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In Re J.F., A Person Coming Under the Juvenile Court Law. v. J.K. et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


November 15, 2011

IN RE J.F., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.K. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. JD230902)

The opinion of the court was delivered by: Mauro , J.

In re J.F.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

J.K. (father) and S.F. (mother) appeal from the juvenile court's order terminating their parental rights as to four-year-old J.F. (minor). (Welf. & Inst. Code, § 366.26.)*fn1 Father contends the juvenile court erred in failing to find applicable the beneficial parental relationship exception to adoption. In addition, both parents argue that if we reverse the order terminating parental rights as to one parent, we must also reverse as to the other parent.*fn2

We conclude that the juvenile court's findings are supported by substantial evidence and that the juvenile court did not err in declining to find applicable the beneficial parental relationship exception. We will affirm the juvenile court's order terminating parental rights. Accordingly, we need not address the parents' second contention that if we reverse as to one parent, we must also reverse as to the other parent.

BACKGROUND

In June 2009, the Riverside County juvenile court ordered that minor be placed in foster care, and offered reunification services to the parents, based on the following facts:

The family home was in deplorable condition. Father had been arrested for possessing child pornography, which he watched on his computer in minor's presence. Father also had a longstanding problem with alcohol abuse. Minor appeared to be developmentally delayed. Mother relocated to Sacramento with minor's younger sibling Ja.F., living with a man who had an open Child Protective Services (CPS) case regarding his own children. Mother had a history with CPS too. Older siblings K.F. and N.F. were adopted by the maternal grandparents in the state of Washington. The maternal grandparents also sought placement of minor, and an Interstate Compact on the Placement of Children (ICPC) assessment found them qualified. Minor was placed with the maternal grandparents in September 2009.

The 12-month status review report, filed in June 2010, recommended: (1) minor should remain in the home of the maternal grandparents, who wanted to adopt him and who had custody of all his siblings (including Ja.F., who was made a dependent of the juvenile court in August 2009); (2) father's services should be terminated; (3) mother's services should be continued for six months; and (4) the case should be transferred to Sacramento County, where mother lived.

In support of these recommendations, the 12-month status review report stated: minor, now three years old, was grossly delayed in speech and learning, but was receiving speech therapy and was evaluated for special education services. According to the maternal grandmother, minor recently had nightmares during which he would repeat "daddy, daddy[,] no."

Father pleaded guilty to bringing child pornography into the state. He was placed on probation and was subsequently accused of violating probation.*fn3 Although he had participated in services, he still lacked insight and saw himself as a victim. Minor would be at risk in father's custody because minor's disabilities would prevent minor from reporting any abuse.

The parents had separate supervised visitation in Washington, which had gone well.

In July 2010, the juvenile court terminated father's services and ordered the case transferred to Sacramento County, which accepted the transfer. In September 2010, the Sacramento County juvenile court adopted the recommended findings and orders.

In October 2010, an addendum report advised the juvenile court that mother's services had been terminated as to Ja.F. The report recommended terminating her services as to minor and setting a section 366.26 hearing; the juvenile court issued those orders.

The section 366.26 report recommended the termination of parental rights. According to the report, minor was still delayed in speech and motor development, but he was lively and had "high energy." He had an individualized education plan. The maternal grandparents consistently met his needs, understood and accepted the responsibilities of adoption, and passed all required screenings so far. An ICPC request for an adoption home study would be submitted after the termination of parental rights. Despite his developmental delays and behavioral issues, minor was generally adoptable and the likelihood of his adoption was "very good."

The section 366.26 report said father's visits with minor had been appropriate, but he had not visited in almost a year. Due to the nature of his criminal history, the maternal grandparents were uncomfortable supervising his visits.

The juvenile court held a contested section 366.26 hearing as to minor on February 15, 2011. Maternal grandfather testified that father came to Washington six or seven times for monthly supervised visits, usually for half a day at a time, but the last visit had occurred months before the hearing. The visits were in public places, not at the grandparents' home. They went very well. Minor called father "daddy" and showed affection, although minor's speech was delayed. Minor would appear happy and excited to see father. Minor was a very friendly boy and acted with father in much the same way he acted with most people. During father's visits, the maternal grandfather primarily took care of minor. Maternal grandfather would never let minor out of his sight for more than a few seconds in father's presence.

