In re C.K.

Filed 5/1/07 In re C.K. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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James K. (appellant), the father of C.K. (the minor), appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; undesignated section references are to the Welfare and Institutions Code.) Appellant contends the failure by the juvenile court to apply the statutory exception to termination of parental rights based on his relationship to the minor ( 366.26, subd. (c)(1)(A)) requires reversal of the order terminating his parental rights. Disagreeing with that claim, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 2005, Shasta County Department of Social Services (DSS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the four-year-old minor. That petition alleged in part that the minor was at a substantial risk of suffering serious physical harm because of the minors mothers substance abuse and due to appellants inability or unwillingness to protect the minor from the mother. The petition also averred that it was unknown whether appellant, who was released recently from prison, was able to provide adequate care for the minor.

The juvenile court sustained the petition, adjudged the minor a dependent child, removed the minor from parental custody, and ordered DSS to provide appellant with reunification services. Those services included twice-weekly visits with the minor. A February 2006 DSS report noted appellant had been visiting the minor regularly and the minor enjoyed those visits.

On September 8, 2006, the juvenile court terminated appellants reunification services. DSS recommended termination of appellants parental rights and a permanent plan of adoption for the minor. According to DSS, the minors relationship with appellant was not characterized by security or dependability. DSS opined that the benefit of the minors relationship with appellant did not outweigh the minors needs for security and stability. Moreover, appellants visitation with the minor was inconsistent, which disappointed the minor. They had had monthly visits recently, and appellant corresponded with the minor during another period of incarceration.

At the December 1, 2006, section 366.26 hearing, appellant testified he was living with the minors mother when the minor was born, and remained with her until the minor was three years old. According to appellant, the minor called appellant daddy. While appellant was incarcerated, he maintained contact with the minor through correspondence and telephone calls. After he was released from prison, appellant saw the minor regularly. Thereafter, appellant missed three or four visits with the minor due to personal problems. During two subsequent incarcerations, appellant did not see the minor.

Appellants current release date was January 25, 2007.

Appellant opposed the recommendation by DSS that his parental rights be terminated. Appellant believed the minor would benefit by continuing a relationship with the appellant.

At the conclusion of the hearing, appellants counsel submitted the matter without argument. The juvenile court found it likely the minor would be adopted and terminated appellants parental rights. This appeal followed.

DISCUSSION

Citing evidence of regular visitation with the minor and of the existence of a parent-child relationship, appellant contends the juvenile court committed reversible error in failing to apply the statutory exception to adoption contained in subdivision (c)(1)(A) of section 366.26. According to appellant, his relationship with the minor was so significant that continuing it would benefit the minor. Therefore, appellant argues, guardianship, rather than adoption, was the appropriate permanent plan for the minor.

The California Supreme Court has stated, An appellate Court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], italics in Doers.)

The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) No procedural principle is more familiar to this court than that of a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

Here, the record shows, at no time during the proceedings did appellant or his counsel make any attempt to argue the applicability of any statutory exception to termination of parental rights. The court has no sua sponte duty to determine whether an exception to adoption applies. Thus, appellant is precluded from raising the claim here. (In reRachel M. (2003) 113 Cal.App.4th 1289, 1295; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) He has forfeited his claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

Assuming appellant preserved his claim by testifying at the section 366.26 hearing that he believed the minor would benefit from continuing a relationship with appellant, we conclude appellant still cannot prevail. We shall state the principles pertaining to the benefit exception to adoption and explain why the record does not support appellants contention that the exception applied here.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] 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.)

One of the circumstances under 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)(A).) The benefit to the child must promote 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1372.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive, emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

In this case, it is true that, at least early in the proceedings, appellant visited the minor regularly, and a relationship existed between them. Thereafter, however, appellants contact with the minor was sporadic, leading to the minor expressing his disappointment with appellant. Appellant violated his parole and was reincarcerated at least twice during the period of reunification. More fundamentally, appellant failed to show how the minor would benefit from continuing their relationship.

Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H., and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental involvement and attachment. Even assuming that those decisions overemphasized the importance of the parental role, as appellant suggests, the record here does not support appellants suggestion that the minor would benefit from continuing his relationship with appellant simply because the minor had lived with appellant for several years and because of their history of visits. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)

Here, the issue was as follows: In light of the minors adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts implied answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor.

After it became apparent that appellant would not reunify with the minor, the juvenile court had to find an exceptional situation existed to forego adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, to the contrary, the court determined impliedly that the minor would not benefit from continuing a relationship with appellant to such a degree that termination of parental rights would be detrimental to the minor. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating appellants parental rights based on its failure to apply the section 366.26, subdivision (c)(1)(A), exception.

(In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)

DISPOSITION

The order terminating the parental rights of appellant is affirmed.

SIMS , Acting P.J.

We concur:

HULL, J.

BUTZ , J.

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