In re Savanna R.

Filed 10/12/06 In re Savanna R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

John L. Dodd & Associates, Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Beth L. Lewis, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Samuel R. (father) appeals from the judgment terminating parental rights to his two children, daughter Savanna (born in February 2000) and son Frederick (born in July 2002). (Welf. & Inst. Code, § 366.26; all statutory references are to this code unless noted.) He contends the juvenile court erred in failing to apply the “continuing benefit“ exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) For the reasons discussed below, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2004, a social worker with the Orange County Social Services Agency (SSA) took Savanna and Frederick into protective custody after their mother, Kelly L.,[1] left the children in an unsafe and unsanitary mobile home with a paternal uncle who had a history of methamphetamine-related offenses, and later the same day left Savanna unattended in a bathtub. Samuel, the children’s father, had a history of drug-related criminal behavior and had been in a local jail since May. Samuel and Kelly had not married, but had lived together until their separation in February 2004. Samuel informed SSA the children lived with him off and on before his latest incarceration. Samuel also had two older children, ages 20 and 17. He had been their primary caretaker until his 1999 arrest on drug charges. SSA had 10 contacts with this family, and both of these children spent time in juvenile hall.

SSA filed petitions alleging the children came within the juvenile court’s jurisdiction. No suitable relatives being available, the children were placed with Belinda G. on September 3, 2004. In December, they were moved to the home of Peter and Dolores B.

In September 2004, the parties stipulated to the allegations in the petitions (§ 300, subd. (b)), and the court found jurisdiction and ordered SSA to prepare a case plan, including reunification services. The case plan allowed Samuel a weekly visit from his children while in local custody. He had three monitored visits with the children in jail.[2] By the date of the six-month review, he had been transferred to prison with a parole date in June 2005. He declined prison visits, choosing instead to write letters. Beginning in January or February 2005, the social worker arranged monthly telephone calls.[3]

Samuel was paroled from prison on June 10, 2005, but missed a scheduled appointment with the social worker. He subsequently appeared at the courthouse and SSA’s offices without an appointment. Because Samuel had no place to live, SSA referred him to homeless shelters, but at the end of the month his whereabouts were unknown. Savanna, informed of her father’s release, did not request to see him.

Samuel resurfaced in early September. He told the social worker he was working odd jobs and living in a van parked in front of a friend’s house. He requested more time to become established. SSA arranged weekly visits with the children at a park near his friend’s home. Before the first visit, Savanna was excited to see her father. He arrived early and brought a box of new toys. He took photos and the children seemed happy to play with him on the playground. He told them numerous times he loved and missed them. The monitor reported the children seemed very comfortable with him. Subsequent visits followed the same pattern. Samuel always arrived early, the children seemed delighted to see their father, they hugged each other, played or ate together, and at the end of visits they hugged and kissed again. According to the monitor, Samuel acted appropriately and interacted well with his children.

At the 12-month review, the parties stipulated to terminate reunification efforts and the court scheduled a section 366.26 hearing. The court authorized funds to continue Samuel’s drug testing (all tests had been negative) and maintained the weekly monitored visits with his children. At a progress review in late November, the court authorized increased visits with the children if their therapist agreed. The therapist recommended against increasing visits, however.

At the section 366.26 hearing in January 2006, the social worker recommended termination of parental rights. The foster parents sought to adopt and their home had been approved.[4] The social worker acknowledged Samuel loved the children and had participated in various programs in prison and afterwards but he still lived in a friend’s van and could not provide the stability his children required. Savanna’s court appointed special advocate (CASA) reported Savanna told her she felt safe in the B.’s home, she loved Mrs. B., who she called “Nana,” and she desired to call the foster parents “mom and dad.” The B.’s met with Samuel and a mediator to discuss post-adoption visits and stated a willingness to continue contact between the children and their biological parents.

The parties submitted the matter on SSA’s reports. The court found the children were adoptable and that termination of parental rights would not be detrimental to the children. Samuel had a “pleasant” relationship with the children and they enjoyed contact with him, but his visits had not been “sufficiently consistent” and he had “just never, really, been a parental figure in this period to these children.” The court found their relationship with Samuel was insufficient to outweigh the benefit the children would receive in a permanent, stable home.

II

DISCUSSION

Samuel contends the juvenile court erred in finding the continuing benefit exception did not apply to prevent termination of his parental rights. (§ 366.26, subd. (c)(1)(A).) Section 366.26, subdivision (c)(1)(A), authorizes the juvenile court to avoid the termination of parental rights if it finds “‘a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Reviewing the claim under the appropriate substantial evidence standard, we must disagree. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Once the court terminates reunification services, the parent bears the burden of proving that the child will suffer detriment if parental rights are terminated. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Section 366.26, subdivision (c)(1)(A) “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Id. at p. 1348.) Rather, the exception applies only if “the relationship 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “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 parent’s rights are not terminated.” (Ibid.) Thus, “the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.)

Samuel fails to show his relationship with his children outweighed the benefits the children would gain in a permanent home with the B.’s.[5] The record does not reveal what role Samuel played in the children’s lives before the detention, but at the time of the section 366.26 hearing, the children had not had regular, daily contact with Samuel for approximately 20 months. Samuel started late with visits after release from prison and had not progressed beyond one hour of monitored visitation. Admittedly, the children were excited to see Samuel and played enthusiastically with him on the playground. They appeared comfortable and were affectionate with him. Samuel acted appropriately and interacted well with his children. But neither child asked about him or seemed upset when visits ended.

