In re T.G.

Filed 10/26/07 In re T.G. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this appeal, the father of a dependent child challenges the juvenile court order terminating his parental rights. He claims that the court erred in finding that the benefits of adoption for the child outweigh the parental relationship. We disagree and affirm the order.

FACTS AND PROCEDURAL HISTORY

The child whose interests are at issue in this proceeding is T.G., who was born in July 2005. She has an older brother, who was born in 2003, and an older half-sister on her mothers side, who was born in 1999. T.G.s siblings are not involved in this appeal, nor is her mother. This appeal is brought by her father, appellant Robert G. (the father). Respondent is the Santa Clara County Department of Family and Childrens Services (the Department).

Events Precipitating the Dependency

T.G. came to the attention of the Department following an incident that took place on October 8, 2005, at the fathers residence in Contra Costa County. On that day, officers with the San Pablo Police Department accompanied the mother to the fathers home on a civil standby in order to facilitate an exchange of the infant. The father became agitated and violent towards law enforcement and was arrested for resisting a public officer, assault, child endangerment, and use/under the influence of a controlled substance. The mother was allowed to take the child with her back to San Jose, but a referral was made to the Department.

Dependency Petitions; Detention

In November 2005, the Department filed a dependency petition on T.G.s behalf, alleging that the parents had failed to protect her. (See Welf. & Inst. Code,  300, subd. (b).)[1] The petition further alleged that T.G. was at risk because of sibling abuse, in that parental rights as to her brother had been terminated in February 2005. (Id., subd. (j).)

In December 2005, the Department filed amended pleadings. In a second amended warrant petition, the Department stated that the mother had been arrested on December 19, 2005, when she appeared at juvenile court for the initial hearing in possession of illegal drugs and drug paraphernalia. Thereafter, T.G. was detained and placed at the childrens shelter.

Jurisdiction/Disposition

After several continuances, the juvenile court conducted a contested jurisdiction/disposition hearing in March 2006. By then, the child had been placed out of county with a paternal cousin. First addressing jurisdiction, the juvenile court sustained the third amended petition. Turning to disposition, the court found that the childs welfare required continued removal from parental custody. Concerning reunification, the court accepted the mothers voluntary waiver of services. It ordered reunification services for the father, including a parenting class, counseling, and substance abuse testing and treatment. The father was permitted weekly, hour-long, supervised visits with the child, but the supervising social worker was given discretion to increase the frequency and duration of visits.

Review Hearings

In April 2006, the court conducted a 45-day case plan review hearing. According to an interim review report filed by the Department that month, the father attended only one of four scheduled visits. He had cancelled two visits, and the foster mother had cancelled a third. The father reportedly experienced difficulty engaging in reunification services because he resided in Contra Costa County and because of a leg injury that made transportation problematic. The Department tried to help the father overcome those difficulties; its efforts included locating a drug testing facility near his home and providing transportation assistance. Regarding visitation, the Department reported, it had arranged a set schedule for the father to visit T.G. in Contra Costa County, and the father was encouraged to follow through [with] all visits.

In May 2006, the court conducted a 90-day review hearing. In an interim review report prepared for that hearing, the Departments social worker expressed concern in regards to the fathers compliance with programs. Neither that report nor an addendum mentions visits.

In August 2006, the Department set the case for a six-month review hearing and it gave notice of its recommendation for termination of the fathers reunification services. On the scheduled hearing date, the matter was set for a contested trial the following month.

In September 2006, the juvenile court conducted the contested six-month review hearing. According to the Departments status review report, the father had failed to participate in most of his services, citing health and transportation problems. In an addendum report, the Department advised that the father had attended only seven of 20 scheduled visits. In a second addendum report, however, the Department noted some progress by the father with his case plan, and it now recommended continuing his services. The court did not adopt the revised recommendation, however. At the conclusion of the hearing, the court terminated the fathers family reunification services. The father was still allowed supervised visits with T.G., but visitation was reduced to just once per month for two hours, subject to increase at the discretion of the supervising social worker. The court also scheduled a hearing to select and implement a permanent plan for T.G. (See 366.26.)

Permanency Planning

The permanency planning hearing was conducted as a contested matter in early February 2007. The Department submitted a report for the hearing, in which it asked the court to terminate the fathers parental rights (as well as the mothers) and to free the child for adoption. Additional evidence at the hearing included testimony from the father and from the social worker.

