In re Curtice B.

Filed 2/14/07  In re Curtice B. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Fresno County.  Jamileh Schwartzbart, Temporary Judge.  (Pursuant to Cal. Const., art. VI, §  21.).

            David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

            Dennis A. Marshall, County Counsel, and David F. Rodriguez, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

            Cassandra B. appeals from an order terminating her parental rights (Welf. & Inst. Code, §  366.26) to her two sons, Curtice and Andrew.^[1]  She contends the court erred by rejecting her argument that termination would be detrimental to the boys based on their relationship with her.  On review, we will affirm. 

PROCEDURAL AND FACTUAL HISTORY

            In February 2003, one-month-old Andrew was hospitalized for multiple rib fractures caused by the infant's father.  Appellant reasonably should have known her children were at risk of serious harm due to the father's anger problems and ongoing substance abuse, as well as the couple's domestic violence.  In addition, appellant had a substance abuse problem that negatively affected her ability to provide her children with appropriate care.  As a result, respondent Fresno County Department of Children and Family Services (department) detained Andrew as well as two-year-old Curtice and initiated the underlying dependency proceedings.

            The Fresno County Superior Court thereafter exercised its dependency jurisdiction over both boys, adjudged them juvenile dependents, and removed them from parental custody.  After 18 months of reunification services, appellant made sufficient progress that, in February 2005, she regained custody of the boys subject to family maintenance services.  However, as of November 2005, it became necessary for the department to re-detain the boys and file a supplemental petition (§  387).  Appellant had stopped participating in counseling and had failed to drug test on numerous occasions.  She also failed to maintain the family's apartment such that it posed health and safety hazards.    

            Appellant waived her rights and submitted on the supplemental petition as well as the department's recommendation to terminate family maintenance services and set a section 366.26 hearing to select and implement a permanent plan for both boys.  The court followed the department's recommendation and made the necessary orders.  It also granted appellant's request for a bonding study.  

            The bonding study did not support appellant's eventual claim that a continued parent/child relationship would be in each child's best interest such that termination would be detrimental (§  366.26, subd. (c)(1)(A)).  At most, the psychologist, who conducted the bonding study, determined that appellant shared a parent/child relationship with her older son. 

            By the time of the section 366.26 hearing, the department was recommending that the court find that each child was adoptable and order termination of parental rights.  Appellant offered her testimony to support her claim that she had maintained regular visitation and contact with her sons and that they would benefit from a continued relationship.  While the court agreed that appellant maintained regular visitation and contact with her sons over the course of their dependency, it did not find that termination would be detrimental to them.  Based on the undisputed evidence of the boys' adoptability, the court terminated parental rights.  

DISCUSSION

            Appellant reiterates her argument to the trial court, namely that termination of her rights would be detrimental to the children's best interests.  She claims the record supports such a finding under section 366.26, subdivision (c)(1)(A) based on her regular visitation and contact with the children and their bond with her.  She also questions the techniques used and conclusions reached in the bonding study.  As discussed below, we disagree.

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)  If, as in this case, the children are likely to be adopted, adoption is the norm.  Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child.  (In re Celine R. (2003) 31 Cal.4th 45, 53.) 

            Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)   It is the parent's burden to show that termination would be detrimental under one of the exceptions.  (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)  Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion.  (Id. at p. 1351.)  On review of the record, we find no abuse of discretion.

            In this case, it is undisputed appellant maintained regular visitation and contact with her children throughout their dependency.  However, the law required a greater showing than that and the evidence in this case did not compel the juvenile court to find termination would be detrimental to the children.

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