In re S.C.
Filed 9/14/12 In re S.C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re S.C. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JAQUELINE S. et al.,
Defendants and Appellants.
D061798
(Super. Ct.
No. EJ2199E-F)
APPEALS
from a judgment of the Superior Court
of
County, David B. Oberholtzer, Judge. Affirmed.
Jaqueline
S. and Timothy C., the parents of S.C. and L.C., appeal the judgment
terminating their parental rights under Welfare and Institutions Code section
366.26.
erred by not applying the beneficial parent-child relationship exception to
adoption (§ 366.26, subd. (c)(1)(B)(i)).
Jaqueline does not claim independent error, but contends that if
Timothy's appeal is successful, the termination of her parental rights must be
reversed as well. We reject Timothy's
contention and affirm the judgment.
FACTS
In March
2010, Timothy began caring for S.C., then three years old, and L.C., then three
months old, in his home because of Jaqueline's drug abuse.
On June 12,
as was his practice, he and S.C. met Jaqueline at a 7-Eleven store where
Jaqueline would pick up S.C. for a visit.
Timothy agreed to let Jaqueline borrow his car; he later stated that he
was unaware that she was under the influence of drugs. While shopping with S.C. at a grocery store,
Jaqueline left her purse inside the store bathroom. The purse, which was found by another shopper
who gave it to store personnel, contained methamphetamine and drug
paraphernalia. The store manager called
the sheriff's department. When Jaqueline
inquired whether the purse had been found, she was arrested and S.C. was taken
into protective custody. Timothy was contacted and was told to report
to the sheriff's station in Lemon Grove with L.C., who
was taken into protective custody. The
social worker criticized Timothy for using poor judgment by allowing Jaqueline
to take S.C. and drive his car, because he knew that Jaqueline did not have a
valid driver's license and that she had a drug problem.
The
Agency (Agency) subsequently filed dependency petitions on behalf of S.C.
and L.C., alleging that they were at substantial risk because of their parents'
substance abuse. (§ 300, subd.
(b).) The petitions referenced Timothy's
history of drug usage.
Almost
immediately, Timothy began engaging in services. In July, he voluntarily started individual
therapy and enrolled in the Incredible Families program. The program offers two-part sessions. During the first part of a session, the
parent has a supervised visit with his or her children. The second part is a parenting education
class. The program reported that Timothy
was "very loving and nurturing [to the girls]." The program also noted that Timothy actively
participated in the parenting class, was responsive to his children's needs and
"genuinely enjoys spending time with his children."
On
September 2, the court authorized unsupervised visits for Timothy. However, later that month, Agency asked the
juvenile court to revert Timothy's visitation back to supervised status because
he had allowed Jaqueline to participate in one of his unsupervised visits, in
violation of an earlier order, and he had tested positive for marijuana. In October, the court granted Agency's
request.
Also in
October, the court sustained the dependency petitions, as amended, and followed
Agency's recommendations that Timothy be offered family reunification services
and that Jaqueline not be offered services on the basis of section 361.5,
subdivision (b)(10) and (11).
name="_ftnref2" title="">[2]
In the
ensuing months, Timothy's participation in services decreased. He began missing sessions at the Incredible
Families program as well as therapy sessions.
Timothy also had a positive drug test for methamphetamine in October and
then failed to report for on demand drug testing for six months.
The
Incredible Families program terminated Timothy for missing too many
sessions. He restarted the program in
February 2011, but in late March the program terminated him again for missing
sessions. Timothy continued visiting his
daughters at a visitation center, but his attendance was spotty, and in April,
the center discontinued his visits. In
June, Timothy resumed visits with the girls at an Agency office and was late
for the first visit.
In January
2011, Timothy made an appointment with a new therapist to resume counseling,
but he failed to show up for the first two sessions. Timothy attended the next three sessions, but
told the therapist that he could not continue the therapy because he had
employment and housing problems.
At the
six-month review hearing, Agency recommended that Timothy's reunification
services be terminated, noting that he "has failed to mitigate the primary
issues that brought the children to the Agency's attention." In April, the court granted the request by
Timothy's counsel to refer Timothy to drug court. By July 5, the drug court reported that
Timothy had 56 days of sobriety. Timothy
also completed a parenting program through Home Start. At the contested six-month hearing on July
11, the court authorized six more months of services for Timothy.
