In re X.C.

Filed 5/16/07 In re X.C. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. George Orndoff, Judge.

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, County Counsel, and Laura J. Bakker, Deputy County Counsel, for Plaintiff and Respondent.

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Sergio C. appeals from an order terminating his parental rights (Welf. & Inst. Code,  366.26) to his son, X.^[1] Appellant contends the court erred by rejecting his claim that termination would be detrimental to X. based on their parent/child relationship. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

In July 2005, 18-month-old X., wearing only a soiled diaper, was found crawling on a public street, unsupervised. When it appeared he might crawl into traffic, a stranger picked him up and another person called the police. At the time, X. had multiple abrasions, scratches, and bug bites across his body. He was also extremely filthy; dirt was embedded in his skin and feces were caked on his buttocks. Once appellant and the childs mother were located, the police arrested them on child endangerment charges. Respondent Kings County Human Services Agency (the agency) in turn detained X., along with his five older siblings, and initiated these dependency proceedings. Underlying the abject neglect X. and his siblings suffered was their parents drug abuse and the resulting chaos of their lifestyle. Notably, only a month before X. was born, the parents regained custody of the five older children, who had been juvenile court dependents for approximately two years as a result of the parents long-term drug abuse.

In August 2005, the Kings County Superior Court adjudged X. and his siblings dependent children of the court and removed them from parental custody. Due to the large size of the family, the siblings could not be placed together. As of October 2005, the agency placed X. in a separate foster home, where he has remained ever since.

As part of its August 2005 disposition, the court also ordered reunification services for each parent. Relevant to this appeal, the court-ordered service plan included weekly, one-hour supervised visitation.

Due to the parents incarceration, they saw each of their children in effect every other week. According to jailhouse visitation rules, only three children could visit a detainee each week. Thus, the children rotated their weekly visits with each parent in groups of three, with one group visiting one parent while the other group visiting the other parent. Overall, those visits were good. However, on at least two occasions, appellant had to be redirected in terms of his conversations with the children. Once, he began telling the children the reason he and the mother were in jail was all lies. Another time, he described how things worked in the jail. The parents remained in custody through September 2005.

Following their release, the parents were at best in partial compliance with their service plans. As to visitation with their children, they were somewhat consistent. Apparently, the parents failed, on more than one occasion, to let their social worker know they would not be attending a visit. This led to disappointment and tears on the childrens part. As a result, the agency required the parents to call ahead on the day of their visits to reconfirm their attendance.

During visits in October and November 2005, the mother appeared to be distant with her children and interacted very little with them. She demonstrated very poor parenting skills in that she chose to observe and not participate. Sometime later, she showed a marked improvement in her interactions. Meanwhile, appellant positively interacted with all of his children by engaging them in physical play, homework and parenting for inappropriate behaviors.

Initially, the agency treated X. as being part of a sibling group. As a result and despite the parents lack of compliance and progress in their service plans, the agency recommended in a February 2006 status review report that the court continue reunification efforts for the entire family. The childrens counsel, however, objected and requested a contested hearing.

The agency investigated the matter further and submitted an addendum report in late March 2006. In it, the agency recommended that because none of the older children were placed with X. and there was no likelihood that any of them would be placed with him, there was no basis for terminating services for the older children. However, in X.s case, despite the fact he was part of a sibling group, he had not formed an attachment to or bond with his older siblings. Consequently and given that he was under the age of three when he was detained, the agency recommended the court terminate reunification efforts as to X. and set a section 366.26 hearing in his case (setting order).

Following a contested, evidentiary hearing in early April 2006, the court adopted the agencys recommendations. Having issued its setting order, the court also reduced the parents visitation from once-a-week to once-a-month. Appellant last visited with X. the following month in May 2006.

In advance of the section 366.26 hearing, a social worker with the California Department of Social Services (CDSS) prepared a report for the court including a permanency planning assessment. The CDSS social worker, Jenny Young-Cortez, recommended the court find X. was likely to be adopted and order the termination of parental rights.

According to the CDSS assessment, X. was in good physical and developmental health. He appeared to be happy and thriving in his foster care placement. CDSS had identified the foster parents as X.s prospective adoptive parents in that they were committed to adopting him and he appeared to have a close, nurturing and loving attachment to them.

Relevant to this appeal, Young-Cortez reported on the history of contacts between X. and his family. She commenced by acknowledging that she had never observed any visits between X. and appellant, his mother or his siblings. However, she had access to the agencys case record narratives regarding the familys supervised visits as well as its court reports. In addition, she had discussions with the current agency social worker who was assigned to X.s case after the setting order. Young-Cortez summarized the narratives, case reports and her discussions with the current agency social worker in her report.

Apparently, most of the narratives until April 2006 contained few specific references to X.s interaction with either of his parents. The narratives were of the entire familys visits. Those that did specifically mention X. and his parents described pleasant experiences. A January 2006 narrative characterized the mother and X. as having a very good time drawing and writing on the chalkboard. A narrative from the following month stated the mother helped X. during a family game. As for appellant, a November 2005 narrative stated he took X. for a ride on his bicycle which the child enjoyed. A December 2005 narrative stated X. asked for appellant when he arrived and did not appear interested in being with his mother.

