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In re William D.
Filed 6/3/13 In
re William D. CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
In re
WILLIAM D. et al., Persons Coming Under the Juvenile Court Law.
SOLANO
COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
JOSEPH D.
& MARY F.,
Defendants and Appellants.
A136667
(Solano County
Super. Ct. Nos. J40976, J40977)
The
juvenile court terminated the parental
rights of appellants Joseph D. and Mary F. to their minor children,
William and James D. Both parents
appeal,
challenging the juvenile court’s determination and alleging that Joseph’s bond
with the minors outweighed the benefits of adoption. (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i).) We
affirm the juvenile court orders.
FACTS
title="">
In
September 2008, appellants Joseph D. and Mary F. became the parents of William
D. A year later sibling James D. was
born. In July 2010, the parents left the
minors at a church nursery and disappeared for two hours. James was suffering from an infection on his
leg that required immediate hospitalization, which neither parent had
obtained. When they returned to the
nursery, Joseph and Mary were arrested and incarcerated for
Respondent
Solano County Health and Social Services (department) filed a juvenile
dependency petition in July 2011, alleging failure to protect and failure to
provide for support. (§ 300, subds.
(b), (g).) The department offered
evidence of general neglect. The parents
were homeless and living in their vehicle.
Mary appeared to have substance abuse or mental health issues. The minors were ordered to remain detained. Visitation and reunification services were
ordered for the parents. In September
2011, the juvenile court sustained the allegations of an amended juvenile
dependency petition on failure to protect, and sibling abuse grounds. (§ 300, subds. (b), (j).) In October 2011, the
the minors from the parents and set a March 2012
date for a six-month review hearing.
In advance of the scheduled
review hearing in March, the department recommended that the juvenile court
maintain the minors’ out-of-home placement, terminate reunification services,
and set a date for a permanency planning hearing. (§ 366.26.) It reported that the boys were bonded to
their foster parents and appeared comfortable in that home. The parents’ compliance with the requirements
of their case plan—attending parenting classes, participation in developmental
assessments for the minors, providing suitable housing, and successful
substance abuse testing—was incomplete, at best. They denied having substance abuse issues,
and initially refused to provide their home address to the department.
During
this six-month period, Joseph and Mary had weekly, three-hour supervised visits
with their sons. The parents attended
all visits in September 2011, although they were an hour late one week. They cancelled two visits in October 2011,
all November 2011 visits, two visits in December 2011, and one in January
because of claims of illness. Joseph
showed up for one visit, but left early because of Mary’s claimed illness. The visits that did occur were appropriate,
and the parents interacted well with the children. The social worker attended one visit that was
cancelled. She observed William kicking,
crying, and screaming “momma†when carried from the visitation area.
At
the six-month review hearing, the social worker offered additional evidence of
Joseph and Mary’s failures to complete parenting classes, to appear for drug
testing, or to participate in William’s individual education plan meeting. After Joseph finally provided a home address
to the department, the social worker made an unannounced visit in March. Claiming a contagious illness, the parents
would not permit her to enter the home, although they admitted that some
friends were with them at the time.
There was evidence that Mary was highly emotional, and that Joseph had
concerns about her mental health.
The
social worker also offered more visitation evidence. Joseph and Mary visited the minors on January
20 and 27, and February 3, 10, and 17.
They missed a late February visit because Joseph said he was sick. There were no March visits. Mary did not visit in April, again because of
illness.
At
the close of the review hearing, the juvenile court concluded that returning
the minors to their parents would create a substantial
risk of detriment to them. In May,
it found that Joseph and Mary did not substantially comply with their case
plan, but actively undermined it with claimed medical conditions that precluded
them from participating in that plan’s requirements. Based on clear
and convincing evidence, the juvenile court found that both parents failed
to participate regularly in, and make substantial progress in their
court-ordered treatment plan. It
terminated their reunification services, and set a date for a
F. v. Superior Court (July 30, 2012, A135556) [nonpub. opn.].)
At
this time, visitation was reduced to one two-hour visit per month. William and James were placed in a
County foster home with potential adoptive parents. In August, the department recommended the
termination of Joseph and Mary’s parental rights, and a permanent plan of
adoption for both minors at the upcoming permanency planning hearing. Mary did not visit with William and James at
all in May, June, and July. Joseph saw
the minors in May. At his June visit,
the minors did not seem to know Joseph at first although they warmed to him
later. James cried a bit when the visit
was over because he still wanted to play, but was happy once he was returned to
his foster parents. Joseph stopping
visiting William and James after this visit.