On August
5, Timothy was admitted to the CRASH (Community Resources And Self Help)
program, an inpatient drug rehabilitation program. On September 1, Timothy was terminated from
the program, and on September 19, Timothy was terminated from drug court for
poor compliance.
Timothy
failed to show for six scheduled visits with the children, and the children
refused to attend one visit. S.C.
remarked that she was "sad" when "[m]y dad did not show
up." The social worker reported
that the children were happy to spend time with their father and that he was
affectionate and loving toward them.
On
September 23, Timothy was arrested on theft-related
charges.
At the
12-month review hearing on November 10, the court terminated reunification
services for Timothy and set a section 366.26 hearing.
Agency
assessed S.C. and L.C. as likely to be adopted if parental rights were
terminated. The girls were healthy and
the foster mother, who had an approved home study, wanted to adopt them. If the foster mother was unable to adopt
them, there were 33 approved families in San Diego
County who were willing to adopt a
child similar to S.C. and 59 approved families in the county who were willing
to adopt a child similar to L.C. Moreover, there were 21 approved families in
the county who were willing to adopt both girls.
Timothy
remained incarcerated and had not received any visits with his daughters since
September.
The section
366.26 hearing was held on April 17,
2012. The parties stipulated
to the following testimony by Timothy:
"I want to thank the court for the chance to rectify the situation
with my daughters. I love them very
much, have never stopped loving them, and will always love them. I feel that there is a very strong bond
between me and my daughters, and I believe that they want that bond to
continue. Therefore, I would ask the
court to please not terminate my parental rights and allow me to show the court
that I am ready to be a proper father to my daughters. I also would like to thank the current
caregivers . . . for taking care of my daughters and I
would respectfully ask them that if the court does decide to terminate my
parental rights, that they might allow me to play a role, no matter how small,
in [S.C.'s and L.C.]'s lives as they grow up.
And I will work doubly hard to earn that chance to be part of their
lives. Thank you."
The court
found that S.C. and L.C. were likely to be adopted and that none of the
statutory exceptions to adoption applied.
The court terminated parental rights and referred the children to Agency
for adoptive placement.
DISCUSSION
Timothy
contends that the juvenile court erred by not applying the beneficial
parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)). The contention is without merit.
Adoption is
the permanent plan that is preferred by the Legislature. (In re
Derek W. (1999) 73 Cal.App.4th 823, 826.)
At the selection and implementation hearing, the juvenile court must
terminate parental rights if the court finds that the child is likely to be
adopted within a reasonable time, unless one of the statutory exceptions
applies. (§ 366.26, subd.
(c)(1).) Section 366.26, subdivision
(c)(1)(B)(i), provides an exception to termination of parental rights when
"[t]he parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship." The exception applies only if both prongs are
met. The parent bears the burden to
establish by a preponderance of the evidence that an exception to the statutory
preference for adoption applies. (
1330, 1343-1345.)
Our
standard of review is the substantial evidence test. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)
We determine if there is substantial evidence, contradicted or
uncontradicted, to support the conclusions of the juvenile court, resolving all
conflicts favorably to the prevailing party, and drawing all legitimate
inferences to uphold the lower court's ruling.
(In re Brison C. (2000) 81
Cal.App.4th 1373, 1378-1379.)
The record
contains substantial evidence that neither prong of section 366.26, subdivision
(c)(1)(B)(i) was met.
Although
Timothy had frequent and consistent contact with S.C. and L.C. at the beginning
of the case when he initially enrolled in the Incredible Families program, by
the end of 2010, Timothy's visitation had become inconsistent. The Incredible Families program terminated
Timothy because he had missed too many visits.
When he restarted with Incredible Families in February 2011, his
attendance did not improve significantly and the program terminated him again
in March. Timothy's attendance was not
much better at the visitation center, and as result, in April, he lost the
privilege to have visits with his daughters there as well. In June, Timothy resumed visits with S.C. and
L.C. at an Agency office. In August,
Timothy enrolled in a residential drug program and, in September, he was
arrested. Timothy had no visits with the
girls after his arrest.