At the conclusion of the hearing, the court ruled from the bench. It found by clear and convincing evidence that T.G. is likely to be adopted. The court rejected the fathers assertion of two exceptions to adoption, parental bond and sibling bond, finding that the evidence is insufficient to establish either one. The court therefore terminated parental rights for both the mother and the father, and it referred T.G. for adoption planning.

Appeal

The father brought this timely appeal. His sole contention on appeal is that the parental bond exception applies. (See 366.26, subd. (c)(1)(A).)

Both the Department and the child defend the challenged order.

DISCUSSION

As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions raised here.

I. Overview of Dependency Law

The Legislature has provided for juvenile court jurisdiction over dependent children. (See 300 et seq.)

The primary goal of the dependency statutes is to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible. (In re David M. (2005) 134 Cal.App.4th 822, 824.)

In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) We are concerned with the fourth and final phase here.

A. Permanency Planning

At the appropriate juncture, the juvenile court is required to select and implement a permanent plan for a dependent child. ( 366.26; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The selection and implementation hearing under section 366.26 takes place after the juvenile court finds that the parents are unfit and the child cannot be returned to them. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) A juvenile court at a section 366.26 hearing must select one of three plans for the child: adoption, guardianship or long-term foster care. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) Adoption is the preferred placement because it offers the prospect of a secure permanent home. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) Where the trial court finds that the child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of [five] specified exceptions. (Id. at p. 773.)

B. Parental Bond Exception to Adoption

The statute recognizes a parental bond or beneficial relationship exception to the termination of parental rights and adoption. ( 366.26, subd. (c)(1)(A).)[2] As developed in the case law, that exception comprises three essential elements: (1) regular visitation and contact; (2) a parental role; and (3) a relationship that 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Parents seeking to avoid the termination of their parental rights based on the parent-child relationship bear the burden of proving that the statutory exception applies to them. (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see also, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 773.)

C. Appellate Review

As California Supreme Court precedent teaches, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994)7 Cal.4th 295, 318-319.) But many courts have employed the substantial evidence review standard when the issue on appeal is the termination of parental rights, since the requisite case-by-case assessment of relevant circumstances generally requires a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) As a practical matter, the differences between the two deferential review standards are not significant. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067.)

Deferring to the juvenile court, we view the evidence in the light most favorable to the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We thus examine the record to decide whether a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 423, internal quotation marks omitted.) The appellant has the burden of showing that the challenged order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

II. Analysis

The father argues that the juvenile court erred in rejecting the parental bond as an exception to the termination of parental rights. We disagree.

A. The father failed to establish the parental bond exception.

As noted above, the parental bond exception comprises several elements, including regular visitation and contact and a parental role.

1. Visitation

The first requirement, regular visitation and contact with the child, is explicit in the statute. ( 366.26, subd. (c)(1)(A); see, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689.)

In this case, the Departments report for the permanency planning hearing summarizes the fathers visitation during the dependency as follows: Prior to Family Reunification services being terminated, [the father] visited with [the child] 8 times, for 1 hour each supervised visit. The visits were reported to be appropriate and the father and child to have enjoyed each others company. Since reunification services were terminated in September, the father has visited 2 times (10/5/06 and 10/19/06). The FFA social worker stated that the majority of the visits were spent sleeping, the father holding [T.G.] in his arms. In testimony at the hearing, the social worker affirmed that the father has not maintained consistent contact with the child .

The juvenile court did not make an explicit finding on the question of whether the father maintained regular visitation and contact with the child. The record supports the conclusion that he did not. But even assuming that he had done so, the father failed to carry his burden of establishing the other requirement, a parental role.

2. Parental Relationship

As this court explained more than a decade ago, the statute contemplates a relationship that is parental in nature. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Thus, in order to trigger the statutory exception, the parent must occupy a role that goes beyond that of friendly visitor, extended family member, or day care provider. (In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Casey D. (1999) 70 Cal.App.4th 38, 52; In re Beatrice M., at pp. 1419-1420.) As we have previously observed: While friendships are important, a child needs at least one parent. (In re Brittany C., supra, 76 Cal.App.4th at p. 854.)

Frequent, loving contact alone thus is not sufficient to establish the requisite parent-child relationship. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) Rather, the parental relationship is demonstrated by the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The relationship arises from day-to-day interaction, companionship and shared experiences. (Ibid.) Such daily nurturing is the hallmark of a parental relationship. (In re Brittany C., supra, 76 Cal.App.4th at p. 854; see also, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 774.) By the same token, however, everyday contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. (In re Casey D., supra, 70 Cal.App.4th at p. 51.)