Father would play with minor when he visited. In the beginning minor was "clingy" and upset when father had to leave, but as father's visits became less frequent, minor became more "numb to it where he didn't really show any real emotions one way or the other." Minor never showed lasting distress.

Father thought he had last visited minor five months before the hearing. Living three states away, father could not visit regularly, but he tried his best to keep in contact. Father occasionally made phone calls to minor. Father testified that he tried to call minor regularly and spoke to him on the phone as much as four times a month; they talked about how minor was doing in school and whatever minor wanted to talk about.

Grandfather did not think there was such a bond between father and minor that minor would benefit by maintaining the relationship.*fn4 But father did not agree with the termination of his parental rights because the minor needed him to be there: "I'm his father. I'm supposed to take care of him."

The juvenile court found:

"[I]t is likely by clear and convincing evidence that [minor] will be adopted if parental rights are terminated. The Court has previously terminated reunification services to both of the parents in this case, and I am taking judicial notice of the prior findings and orders in this case. There is insufficient evidence submitted by [father] for the Court to conclude that he has maintained regular visitation and contact, and that [minor] would benefit from continuing the relationship that exists between [father] and [minor] to the point that [minor] should forego parents who are present as parents, who are occupying the parental role and appropriately raising the child.

"Counsel are correct in regard to the standards setforth [sic] that the Court must adhere to found in In [r]e Autumn H.,*fn5 and that the evidence falls far short. At best, the Court heard testimony that would describe very remote visits, and by remote I mean remote in time relative to the age of this child . . . . [G]iven [minor]'s age, the fact that there is a sibling in the home and other non[-]dependent siblings in this placement to allow him to continue to maintain sibling relationships, the limited relationship that's been described by the evidence between [minor] and [father] would certainly benefit [father] but not [minor]."

The juvenile court ordered the termination of father's and mother's parental rights.

DISCUSSION

I

Father contends the juvenile court erred by failing to find applicable the beneficial parental relationship exception to adoption. We disagree.

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for the minor. The permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

To prove that the beneficial parental relationship exception applies, the parent must show that he or she "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H., supra, 27 Cal.App.4th at p. 576.) It is not enough simply to show "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.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) But even where such an attachment exists, it does not preclude adoption if the minor looks to his prospective adoptive parents to meet his needs. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)

"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.) This is not such a case.

Substantial evidence supports the juvenile court's findings. Father had not visited minor for several months by the time of the section 366.26 hearing. By father's own admission, minor showed little emotion when the last visit ended. According to the maternal grandfather, minor showed no lasting distress. Even allowing for the difficulties of visitation under these circumstances and giving father credit for phone calls, this evidence showed only, as the court found, that father related to minor as a "friendly visitor," not as someone to whom minor looked for parental care. Thus, even if father satisfied the criterion of regular visitation and contact, he failed to show that he had a bond sufficiently strong and positive to cause minor detriment from the termination of parental rights. Furthermore, minor had lived with the maternal grandparents for over a year in the company of his siblings. Minor looked to the grandparents to meet his needs, and they met his needs. This evidence is sufficient to support the order terminating parental rights.

Father asserts that there was no evidence minor was "implicated in . . . father's sexual issues" and that minor demonstrated no fear of him. Even if true, these points are immaterial at this stage.

Father asserts that the maternal grandparents interfered with his visitation and made false accusations against him, causing his reunification services to be terminated. This assertion ignores the evidence cited by the 12-month review report to justify terminating services: father's services did not benefit him because he did not gain insight into his problems and still saw himself as a victim. In any event, father did not appeal from the order terminating services, did not file a section 388 petition to seek a change in the visitation orders, and did not call the juvenile court's attention to any obstacles to visitation created by the caretakers. Thus, he may not complain about these matters now.

Father cites Riverside County visitation logs for the period from July to September 2009 to prove the closeness of the bond between him and minor. However, the last of the entries was made almost a year and a half before the section 366.26 hearing. More recently, as the juvenile court found, the evidence showed no such closeness.

The juvenile court did not err in rejecting father's beneficial parental relationship claim.

II

Both parents contend that if this court reverses the termination of parental rights as to either parent, it must do so as to both. Because we are not reversing the termination of parental rights as to either parent, we need not address this contention.

DISPOSITION

The order terminating parental rights is affirmed.

We concur: ROBIE , Acting P. J. BUTZ , J.


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