In re Justin P.

Filed 6/26/08 In re Justin P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

UCLA School of Law Clinical Program, Patrick D. Goodman; Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Jose P. appeals from the order of the juvenile court that terminated his parental rights to seven-month old J. (Welf. & Inst. Code, 366.26.)[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The dependencys background

This is the fourth time this family has come before this court.[2] For purposes of background information, we repeat the facts set forth in our opinion filed on October 17, 2007 (Jose P. v. Superior Court, supra, B199573). Jose is married to J.s mother, L.P. The juvenile court terminated L.P.s and Joses parental rights to three older children in June 2006 in an earlier dependency that was triggered by the parents drug use, unsafe home, and mutual violence.

J. was born prematurely in early 2007 and was unable to suck. L.P. had tested positive for cocaine while she was pregnant with J. and again the day before the babys birth. Jose went to jail shortly after the birth.

The juvenile court sustained a petition under section 300, subdivision (b) alleging that Jose has a history of substance abuse that renders him incapable of providing regular care for J., endangers the childs physical and emotional health, safety and well-being, and creates a detrimental home environment that places the child at risk of physical and emotional harm and damage. Also, J.s siblings received permanent placement services because of Joses substance abuse. The court denied Jose reunification services on the grounds (1) it had terminated his reunification services in the earlier dependency proceeding; (2) it had terminated Joses parental rights to J.s siblings in the earlier proceeding; and (3) Jose had an unresolved history of chronic drug use. ( 361.5, subd. (b)(10), (11), & (13).)

Jose filed a petition for extraordinary writ review. We denied the petition. However, we pointed out to Jose that section 388 was available to obtain a modification of the juvenile courts previous orders if he regularly visited J. and tested clean for drugs. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 750.)

2. J.s placement with his prospective adoptive mother is a success.

Meanwhile, J. was placed with A. one month after his birth. In September 2007, the Department of Children and Family Services (the Department) reported that J. and A. had developed a strong mutual attachment. A. met all of the babys physical and emotional needs. J. was easily soothed and looked and smiled at A. when others held him. L.P. observed J. in A.s care and opined that A. cares for him as if he was her own child.

A. would like to adopt J. A.s adult children, who have also bonded with J., support A.s decision to adopt J. The Department strongly believed that . . . adoption with the childs current caregiver is the most appropriate plan for [J.]. J.s mother, L.P., indicated she would like J. to be adopted by A.

3. Joses visits are erratic.

A. reported that when Jose visited J., he was usually appropriate. Yet, while Jose made an effort to interact with, and took photographs of, J., the baby simply want[ed] to return to his foster mother.

Jose had not fully compl[ied] with visitation. He missed a visit on July 1, 2007. In August, L.P. explained that Jose had missed the prior three weeks of visits because he was hospitalized. L.P. explained that, on an unspecified date, Jose was taken to the emergency room after taking an overdose of painkillers for back pain, in what physicians opined was a suicide attempt. Although Jose missed three weeks of visits, he was only hospitalized for one day. Between July 1, 2007 and the September 27, 2007 hearing under section 366.26, Jose visited J. approximately four times.

4. The juvenile court terminates parental rights.

Jose did not appear at the section 366.26 hearing on September 12, 2007, or on September 27, 2007. The juvenile court found that Jose didnt visit enough. The court also found that there was no contact whatsoever with the six-month-old baby that would even come close to an exception to adoption. The court terminated parental rights. Jose appealed.

CONTENTION

Jose contends that the juvenile court erred in applying the parental-relationship exception to adoption found in section 366.26, subdivision (c)(1)(B)(i).

DISCUSSION

The Legislature has declared that the juvenile court must select adoption as the permanent plan if it finds that a child may not be returned to his or her parent and is likely to be adopted, unless the court finds that termination of parental rights would be detrimental to the child under one of the six delineated exceptions. ( 366.26, subd. (b)(1); In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)

Subdivision (c)(1)(B)(i) of section 366.26 sets forth the exception upon which Jose relies. That subdivision applies when the court finds, a compelling reason . . . that termination would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent bears the burden to overcome the statutory preference for adoption. To carry this burden, the parent must prove he or she occupies a parental role in the childs life resulting in a significant, positive emotional attachment of the child to the parent. [Citations.] (In re B.D. (2008) 159 Cal.App.4th 1218, 1234.)

However [t]he juvenile court may reject the parents claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

On appeal, [w]e determine whether there is substantial evidence to support the courts ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the courts ruling. [Citation.] The reviewing court must affirm a trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.] (In re B.D., supra, 159 Cal.App.4th at p. 1235.)[3]

Here, Jose failed to meet either prong of the exception to the legislatively preferred plan of adoption. Although initially, Jose visited J. frequently and behaved appropriately during the visits, Jose all but ceased visiting after July 1, 2007. It is undisputed that in the ensuing 13 weeks, Jose visited J. approximately four times. Jose argues that nothing short of hospitalization kept him from visiting the child. Yet, L.P. told the Department that Jose was hospitalized for one day. It must be remembered that Jose carried the burden to show applicability of the parent-relationship exception. Still, Jose did not appear at either of the section 366.26 hearing and did not offer any evidence of his hospitalization or a medical condition that prevented him from attending his visits with J., other than his attorneys assertion that Jose was still recovering from his hospitalization. There was thus ample evidence from which the court could handily find, as it did, that Jose didnt visit enough and that there was no contact whatsoever with the six-month-old baby that would even come close to an exception to adoption.

Turning to the second prong of the exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235.) This balance must be considered in the context of any limitations the juvenile court has placed on visitation. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) If severing the existing parental 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. [Citation.] (In re B.D., supra, at pp. 1234-1235, citing In re Autumn H., supra, 27 Cal.App.4th at pp. 573-574.)

Jose must demonstrate more than frequent and loving contact (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or that he and the child find their contact pleasant. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Jose had the obligation to show that the benefit to J. of their relationship outweighed the benefit the child would gain in a permanent home with an adoptive parent. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.)

Here, the record contains no evidence that severing contact with Jose would be detrimental to J. The baby has spent precious little time with Jose in his short life. He was removed from Joses custody a month after his birth. The baby never resided with Jose. Rather, A. helped the child recover from the effects of his premature birth. Nor does the evidence show that J. enjoyed his visits with Jose. By contrast, it is clear from this record that J. is attached to A. and her family and his needs are being met by them. In short, Jose has failed to carry his burden to show the exception to adoption applies in this case.

Citing a bonding and attachment study, Jose argues that there is a need on the part of the minor to keep his father in his life. But, a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent[s] results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Jose has attended to none of these needs. A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Hence, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, at p. 1350.) This is not such a case.

Finally, Jose argues that [a]doption is far from the answer to a freed childs problems. The benefits of such a plan can be, and often are, illusive and imaginary. This argument overlooks the Legislatures declared preference for adoption. ( 366.26, subd. (b)(1).) Any disagreement with this stated preference would be more appropriately brought to the Legislature.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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

[2] The previous appeals are: B184876, consolidated with B185887, and B192209. Most recently we denied Joses petition for writ of extraordinary review in Jose P. v. Superior Court (Oct. 17, 2007, B199573 [nonpub. opn.]). Accordingly, we grant the request of county counsel that we take judicial notice of that opinion. (Evid. Code, 452, subd. (d)(1).)

[3] Although there is language in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, indicating that that relevant standard of review is for abuse of discretion, [t]he practical differences between the two standards of review are not significant. [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . .  Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . .  [Citations.] (Ibid.)