After three months in his foster home, William recognized his foster
parents as adults to seek out when he felt unsafe. Both minors were attached to their foster
parents.
Joseph
and Mary contested the department’s recommendation. At the September 19 hearing, there was
evidence that the parents had a good visit with the minors in August. The minors returned easily to their foster
parents when it was over, running to the foster parents, seemingly excited to
see them and hugging them. However,
William and James were physically ill the evening of the visit and again the
following morning. Joseph asked the
department to arrange a visit with the minors in September.
At
the close of the hearing, the juvenile court found the minors to be adoptable
and terminated Joseph and Mary’s parental rights. Visitation was terminated as detrimental to
the minors, although a final visit was to be arranged. Both parents appealed this determination. In September, the foster parents were granted
de facto parent status.
BONDING WITH FATHER
Joseph
contends that the juvenile court had no authority to terminate his parental
rights because the evidence showed that William and James shared a beneficial
bond with him that outweighed any benefit of adoption. Mary joins in this contention, asserting that
the termination of her parental rights was improper because of Joseph’s bond
with the minors. (See § 366.26,
subd. (c)(1)(B)(i).)
By
statute, a juvenile court may not terminate parental rights if it finds a
compelling reason that termination would be detrimental to the minors in a case
in which the parent maintained regular visitation and the minors would benefit
from continuing their relationship with their parent. (§ 366.26, subd. (c)(1)(B)(i).) At the permanency planning hearing, Joseph
argued that this exception applied. The
juvenile court disagreed, finding that he had substantially complied with the
visitation order but that he had not met the burden of showing that the minors
would benefit from continuing their relationship with him.
Thus,
Joseph’s challenge is one to the sufficiency of the evidence supporting the
juvenile court’s implied finding that subdivision (c)(1)(B)(i) of section
366.26 did not apply.
name="_ftnref7" title="">[7] (See In
re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Zachary G. (1999) 77 Cal.App.4th 799, 810-812;
50-53.) When reviewing such a challenge,
we review the whole record in the light most favorable to the juvenile court’s
finding to determine whether substantial evidence supported termination of
parental rights. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Rico W. (1986) 179 Cal.App.3d 1169, 1173.) We have no power to reweigh the evidence, but
determine only if there is sufficient evidence to support the juvenile court’s
finding. (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 585.) Once the juvenile court concludes—as
here—that the minors are adoptable, the parent bears the burden of proving that
the statute’s exceptional circumstances exist to bar termination of parental
rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 574; see
923-924.)
Courts
interpreting the language of subdivision (c)(1)(B)(i) of section 366.26 have
noted that its application must be determined on a case-by-case basis. In all cases, the interaction between a
natural parent and a child confers some incidental benefit to the
children. “The significant attachment
from child to parent results from the adult’s attention to the child’s needs
for physical care, nourishment, comfort, affection and stimulation.
. . . The relationship arises
from day-to-day interaction, companionship and shared experiences.†The exception applies only when regular
visits continue or a significant positive, emotional attachment between child
and parent has been developed. (
at pp. 575-576; see In re Jasmine D.,
supra, 78 Cal.App.4th at p. 1347.)
The relationship described in the statute must be a real parental relationship
that is of sufficient strength that the minors would suffer detriment if it
were terminated. (Id. at pp. 1348-1350.)
The
record on appeal provides substantial
evidence supporting the juvenile court’s finding that no exceptional
circumstances exist in this case.
William and James were bonded to their foster parents, rather than to
Joseph. The termination of his parental
rights would not be detrimental to the minors.
Thus, Joseph has not met his burden of proving that the statutory
exception barring termination of his parental rights applies. (See § 366.26, subd. (c)(1)(B)(i); see
also In re Autumn H., supra, 27
Cal.App.4th at p. 574; In re Brian
R., supra, 2 Cal.App.4th at pp. 923-924.)
MOTHER’S APPEAL
By
her own admission, Mary’s success on appeal turns on Joseph obtaining a
reversal of the order terminating his parental rights. As we affirm the aspect of the order
terminating his parental rights, we also affirm that part of the order terminating
her parental rights.
The
orders are affirmed.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
filed a notice of appeal after the juvenile court rendered its decision, but
before it issued its formal order terminating her parental rights. Her notice of appeal was premature, but we
deem it to have been filed immediately after the order issued. (Cal. Rules of Court, rule 8.104(d).) Joseph filed his notice of appeal three days
after the order terminating his parental rights. Thus, both appeals are timely.
name="_ftn2" title=""> [2]
All statutory references are to the Welfare and Institutions Code.
