In re Darrell H.

Filed 8/8/07 In re Darrell H. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Amanda B. appeals an order terminating her parental rights to her child Darrell H. Among other things, she contends that the beneficial relationship exception precluded termination of parental rights. We affirm.

Background

On March 11, 2003, the Contra Costa County Children and Family Services Bureau (CFS), filed a petition alleging that Darrell H., born in September 2001, was a minor within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j).[1] The petition (and an amended petition) alleged that Amanda B. (Mother) had repeatedly failed to provide adequate care for Darrell by leaving him with various people without making arrangements for his care or providing basic supplies. Darrell was ordered detained on March 12, 2003, at the age of 18 months, and he was placed with a maternal uncle and aunt, K. and S. B.

In May 2003, the juvenile court adjudged Darrell a dependent child of the juvenile court under section 300, subdivisions (b), (g), and (j). Mother did not appear at the hearing; the record reflects no explanation for her absence.

A November 2003 CFS status review report recommended that the juvenile court terminate reunification services and set a section 366.26 hearing. The report stated that Mother had not made progress toward compliance with her case plan. Although Darrells caretakers had made all weekends available for visitation, Mother had only visited four times since March 2003. Further, Mother attended only one out of four meetings with a housing specialist arranged by CFS. At the six-month review hearing in March 2004, the juvenile court terminated reunification services to Mother. Mother did not appear at the hearing, and her counsel could provide no explanation for her absence.

At a July 2004 section 366.26 hearing, the juvenile court followed a recommendation by CFS to appoint K. and S. B. as Darrells legal guardians, vacate the dependency, and dismiss the petitions. The CFS report stated that K. and S. B. chose guardianship because they want the mother to get her life together.

In March 2006, Mother filed a request under section 388 that Darrell be returned to her custody with a family maintenance plan. She did not make any request regarding visitation. The CFS opposed Mothers request, reporting that, According to [S. B.], [Mother] has been out of contact with them and failed to provide an address and telephone number for long periods of time. [Mother] had a history of missed visits during the first six month[s] of Family Reunification and over the past 3 years she visited approximately 10-15 times.

In May 2006, Darrells attorney filed her section 388 motion, requesting that the juvenile court set a section 366.26 hearing to terminate parental rights and begin adoption proceedings. The request cited as a changed circumstance that the guardians now wished to adopt Darrell.

At a combined hearing in June 2006, the juvenile court denied Mothers section 388 motion, granted Darrells motion, and set a section 366.26 hearing for October 2006. Mother did not make any request regarding visitation at the June 2006 hearing.

The CFS section 366.26 report dated October 5, 2006, recommended that the court terminate parental rights and find adoption to be the appropriate permanent plan for Darrell. On the issue of visitation, the report stated, The mothers and the alleged fathers visits with Darrell have been sporadic. The most recent visit occurred on September 16, 2006. The Guardians had arranged a birthday party for Darrell and invited the mother and the father, both of whom attended the party. Prior to this visit, the mother had not visited in a year. According to the caretakers, the mother called approximately three times in the past year to ask how Darrell was doing.

At the October 2006 section 366.26 hearing, Mother testified that she has three children: a seven-year-old daughter, Darrell, who was five at the time of the hearing, and a two-year-old son. She visited Darrell three or four times in the last six months and spoke to him twice a week. Her daughter also spoke to Darrell twice a week, and they lived together in the same house for eight months when Darrell was a baby. During visits, Darrell is affectionate with her and his siblings. Mother did not testify that the guardians had in any way prevented her from visiting with Darrell. Mother did not present any other witnesses.

