In re Gary D. and Daniel R.

Filed 8/21/06 In re Gary D. and Daniel R. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Carlos R. (father) and Lorena W. (mother) appeal from orders denying their motions for modification under Welfare and Institutions Code section 388^[1] and terminating their parental rights to six-year-old Gary D. and two-year-old Daniel R. under section 366.26. Father argues (1) the court should have ordered a bonding study before terminating parental rights; (2) the trial court abused its discretion in denying his motion for modification, which sought additional reunification services; and (3) the court improperly delegated the decision of when to terminate visitation. Mother argues that their parental rights to Daniel should not have been terminated because father had had regular visitation and contact and Daniel would benefit from continuing the relationship with father. We affirm.

BACKGROUND

Mother and father are the natural parents of Daniel. Gary is mother's child from a previous relationship, but father has provided care and support for him. Mother and father had a stormy relationship and father moved out of the family home. Although father has never been convicted of a criminal offense, he has been arrested for domestic violence against mother and there have been reports that he and mother hit each other in front of the children. Mother has a long history of drug abuse.

In December 2004, mother left the children with Lisa C., a licensed childcare provider. Mother called her later in the day to say she had been arrested and would be in custody for a long time. Child Protective Services (CPS) detained the children in Lisa C.'s home and filed a petition alleging that the children were in danger due to mother's drug abuse and the parents' history of domestic violence. (§ 300, subds. (b) & (g).) After father and mother submitted on the petition based on the social worker's report, the court declared the children dependents of the juvenile court, removed them from parents' custody, placed them with Lisa C., and ordered that parents comply with a reunification plan that included drug treatment, anger management counseling and parenting classes. Because Daniel was less than three years old, the presumptive reunification period was six months.

At the time of the six-month status review hearing in July 2005, the children were doing well in Lisa C.'s home. Neither parent had made significant progress in their case plans. Visitation had been sporadic and both father and mother had tested positive for drugs. Mother's whereabouts had been unknown until she was arrested in July 2005, at which point she had expressed remorse and asked to get into a program to reunify with her sons. Father was expelled from a drug treatment program for lack of participation and had similarly failed to attend a domestic violence program or individual counseling. He had begun visiting Daniel in May 2005, but visitation was suspended due to his failure to participate in drug testing. Father claimed that visitation had been difficult because of his work schedule and Lisa C.'s inflexibility. The court terminated reunification services and set the case for a permanency planning hearing under section 366.26.

Mother and father filed petitions under section 388 to modify the order terminating reunification services. Father's petition stated that he had enrolled in an anger management program in November 2005, that he had completed a parenting program in September 2005, that he had attended 14 out of 16 Narcotics Anonymous/Alcoholics Anonymous meetings and had tested negative for drugs between July and November 2005. Mother's petition averred that she had completed a parenting program, had tested clean and would shortly complete an alcohol/drug abuse program. Father requested a bonding study as part of his relief under section 388.

The trial court denied the section 388 petitions, concluding that there were no changed circumstances warranting a modification of the prior order and that it would not be in the children's best interests to extend the reunification period. It found that both children were adoptable and ordered parental rights terminated.

DISCUSSION

Bonding Study

Section 366.26 provides that the statutory preference for adoption is overcome and parental rights should not be terminated when a parent has "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 bears the burden of establishing that the exception exists. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Father argues that he was deprived of due process because the court denied his request for an independent bonding study in conjunction with his section 388 motion, which would have helped him establish that Daniel would have benefited from continuing their relationship.^[2] We reject the claim.

A juvenile court has the discretion to order a bonding study, but is not obligated to do so as a precondition to terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1167.) Bonding studies conducted after the reunification period has ended will frequently require a delay in permanency planning, and the Legislative scheme does not contemplate such last minute efforts to postpone placement. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)

The court did not abuse its discretion by denying a request for a bonding study that was made well after reunification services had been terminated. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.) Although there was some evidence that the children enjoyed their visits with father, both were quite young and there is no indication that their relationship with him was the type of significant, positive emotional attachment necessary to defeat adoption as the permanent plan. (See In re Zachary G., supra, 77 Cal.App.4th at pp. 811-812.) "When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent[-]child relationship, the court should order adoption." (Id. at p. 811.)

"There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order. . . . [A]lthough the preservation of a minor's family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody . . . . Family preservation ceases to be of overriding concern if a dependent child cannot safely be returned to parental custody and the juvenile court terminates reunification services." (In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340.) The type of parent-child bond the court may rely upon to avoid a termination of parental rights "does not arise in the short period between the termination of services and the section 366.26 hearing." (In re Richard C., supra, 68 Cal.App.4th at p. 1196.)

Denial of Petition for Modification

Father argues that the trial court abused its discretion when it denied his motion to modify the prior order terminating reunification services. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) We disagree.

A motion for modification of a prior order under section 388 requires proof by a preponderance of the evidence that circumstances have changed and that a modification would be in the best interests of the children. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court in this case reasonably determined that it would not be in the children's best interests to order further reunification services when the children were well cared for in the home of their prospective adoptive parent and when father had only belatedly taken steps to alleviate the problems leading to the dependency.

Delegation of Decision to Terminate Visitation

After terminating parental rights, the court ordered that the parents would have monthly visitation but delegated to CPS the decision of when visitation would cease. ~(RT 51)~ Father argues that it is the court's statutory duty to determine a parent's entitlement to visitation and contends this duty may not be delegated to the social worker. We disagree.

Father relies on cases discussing a court's attempt to delegate visitation issues to a third party prior to the termination of parental rights. (E.g. In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164, superseded by statute as stated in In re S.B. (2004) 32 Cal.4th 1287, 1295-1296.) Once parental rights have been terminated, however, there is no requirement that visitation be ordered and no prohibition to allowing the social services department to determine whether visits are appropriate. CPS had exclusive custody over the children pending adoption and was entitled to determine the point at which mandatory visitation would cease, as it ultimately would once the adoption was completed. (See § 366.26, subd. (j).)

Mother's Appeal

Mother argues that the order terminating father's parental rights to Daniel should be reversed because he had regular contact with the children and because it would be beneficial to Daniel to continue the relationship with father. (§ 366.26, subd. (c)(1)(A).) She does not raise any independent arguments regarding her own relationship with Daniel, but reasons that if father's rights are reinstated, it would be in Daniel's best interests to have hers reinstated as well. (See In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.) Father did not carry his burden of establishing that the parental relationship exception applied, and he has not otherwise established that the order terminating rights should be reversed. Mother's claim must fail as well.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

William Rogers Gorenfeld, under appointment by the Court of Appeal, for Defendant and Appellant Carlos R.

Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant Lorena W.

Stephen Shane Stark, County Counsel, Laura Ornalez, Deputy County Counsel for Plaintiff and Respondent, Santa Barbara County Child Welfare Services.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] We construe father's notice of appeal liberally and reject CPS's contention that he is limited to challenging the order terminating his parental rights under section 366.26.