In addition
to failing to meet the first prong of section 366.26, subdivision (c)(1)(B)(i)
pertaining to visitation, Timothy also failed to satisfy the second prong of
the statute—namely, showing that S.C. and L.C. would benefit from continuing
their relationship with him. That
showing requires more than frequent and loving contact, an emotional bond with
the child, pleasant visits or incidental benefit to the child. (In re
Derek W., supra, 73 Cal.App.4th
at p. 827.) To overcome the statutory
preference for adoption, a parent must prove that he or she occupies a parental
role in the child's life, resulting in a significant, positive emotional
attachment of the child to the parent. (
In
come within the beneficial parent-child relationship exception to adoption, a
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." (Italics added.) The court must balance "the strength and
quality of the . . . 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." (Ibid.) The court's balancing
test must be performed on a case-by-case basis, taking into account variables,
including "[t]he age of the child, the portion of the child's life spent
in the parent's custody, the 'positive' or 'negative' effect of interaction
between parent and child, and the child's particular
needs . . . ."
(Id. at pp. 576,
575.) We subsequently affirmed this
balancing test, explaining that the standard "reflects the legislative
intent that adoption should be ordered unless exceptional circumstances
exist . . . ."
(In re Casey D. (1999) 70
Cal.App.4th 38, 51, italics added.)
The court's
finding that Timothy had not demonstrated that S.C. and L.C. would benefit from
continuing their relationship with him is supported by substantial
evidence. Timothy had to do more than
show an emotional bond with his daughters or that his visits with them were
pleasant. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Timothy had to show that he occupied a
parental role in S.C.'s and L.C.'s lives.
(Ibid.; see also
721, 728.) Timothy did not make that
showing.
We
acknowledge that Timothy's initial reunification efforts were significant. Timothy voluntarily started services in
July—before the jurisdiction and disposition hearings took place—and he
received high marks from his service providers.
The Incredible Families program personnel who watched him interact with
S.C. and L.C. were impressed with, among other things, how nurturing Timothy
was toward his daughters and how responsive he was to their needs. Further, at the beginning of September, the
court granted Timothy unsupervised
visitation. However, the
unsupervised visitation was short-lived; the court revoked it the following
month after Timothy tested positive for marijuana and improperly allowed
Jaqueline to visit the girls during one of his unsupervised visits. Timothy's visitation remained supervised for
the remainder of the case and his visits stopped altogether in September 2011
after he was arrested. Parents who have
not advanced beyond supervised visitation have a difficult time establishing
the beneficial parent-child relationship exception. (In re
Casey D., supra, 70 Cal.App.4th
at p. 51.)
By the time
of the section 366.26 hearing in April 2012, S.C. and L.C. had been living with
their caregivers for 21 months and were bonded to them. Moreover, the girls had blossomed under the
stability that the caregivers provided.
The girls were well behaved and appeared to be happy and well adjusted
in the caregivers' home. The primary
caregiver had been proactive with the two girls, noticing that S.C. became
upset when Jaqueline or Timothy missed visits and seeking therapy for her. When asked by the social worker where she
wanted to live in the whole world, S.C. replied that she wanted to live with
the caregiver and L.C.
At the
selection and implementation hearing, the juvenile court's foremost concern is
the child's interest in stability and permanency. (In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) "The purpose of section 366.26 is to
select a permanent plan for a child who cannot return home because
reunification efforts have failed."
(Ibid.) In the 12 months allotted to Timothy for
reunification, he did not overcome the problems that had led to S.C. and L.C.'s
dependency. Further, Timothy did not
demonstrate over the course of the dependency that he could assume a parental
role, and the once strong bond between him and the girls had largely
dissipated. Timothy did not establish
that severing what remained of this bond in favor of "the security and the
sense of belonging" that an adoptive family would provide would harm the
girls in any way. (In re Autumn H., supra,
27 Cal.App.4th at p. 575.) Simply put,
the benefits of the relationship between Timothy and the girls did not
"outweigh the well-being the [girls] would gain in a permanent home with
new, adoptive parents." (
Dependent children should not be made to wait indefinitely for their
father to become an adequate parent. (
310.)
DISPOSITION
The
judgment terminating parental rights is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
name="_ftn1" title="">[1]
Statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2]
Jaqueline has four other
children. In 2002, she left the two
older children with the paternal aunt because she was unable to care for
them. The paternal aunt was later named
guardian of these children. In 2003,
Jaqueline's younger two children were taken into protective custody after drugs
were found in the home. Jaqueline did
not complete her reunification plan and her parental rights were terminated in
2004. The younger two children were
eventually adopted by the same paternal aunt.