The juvenile court found by clear and convincing evidence that it is likely Darrell will be adopted. The court found that the parental relationship exception to adoption was inapplicable because there has not been such regular visits and contact to have developed a significant positive emotional attachment between Darrell and his biological mother.[] . . . to visit a child three to four times [in six months] is not so significant that you could develop that bond, nor is there evidence that the bond between Darrell and his mom outweighs the benefit of adoption.[] The evidence is that Darrell looks to his current caregivers as his parents, the people that he receives support from. So I dont find that the parental relationship outweighs his well-being in getting a permanent home with the current family.[] Furthermore, I dont see sufficient evidence of a sibling relationship to outweigh the benefit. Hes never lived with [his brother]. Hes only lived with [his sister] for a short period of his life. And while he may enjoy seeing her, he now sees the kids in his current caregivers family as his siblings. The court terminated the parental rights of Mother and Darrells father.

Discussion

I.                    Delegation of Visitation

Mother argues that the juvenile court improperly delegated the visitation issue to the guardians, citing section 366.26, subdivision (c)(4)(C) and, as a result, the juvenile court failed to ensure that she had adequate opportunity to visit Darrell.[2]

When the juvenile court appointed K. and S. B. as guardians in July 2004, the court ordered visitation, directing parents to have reasonable visitation (arranged by guardian). In In re S.B. (2004) 32 Cal.4th 1287, 1296, the Supreme Court held that a juvenile court may delegate to a guardian the determination of whether visitation is to occur. There, the juvenile court ordered the guardians to make all decisions concerning parental visits. (Id. at p. 1292.) Mother contends that section 366.26, subdivision (c)(4)(C) supersedes In re S.B. and prohibits delegation of the visitation issue. But even assuming that the juvenile court order delegated the visitation issue to the guardians, and further assuming that the court had a sua sponte duty to modify the order after section 366.26, subdivision (c)(4)(C) became effective in January 2005, Mothers argument clearly fails because there is no evidence that the guardians failed to provide adequate opportunities for visitation.[3]

The only evidence is that the guardians made Darrell available to Mother for visitation on any weekend, and that Mother visited approximately 10 to 15 times during the three years preceding March 2006 and only three to four times in the six months preceding the October 2006 section 366.26 hearing. While Mothers counsel asserts on appeal that the guardians interfered with access to visitation, she does not provide any citation to evidence in the record supporting that assertion and in our careful reading of the entire record we found none. The only reasonable inference that can be drawn from the evidence is that regular visitation was made available to Mother and she elected not to take advantage of it.

This case is distinguishable from In re Hunter S. (2006) 142 Cal.App.4th 1497. There, the juvenile court directed CFS to arrange visitation, but visitation did not occur because the minor refused to see his mother. The court failed to enforce the visitation order despite the fact that the mother consistently raised the issue for over two years. (Id. at p. 1505.) The Court of Appeal concluded that the court had erred in delegating to the minor virtually complete discretion to veto visitation, and indeed all contact, with his mother. (Ibid.) The effect of the juvenile courts inaction was to deprive the mother of an opportunity to establish the kind of relationship that might have prevented termination of parental rights. (Ibid.) Here, there is not only no evidence that Mother was ever denied visitation by the guardians but there is no record of Mother complaining to the court that she was not being provided an opportunity for reasonable visitation.[4] In fact, with no explanation for her absence, Mother did not appear at two hearings.

II.                 Statutory Exceptions to Termination of Parental Rights

A.                 The Beneficial Relationship Exception

Mother contends that the juvenile court erred in finding inapplicable the beneficial relationship exception.

In general, if the court finds that a child is adoptable at a section 366.26 hearing, it must select adoption as the permanent plan; to that end, it must terminate parental rights. ( 366.26, subds. (b)(1), (c)(1).) This rule is subject to six statutory exceptions. ( 366.26, subds. (c)(1)(A)-(c)(1)(F).) The beneficial relationship exception applies 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)(A).) The parent has the burden of proof that the beneficial relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) We review the juvenile courts finding that the exception is inapplicable under the abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)[5]

At the time of the section 366.26 hearing, the childs interest in a stable and permanent placement is paramount. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The child has a compelling right to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] Adoption is the Legislatures first choice because it gives the child the best chance at such a commitment from a responsible caretaker. (Ibid.) [A]doption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the childs need for a stable and permanent home that would come with adoption. (Id. at pp. 1348-1349.)