The children had lived with the B.’s for over a year and had thrived in their care, overcoming aggressive behaviors that had caused the failure of previous foster placements. The foster parents provided a safe and stable home. The social worker reported the B.’s “are very capable of taking care of all of the children’s psychological, educational, medical, social, and financial needs at this time. They provide them with individual attention, play with them, and read to them. They have a beautiful home with a yard and a swimming pool to play in. Their extended family, church friends, and neighbors are supportive of this adoption and are available for help if needed. In addition, the prospective adoptive mother is a stay-at-home mom and is very involved with the children’s school activities.”

Significantly, when Savanna was asked how she felt about adoption with the B.’s, she said she felt safe in their home. The social worker had previously reported Savanna was “a beautiful, bright, intelligent, and independent child, but she” did “not open up or trust people easily.” Savanna stated she loved “Nana,” which is how she referred to Mrs. B. Savanna’s CASA reported in January 2006 that “[i]n the last 90 days, I have noticed a change in Savanna. Overall, she appears to be happier, more confident, secure and affectionate. The undersigned has observed a noticeable decrease in her tantrums and moodiness. In the past, she has often focused on making gifts/cards for her mother. Now Savanna asks to make cards/gifts for her Nana (foster mother) and Papa (foster father). On the December 14, 2005 visit, she told me she wanted to call her foster parents ‘mom and dad.’”

The maternal grandmother, who had visited the children regularly and monitored visits between Kelly and the children, reported she knew “the children are well taken care of by the foster parents, and they have been providing so well for them.” She agreed the children would benefit if the B.’s adopted them and supported this result if they could not return to their mother. The grandmother stated Frederick, who was too young to make a statement, “openly show[ed] affection, and [had] become attached to his foster parents.”

In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) and

In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), illustrate the compelling evidence necessary to find the continuing benefit exception. In Jerome D., the child “seemed lonely, sad, and the . . . ‘odd child out’” in his placement. (Jerome D., at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother “shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The court concluded that keeping parental rights intact would prevent Jerome’s “position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained Mother’s children.” (Id. at p. 1208.)

In Amber M., the court reversed where a psychologist, therapists, and the court-appointed special advocate believed a “beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption.” (Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a “strong primary bond” with their mother, and the younger child was “very strongly attached to her.” (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)

Both cases presented convincing evidence the child would benefit from continuing the parental relationship, including evidence of substantial visitation and expert testimony from therapists. Here, the evidence pales in comparison. We cannot say the court abused its discretion in concluding the relationship between Samuel and the children outweighed the children’s interest in a stable, permanent home.

Samuel relies on In re S.D. (2002) 99 Cal.App.4th 1068 and In re Brittany S. (1993) 17 Cal.App.4th 1407. These cases stand for the unremarkable proposition that parental incarceration does not justify juvenile court jurisdiction or relieve SSA of offering an adequate reunification plan. At this late stage there is no issue concerning jurisdiction or the adequacy of reunification services. Based on our review of the record, we conclude substantial evidence supports the juvenile court’s finding the children’s interest in a stable and permanent home offered by adoption outweighed continuing their parental relationship with Samuel.[6]

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] Kelly has not appealed. Throughout the case, she had difficulty following through on reunification activities due to fatigue and lack of ability to focus. About halfway into the reunification period, she was diagnosed with lymphoma and attention deficit disorder. Previous intermittent drug testing had been negative, but Kelly tested positive for methamphetamine in March 2005. She explained she used the drug because she felt weak and hoped it would make her feel better. She did not provide the results of any subsequent drug tests, her visitation and contact with the children dropped off, and she eventually abandoned efforts to comply with her case plan in advance of the 12-month review.

[2] At the first encounter, Samuel was “very emotional” and cried during the visit. Both Samuel and the children expressed love for each other and the children appeared sad when the visit ended. A week later, Savanna refused to visit because of her father’s emotional reaction the previous week. During a second visit the following week, the monitor admonished Samuel after he told Savanna to tell their mother he wanted their family to reunite. At the third visit, Frederick scratched and bit the monitor and told his father he hated him.

[3] During the first call, Savanna seemed very happy to speak to her father, and asked when he would be getting out. Samuel said he loved and missed her. Frederick said “hello” but was too young to have a conversation. SSA’s reports do not detail subsequent calls.

[4] The foster parents had not originally intended to adopt but changed their minds in June 2005 “because they ha[d] been told that permanency is what is best for the children. They cannot return to their biological family, and being adopted will provide them with the most permanency in their life.”

[5] We assume Samuel’s contact while in jail (letters, phone calls) and weekly visits with his children after he resurfaced in September until the section 366.26 hearing in January qualified as “regular visitation and contact with [his] children” within the meaning of section 366.26, subdivision (c)(1)(A).

[6] The foster parents agreed to an “open adoption and they are willing to work with the parents in order to continue some type of contact between the children and their parents.” Mrs. B. reported she and Samuel had agreed that if the children were adopted, they would “work out visits” and she “would not deny him . . . seeing the kids.”