IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
February 3, 2011
IN RE KO.V., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
KE.V., DEFENDANT AND APPELLANT.
Super. Ct. No. JD223152
The opinion of the court was delivered by: Blease , J.
In re Ko.V. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Ke.V., father of the minor, appeals from orders of the juvenile court terminating parental rights and selecting adoption as the minor's permanent plan. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court erred in finding termination of his parental rights would not be detrimental to the minor because the evidence established that the minor would benefit from continued contact with appellant. We affirm.
From October 2005 to June 2008, the minor was twice removed from, then returned to parental custody after the mother successfully completed reunification services. In December 2008, six months after the second reunification, the five-year-old minor and his older half sibling were detained for a third time due to the mother's substance abuse and domestic violence between appellant and the mother. The court ordered reunification services for the mother but not for appellant who asserted Robert L. status.*fn1
After more than 12 months of services, the mother failed to reunify and the court terminated her reunification services. Although the mother had not visited the minor for nine months, appellant visited weekly and interacted with the minor. The foster mother supervised appellant's visits and had no concerns about them.
Appellant filed a petition for modification seeking services with a goal of eventual custody, alleging he had done services on his own for a year and emphasizing his bond with the minor.
The report for the section 366.26 hearing confirmed appellant had consistently attended weekly supervised visitation with the minor. When the case was transferred to adoptions, visitation was reduced to every other week. Visitation remained appropriate but appellant was not involved in parenting the minor. The seven-year-old minor said he looked forward to visits with appellant, but was excited about the idea of growing up with a mother and a father and wanted to be adopted with his older half sibling. The minor said he would be sad to not return to his father, but he wanted a house with a mom and a dad and a family that would take him fishing and camping and to play ball. The current foster parent did not want to adopt and the minor and his sibling did not want to stay in the current placement. The social worker was in the process of selecting a potential family from more than 20 applications and considered the minor and his half sibling highly adoptable. By the time of the report, the search had narrowed to one family considered to be a good match. The social worker acknowledged appellant's regular visitation but noted his extensive health problems, both mental and physical, and the minor's need for permanency after the lengthy periods of foster care.
At the hearing, after considering appellant's statement and the parties' arguments, the court denied the petition for modification, finding the proposed order was not in the minor's best interests.
As to the selection of a permanent plan, minor's counsel argued the minor's relationship with appellant would not outweigh the benefit of permanency and adoption should be his permanent plan. Appellant's counsel objected to termination of parental rights and reiterated his arguments from the petition for modification, stating that appellant loved the minor and did not want to lose his parental rights, but understood the minor needed a permanent home. Appellant wanted to be a part of the minor's life even if he was not the parent and hoped for an open adoption.
The court found the minor was likely to be adopted and addressed the question of the benefit exception to adoption. The court concluded there had been regular visitation and some benefit to the minor in ongoing contact with appellant, but that termination of parental rights would not deprive the minor of a substantial positive emotional attachment such that the minor would be greatly harmed and, thus, the benefit did not outweigh the preference for adoption as a permanent plan and terminated parental rights.
Appellant contends reversal is required because he established that termination of parental rights would be detrimental to the minor because he had regularly visited the minor who would benefit from continued contact with him. We disagree.
At the outset, we note that appellant, who had the burden to do so, did not actually assert any exception to the preference for adoption and did not present evidence or argue that the benefit exception applied in this case, other than referring to the just-denied petition for modification. Thus, the issue would normally be forfeited on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) However, assuming arguendo that the court's ruling adequately preserved the issue in light of all the arguments made, we shall briefly address it.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several "'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.' If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 [citations omitted].) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
One of the circumstances in which termination of parental rights would be detrimental to the minor is: "The 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).) 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 this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
The elements of the exception were not established here. Appellant undisputedly had regular visitation with the minor. However, the relationship, although loving, did not establish the significant, positive emotional attachment necessary to overcome the well-being the minor would gain in a permanent home. The minor himself recognized this when he expressed sadness at not returning to appellant but also a positive and eager anticipation of having a family with both a mother and a father and engaging in normal family activities. Much of the time that the minor had spent with appellant during his short life, excluding supervised visitation during the three dependency cases, was marred by domestic violence, substance abuse and uncertainty. While a bond between them remained, it did not outweigh the minor's need and desire for permanency.
The orders of the juvenile court are affirmed.
RAYE , P. J.
BUTZ , J.