption did not apply? SSA argues father forfeited this argument by failing to raise it below. SSA raised the issue of the parent‑child relationship exception, and argued against its application. We conclude the argument has not been forfeited on appeal.

If, pursuant to section 366.26, subdivision (c)(1), a juvenile court finds a child is adoptable, it must terminate parental rights unless it concludes termination would be detrimental to the child because, among other things, [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).) (Father does not argue on appeal that N.R. is not adoptable.)

Father contends the juvenile court erred by failing to find theparent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(B)(i), allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds a compelling reason for determining that termination would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Father had the burden of proving both prongs of the parent‑child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949‑950.) We consider whether substantial evidence supported the juvenile courts determination the exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424‑425.)[1]

Assuming for purposes of this appeal that fathers visitation was regular (as SSA concedes), we conclude there was substantial evidence supporting the juvenile courts finding that N.R. would not benefit from continuing his relationship with father. For the parent‑child relationship exception to apply, the parent must establish the existence of a substantial, positive emotional attachment such that the child would be greatly harmed if that bond were severed. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Father did not make such a showing in this case. To the contrary, the evidence before the juvenile court at the permanency planning hearing was that N.R. did not miss father, was not close to him, and did not want to talk to him on the telephone. N.R. understood what adoption entailed, and wanted to be adopted by the caregiver. N.R. wanted to live with the caregiver and his half siblings, and if he had to choose between living with father and the caregiver, he wanted to live with the caregiver. N.R. was comfortable, safe, and happy in the caregivers home, and had developed a loving bond with her.

Father did not offer evidence of a relationship between himself and N.R. (other than a purely biological one). Father did not establish N.R. would be harmed emotionally or otherwise if parental rights were terminated. We conclude substantial evidence supported the juvenile courts finding.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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[1] In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the appellate court acknowledged that courts have routinely applied the substantial evidence test to the juvenile courts finding under section 366.26, subdivision (c)(1)(A). The appellate court in In re Jasmine D. stated the abuse of discretion standard is a more appropriate standard even though [t]he practical differences between the two standards of review are not significant. (Ibid.) In this case, fathers argument fails for the same reasons under either standard.