IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
December 20, 2010
IN RE J.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT,
PLAINTIFF AND RESPONDENT,
M.P., DEFENDANT AND APPELLANT.
(Super. Ct. No. SC SC JV SQ 07-50510-01)
The opinion of the court was delivered by: Butz ,j.
In re J.H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant M.P., father of the minor, appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 He contends the juvenile court erred by failing to find an exception to adoption based on his beneficial parental relationship with the minor. (§ 366.26, subd. (c)(1)(B)(i).) Disagreeing with this contention, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, a dependency petition was filed by the Siskiyou County Human Services Department (the Department) concerning the two-month-old minor, who was born with severe medical problems, including gastroschisis (an abnormality of the placement of the intestines, which was corrected shortly after the minor's birth) and craniosynostosis (in which the skull bones are inflexible and fused, prohibiting normal brain growth). Staff at the hospital, as well as the minor's doctor, expressed concern that the mother did not appear able to care for the minor without assistance and did not obtain necessary support services. In addition, the petition alleged that appellant, who lived with the mother, initially was unaware of her neglect of the minor. Furthermore, appellant and the mother were late in scheduling a follow-up medical appointment for the minor.
The allegations in the petition were sustained and reunification services were ordered. Objectives for appellant included that he demonstrate an ability to provide adequate care for the minor's special needs, and services were geared toward teaching him to care for a medically fragile infant.
At the six-month review hearing, the mother's reunification services were terminated, but services for appellant, who was no longer living with the mother, were continued.
By the 12-month review, the minor had received surgery to repair her skull, and it had been determined that she needed additional surgery. Additionally, she had suffered multiple respiratory infections requiring emergency care and daily breathing treatments, and she had chronic ear infections. The minor was receiving physical therapy through the Far Northern Regional Center and was being seen at UC Davis Medical Center for follow-up care. Appellant was having regular, unsupervised visitation with the minor, including weekly three-hour visits in his home, and he continued to cooperate with all services.
At the 12-month review hearing, the juvenile court ordered six more months of services for appellant.
Appellant continued to cooperate with services, and the minor spent weekends with him, as well as two extended holiday periods. Appellant planned to move closer to his family if the minor was returned so they could help him with her care.
At the first 18-month review hearing, in January 2009, the social worker supported return of the minor to appellant. She acknowledged various concerns--including the fact that appellant did not have a valid driver's license, lacked personal cleanliness, smoked outside the home, and had difficulty getting fruits and vegetables into the minor's diet--but she did not feel these were obstacles to reunification.
The minor's pediatrician testified that he had various concerns regarding appellant's ability to care for the minor, but he acknowledged that these concerns had decreased and he could not say "to a reasonable medical certainty" that appellant could not care for the medical needs of the minor.
At the conclusion of the hearing, the juvenile court found by a preponderance of evidence that returning the minor to appellant would create a substantial risk of detriment and terminated reunification services.
Appellant filed a petition for an extraordinary writ in this court, which we granted, instructing the juvenile court to order the minor returned to appellant, depending on the circumstances on remand. (M.P. v. Superior Court (May 6, 2009, C060979) [nonpub. opn.].)
In the meantime, the minor suffered bouts of pneumonia in March and May 2009. She also "continue[d] to have episodes of severe wheezing," which could escalate quickly to "significant respiratory distress," and her pediatrician now felt she should not be around anyone who smoked. In addition, another surgery was scheduled to place screws in the minor's skull, which would require daily care following the surgery, and the pediatrician felt it would pose a danger if appellant was responsible for the minor's post-surgery care.
Appellant's visits with the minor were increased to weekends in his home. After some visits, he failed to return the minor's medication to the foster parent, and the amount of medication returned after one visit indicated he had not administered the correct amount to the minor.
The social worker acknowledged that neither the foster parent nor the minor's pediatrician felt appellant was capable of properly caring for the minor, but based on appellant's participation in services and the assistance his mother and stepfather were willing to provide, she initially opined that the minor could be returned to his care "with careful monitoring by medical professionals."
The minor's surgery was scheduled for July 2009. Appellant was directed to give the minor the majority of her care while she was in the hospital following her surgery. Appellant was permitted to stay in the minor's hospital room, but he continued sleeping when the minor awoke at night, as well as sleeping through some of the doctors' rounds. He also missed the minor's cues when she was in pain.
The social worker also learned that appellant's mother, who was "an important part of the Department's safety plan" for placing the minor with appellant, had "four or five different jobs and travels most of the time," "is often out of cell phone range," and is "rarely home."
Based on appellant's "inability to provide the highly skilled, consistent care" needed by the minor, the social worker changed the recommendation from returning the minor to appellant to terminating services and setting a section 366.26 hearing.
At the rehearing of the 18-month review, the juvenile court again found by a preponderance of the evidence that return of the minor to appellant would create a substantial risk of detriment. The court terminated reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor. Appellant's second extraordinary writ petition was denied. (M.P. v. Superior Court (Apr. 13, 2010, C063978) [nonpub. opn.].)
According to the report for the section 366.26 hearing, the minor had remained placed in the same foster home since dependency proceedings were initiated nearly three years earlier, when the minor was two months old, and the minor "appear[ed] to have substantial emotional ties" to her foster mother. The foster mother was committed to adopting the minor. The minor continued to have significant developmental delays, and it was anticipated that she would "have ongoing medical needs throughout her life." The social worker recommended a permanent plan of adoption.