After the setting order, two visits were scheduled for April 2006. The mother did not show up for the first visit and was so late to the second visit that X. had already gone home. Appellant attended each of these visits but the narratives did not disclose any interactions between him and X. At an early May visit, the mother appeared distant towards and overwhelmed by the children. Appellant did not attend that visit, as he was apparently once again in jail. The agency scheduled a second visit in May at which the mother wished to hold X. but he wanted to run around and play. Appellant attended this visit, which was apparently his last, but the narrative for the visit did not indicate any interaction between him and X.

Young-Cortez also recited the current agency social workers summary of the contacts he had witnessed between X. and his parents. Their interactions were appropriate. The mother always told X. she loved him and the two would run to each other at the start of visits. The mother appeared more excited to see X. At the end of their visits, X. did not cry. Instead, he would go easily to his prospective adoptive mother whom he was very happy to see. X. appeared more excited to see his prospective adoptive mother than he was to see his mother. By contrast, the mother was very sad when she separated from X. at the end of their visits.

At the section 366.26 hearing conducted in late September 2006, each of the parents testified, along with CDSS social worker Young-Cortez. Young-Cortez, called by the mothers attorney, was the first to testify. When asked to characterize the relationship between the mother and X. based on all she had learned, Young-Cortez replied It seems like he is familiar with her. When asked whether X. had a parent/child relationship with the mother, she replied I read the narratives, and it seems that he had a stronger relationship with his care providers. She could not say what the relationship was between appellant and X. However, she was informed appellant had not visited with X. since mid-May. With regards to the prospective adoptive parents, Young-Cortez was queried about whether she had discussed with them the possibility of being X.s guardians. She replied that although she did discuss it with them, they did not want to consider being his guardians. They wanted to adopt him.

The mother testified next and described her one-hour visits with X. She described X. as very happy and playful. He was comfortable with her and called her Mom. He also understood and knew who his mother is. When visits were over, X. looked a little sad to her. She thought they shared a mother and child bond but acknowledged maybe I am more attached to him than he is to me. During visits which the older children, also attended between February and June, the mother testified X. just wanted to be left to play with his siblings. She also did not believe X. should be freed for adoption. When asked if that was because she thought it would be better for the child not to be adopted, she replied: No. I just feel I should be given a chance.

On cross-examination, the mother acknowledged her visits with X. throughout the case were supervised. She also did not remember if she gave X. a gift for his birthday, nor did she know what his favorite toy, TV show, or cartoon was.

Last, appellant took the stand. He seemed to blame the agency for not having more visits with X. and denied ever missing a visit before the courts setting order. He admitted last seeing X. in May 2006. When asked if he had a father/child relationship with X., appellant replied Yes, sir. He believed he could give X. love and attention that no one else could. He also wanted X. to be united with his family, rather than adopted.

Following closing arguments, the court found X. adoptable and terminated parental rights. In response to the parents arguments that it should not terminate their rights based on their parent/child relationships, the court found X. would not be harmed or injured by termination. While there were some benefits to the relationship, X. had the same kind of benefit from many relationships, not just with his parents.

DISCUSSION

Appellant contends the court erred when it declined to find termination would be detrimental to X.s best interests. He claims he was entitled to such a finding because he presented evidence that he had maintained regular visitation and contact with his son and the child would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)).

Once reunification services are ordered terminated, the focus shifts to the dependent childs needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental according to one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4that p. 1351.) On review of the record, we conclude there was no abuse of discretion.

To begin, appellant did not establish the first element for a detriment finding under section 366.26, subdivision (c)(1)(A), namely that he maintained regular visitation and contact with X. throughout his dependency. By appellants own admission, he last visited with X. four months earlier despite a court order for monthly visitation. Before that, according to the record, he was only somewhat consistent in his visits.

Next, aside from appellants own belief that he shared a father/son relationship with X., there was no evidence that such a relationship even existed. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Such a relationship characteristically arises from day-to-day interaction, companionship and shared experiences. (Ibid.)

X. had lived in appellants home for the first 18 months of his life. However, appellants attention to X.s needs during those months was doubtful given the neglect the infant suffered. Thereafter, based on that profound neglect and appellants subsequent failure to address his underlying problems, appellant had very restricted contact with X. Over the following year, he had first weekly and later monthly one-hour supervised visits with X., as well as appellants five older children. The fact that X. appeared to recognize appellant and interacted with him during those relatively few occasions did not necessarily establish a significant attachment.

Further, the fact that X. seemed to enjoy his visits with his family did not compel the juvenile court to find that termination would be detrimental to X. As explained in In Beatrice M. (1994) 29 Cal. App. 4th 1411, 1420, the childs relationship must transcend the kind of relationship the child would enjoy with another relative or family friend.
Finally,

[t]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, no such evidence was introduced. Even taking into account the mothers evidence of her claimed relationship with X., there was no proof of such a substantial, positive emotional attachment between them such that X. would be greatly harmed by adoption. Indeed, on this record, just the opposite could be said. X. shared a warm, nurturing and loving relationship with his prospective adoptive parents. If the court had not freed him for adoption, he would have lost that relationship given the prospective adoptive parents interest only in providing him a permanent home through adoption.

Under all of these circumstances, we conclude the trial court properly determined there was no compelling reason for finding termination would be detrimental to X. (In re Celine R., supra, 31 Cal.4th at p. 53.)

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Kane, J.

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