Mother argues that Darrell would benefit from a continued relationship with her because their visits were warm and affectionate and because she kept in regular contact with Darrell by telephone. But the evidence in the record shows that Mother did not take advantage of the opportunity to regularly visit with Darrell. Mothers repeated representation on appeal that the guardians limited her contact with Darrell is specious at best. She offers no record citation. And the evidence is to the contrary: the guardians made Darrell available for visitation any weekend and it was Mother who failed to maintain contact.

Even if Mother had maintained regular visitation with Darrell ( 366.26, subd. (c)(1)(A)), it would be insufficient to establish a basis for the beneficial relationship exception. A parent who has failed to reunify may not prevent termination of parental rights merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Interaction between natural parent and child will always confer some incidental benefit to the child, but the exception applies only when the relationship with a natural parent promotes 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. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Similarly, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, held that parents frequent and loving contact with their children was not enough to establish the necessary benefit from continuing the relationship, when the parents had not occupied a parental role in relation to them at any time during their lives.

At the time of the section 366.26 hearing, Darrell was five years old. He was removed from Mothers custody at the age of 18 months. There is no evidence that Mother has acted in a parental role since then. As In re Jasmine D. held, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

The beneficial relationship exception permits the juvenile court to choose an option other than adoption in exceptional circumstances. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Mother has not shown such circumstances. The juvenile court did not abuse its discretion in finding the section 366.26, subdivision (c)(1)(A) exception inapplicable.

B.                 The Sibling Relationship Exception

Another statutory exception to the rule that the court must select adoption as the permanent plan for an adoptable child at a section 366.26 hearing applies when [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)

To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) In In re L.Y.L., the siblings lived together for 28 months and were still living together at the time of the section 366.26 hearing. (Ibid.) Nevertheless, the court held that the mother had not sustained her burden of proof that termination of her parental rights with respect to one of the siblings would substantially interfere with a sibling relationship because there was no evidence that the minor other than being sad, would suffer detriment if the relationship ended. (Ibid.)

In this case, the juvenile court concluded that there was insufficient evidence of a sibling relationship that could outweigh the benefit of adoption. The court stated, Hes never lived with [his brother]. Hes only lived with [his sister] for a short period of his life. And while he may enjoy seeing her, he now sees the kids in his current caregivers family as his siblings. Darrell lived with his sister for eight months when he was a baby but had not resided with her after being removed from Mothers custody; he had the same minimal visitation with his siblings that he did with Mother. Although Darrells relationship with his siblings likely conferred some emotional benefit, the juvenile court was obligated to balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) The court did not err in finding the sibling relationship exception inapplicable.

Disposition

The order is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

[2] Section 366.26, subdivision (c)(4)(C), effective January 1, 2005, provides, The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child. (Stats. 2004, ch. 810, 5.)

[3] Because Mothers argument fails due to the absence of evidence that she had inadequate opportunities for visitation, we need not and do not express any opinion on Mothers contention that section 366.26, subdivision (c)(4)(C) supersedes the holding in In re S.B., supra, 32 Cal.4th 1287 that a juvenile court may delegate the visitation issue to a guardian.

[4] Mother contends in passing that the error was structural and requires reversal, but she cites to no authority supporting the proposition that the type of error at issue requires reversal without a showing of prejudice. (Cf. In re Hunter S., supra, 142 Cal.App.4th at p. 1504 [If a parent is denied [procedural safeguards such as visitation] through no fault of her own, her due process rights are compromised] (emphasis added).)

[5] In In re Autumn H. (1994) 27 Cal.App.4th 567, the Fourth District applied the substantial evidence standard in reviewing a juvenile courts finding that the beneficial relationship was inapplicable. We would affirm the juvenile courts termination order under either standard.