Many different variables shape the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) Parent-child relationships do not necessarily conform to a particular pattern. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. (In re Autumn H., at pp. 575-576.)

Four variables are commonly cited: 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; see also, e.g., In re Amber M., supra, 103 Cal.App.4th at p. 689; In re Angel B., supra, 97 Cal.App.4th at pp. 467-468.)

Applying those variables to the facts of this case, we agree with the juvenile courts determination that the father does not occupy a parental role in T.G.s life.

We start with the first two factors, age and time with the parent. At the time of the permanency planning hearing in February 2007, T.G. was about a year and a half old. She had been removed from parental custody in December 2005, at five months of age. And the child had not resided with the father since October 2005, when she was just three months old. T.G. thus had spent the overwhelming majority of her young life in the care of others. These first two variables therefore weigh against a finding that the father occupied a parental role in the childs life.

Addressing the next two factors, we consider whether the fathers interaction with T.G. has been beneficial and whether he has met her needs. Visits were generally positive, with the supervision monitor reporting the father to be interested and interactive with [T.G.] in that he will talk and play with her. As just explained, however, positive interaction alone does not demonstrate the requisite parental relationship. (In re Angel B., supra, 97 Cal.App.4th at p. 468.) Furthermore, the record contains some evidence suggesting inattention to the childs needs, in that a few times during the visit, [the father] seemed unaware of [T.G.s] cues when she was hungry and continued to talk on the phone.

It is clear that this father loves his child, but there is scant evidence that he has acted in a parental role towards her. To the contrary, the social worker testified, T.G. instead looks to her caregiver as a parent[.]

In the words of the juvenile court: I dont think that the relationship she has with the father, although its apparently a nice one, comfortable one, and a happy one is in the nature of a parent child relationship . On this record, we must agree.

B. The benefits of adoption outweigh the parental relationship here.

As noted above, to warrant application of the statutory exception, the parent-child relationship must be so exceptional that its advantages to the child outweigh the benefits of adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To make that assessment, the court employs a balancing test.

1. The Balancing Test

The juvenile court examines the benefit to the child from continuing the relationship with a biological parent against the benefit to the child of a permanent placement with an adoptive parent. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) On one side of the equation is the relationship with the biological parent, which must be sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) On the other side of the equation is permanence for the child through adoption. The juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. (In re Cliffton B., at pp. 424-425.)

In assessing the benefit to the child of continuing the natural parental bond, the court looks for substantialbenefit from the relationship and great harm from its termination. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; In re Angel B., supra, 97 Cal.App.4th at p. 466; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As to the first element, the parent must show more than that the relationship is beneficial. (In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) Concerning the second element, this court has previously rejected the notion that the parent need only show some, rather than great, harm at this stage of the proceedings, reasoning that a contrary rule would defeat the purpose of dependency law. (In re Brittany C., supra, 76 Cal.App.4th at p. 853.)

In weighing the countervailing benefits of adoption, the court must bear in mind the well-established legislative preference for an adoptive placement over the less permanent alternatives of guardianship or foster care. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) Adoption is the preferred placement because it offers the prospect of a secure permanent home. (In re Jamie R., supra, 90 Cal.App.4th at p. 774.)

2. Application

In this case, the juvenile court explicitly balanced the benefits of maintaining the parent-child relationship against the benefits of security, stability, and permanence that adoption would provide. It found that the benefits of adoption for T.G. outweighed the harm that she would suffer from the loss of her relationship with the father. That determination is amply supported in fact and law.

As the juvenile court found, the parent-child relationship here was not so vital to the childs long-term well-being or of such substantial benefit that great harm would result from its termination. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) In the courts words, that relationship is certainly not one that we would preserve at the expense of the stability of adoption. We find no fault with that assessment.

Having weighed the benefits of the parent-child relationship against the childs need for permanence and stability, the juvenile court properly afforded her the most permanent and secure placement that it could adoption.

DISPOSITION

We affirm the February 2007 order terminating appellants parental rights to T.G. and freeing the child for adoption.

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McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Mihara, J.

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

[2] That provision reads in pertinent part as follows: (c)(1) If the court determines that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)