Meanwhile, despite being permitted weekly visits, appellant visited the minor sporadically following the setting of the section 366.26 hearing, including a period of nearly three months when he did not visit her at all. However, appellant began attending visits regularly during the month preceding the section 366.26 hearing.
At the hearing, the social worker testified that she was not aware of appellant's current relationship with the minor, but they previously seemed to have a good relationship. The minor recognized appellant as someone she "knows and is comfortable with."
Appellant testified, explaining that he had to drive three hours each way to visit the minor and that the period of time during which he did not visit resulted because he was getting used to working a graveyard shift. Appellant testified that he loved the minor, and that she was always happy to see him and responded to him with affection. He felt she would benefit from a continuing relationship with him and that she would miss him if parental rights were terminated.
The foster mother testified that, following recent visits, the minor was "very clingy and had some behavioral issues," her language regressed, and she did not sleep through the night for a couple days.
Appellant argued that the statutory exception to adoption applied based on a beneficial parental relationship. The juvenile court took the matter under submission and, in a written ruling, ordered a permanent plan of adoption and terminated appellant's parental rights.
Appellant contends the juvenile court erred by failing to find an exception to adoption based on his beneficial parental relationship with the minor. We disagree.
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 "[t]he court finds a compelling reason for determining that termination would be detrimental" due to one of several statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).)
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).) However, a parent may not claim this exception "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 Jasmine D. (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 parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Even "frequent and loving" contact is not sufficient to establish a sufficient benefit to overcome the preference for adoption absent a significant, positive, emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even a strong, positive bond with a parent has been held insufficient to defeat adoption when a child looks to a prospective adoptive parent to meet his needs. (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(d)(4); In re Zachary G., supra, 77 Cal.App.4th at p. 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Turning to the present matter, we question whether appellant's sporadic visitation with the minor following the most recent termination of services was sufficient to satisfy the exception's requirement of regular visitation and contact with the child. Appellant failed to visit the minor for nearly three months before reinitiating contact with her, and it took another month before his visits became regular. It was after this hiatus from visits that the minor began to evince negative reactions to contact with appellant.
In any event, the detriment to the minor from severing contact with appellant had to be "compelling" to warrant a permanent plan other than adoption. (§ 366.26, subd. (c)(1)(B)(i).) There was ample evidence that the minor's bond with appellant was not sufficiently compelling to derail adoption in favor of an alternative permanent plan. The minor's need for stability and permanence was extraordinary as a result of her special needs. She had "substantial emotional ties" to her foster mother, who had shown the ability to meet her needs and wanted to adopt her. Although the minor was comfortable with appellant and their visits went well, there was scant evidence of a strong bond between them or that she would be greatly harmed if the relationship was severed. In fact, as already noted, there was evidence that she had begun to have an adverse response to visits with appellant. Under such circumstances, the juvenile court did not err in its determination that the advantages of adoption outweighed the benefit the minor would gain from maintaining her relationship with appellant.
Appellant argues that the juvenile court erred by not applying the exception because he did everything he could to regain custody of the minor. But once services have been terminated and the juvenile court is considering the best permanent plan for the minor, the issue is whether severing the parent-child relationship will greatly harm the minor, not the extent of a parent's efforts or how the parent will be affected if rights are terminated.
Appellant complains that the impact of terminating parental rights "is unknown" and "it cannot be said that adoption substantially outweighs the benefit to [the minor] of maintaining her relationship with [appellant]." Although we disagree that the evidence did not establish the benefit to the minor of adoption as "substantially" outweighing that of maintaining her relationship with appellant, this is not the standard. As already stated, only "[i]f severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed" is the preference for adoption overcome. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) It was appellant's burden to establish this.
Appellant argues his circumstances are analogous to those in In re Amber M. (2002) 103 Cal.App.4th 681, which held it was error to decline to apply the beneficial parental relationship exception with regard to three children who had been out of their mother's care for more than two years. However, in Amber M., the two older children "loved and missed" their mother and expressed conflicting desires with regard to whether they wished to live with her or remain with the relatives who were their prospective adoptive parents. (Id. at pp. 686-687.) Furthermore, a therapist, the CASA (court-appointed special advocate), and a psychologist (who conducted a bonding study) all concluded that severing the parental bond could be detrimental to the children. (Id. at pp. 689-690.) No such evidence was presented here.
Appellant's reliance on In re S.B. (2008) 164 Cal.App.4th 289 is similarly misplaced. In that case, the juvenile court found that a six-year-old child, whose primary caregiver for three years had been her father, had an emotionally significant relationship with him, but the court 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]." (Id. at p. 301.) In the present matter, the juvenile court did not make any equivalent findings concerning appellant's relationship with the minor, and substantial evidence supports a finding to the contrary--that in light of the minor's young age and ability to attach to another caregiver, she would not suffer great harm if parental rights were terminated.
Appellant claims that In re Amber M. and In re S.B. mandate reversal here because "there is no evidence of a clear and convincing nature to support the juvenile court's implied finding that terminating [his] parental rights would not be detrimental to" the minor. Appellant again misstates the standard when ruling on a proffered exception to adoption. "[T]here is no constitutional requirement that the state prove that termination would not be detrimental by clear and convincing evidence." (In re Cristella C., supra, 6 Cal.App.4th at p. 1373.)
For all of the foregoing reasons, we reject appellant's claim.
The juvenile court's order is affirmed.
We concur: BLEASE, Acting P.J. MAURO ,J.