In re Christopher B.

Filed 10/3/06 In re Christopher B. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Clarence B. (father) appeals from orders by the juvenile court to deny his petition for modification under Welfare and Institutions Code section 388 and to terminate his parental rights under Welfare and Institutions Code section 366.26.[1] We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Christopher B., born August 2002, is the son of father and Lea M. (mother) (collectively, parents). In September 2004, Christopher and his brother K., born December 1997, were detained by the Mendocino County Department of Family and Children’s Services (Department) due to mother’s recurring drug and alcohol abuse and mental health problems, and to both parents’ acts of domestic violence in front of the children.[2] On November 3, 2004, Christopher was adjudged a dependent of the juvenile court after parents submitted to the Department’s allegations. Christopher was placed with his adult step brother, Danny K., and Danny’s wife, Jessica K.

In declaring Christopher a dependent, the juvenile court ordered the Department to provide parents with six months of reunification services to facilitate his eventual return to their custody. The court adopted the Department’s case plan under which parents were directed to, among other things, participate in and successfully complete a substance abuse treatment program, a domestic violence program and parenting classes.

On March 23, 2005, at the six month review hearing, the Department recommended further reunification services based on father’s “eleventh hour work on his service plan and his beginning insight into his co-dependence.” The Department noted that father had completed a drug assessment and was determined not to have a current problem, and had enrolled in a domestic violence treatment program. The juvenile court thus continued reunification services for six months and transferred the case to Humboldt County, where both parents had moved.

On June 9, 2005, Jessica and Danny were granted de facto parent status.

On November 2, 2005, the juvenile court terminated reunification services to both parents after finding they had failed to substantially comply with the Department’s case plan despite 12 months of reasonable court-ordered services. In particular, as the Department reported, father had been arrested in April 2005 for drug possession and concealing drug paraphernalia, and in July 2005 for domestic violence and an outstanding warrant from the drug possession charges. Father had also failed to successfully complete domestic violence and parenting programs, and to regularly visit Christopher. The juvenile court thus set the matter for a permanency planning hearing pursuant to section 366.26.

On February 1, 2006, father filed a petition for modification under section 388. Initially, father sought to transition the case to a family maintenance plan. Later, father revised his request to seek instead further reunification services. Father’s section 388 petition, among other things, advised the juvenile court that, since services had terminated, he had on his own initiative complied with the requirements set forth in the Department’s case plan. In particular, father had completed a parenting class, was participating in drug treatment programs, and had attended classes in a domestic violence treatment program. Additionally, since November 2005, father had regularly visited Christopher, and had permanently separated from mother.

Christopher’s counsel and Jessica and Danny opposed father’s section 388 petition. Jessica and Danny also informed the juvenile court that Christopher had adapted well to their home, and that they wished to adopt him.

On March 24, 2006, the juvenile court held hearings on both the section 388 petition and the section 366.26 permanency plan. The juvenile court denied the section 388 petition after finding that father failed to prove further reunification services were in Christopher’s best interests. The court then terminated parental rights under section 366.26 after finding that Christopher was adoptable and that terminating father’s rights would not be detrimental to him.

Father’s notice of appeal seeks review of the termination of his parental rights. His notice fails, however, to seek review of the denial of his section 388 petition.

DISCUSSION

In his briefing, father asks this court to reverse both the order denying his section 388 petition and the order terminating his parental rights. He argues that the juvenile court abused its discretion under section 388 in refusing to provide him further reunification services, and that the abuse of discretion corrupted its subsequent order under section 366.26 to terminate his parental rights. We conclude father failed to perfect an appeal of the section 388 petition, and that we thus lack jurisdiction to consider it. We further conclude the juvenile court properly exercised its discretion in terminating father’s parental rights. Accordingly, we affirm.

A. No Jurisdiction Exists To Review The Denial Of The Section 388 Petition.

“It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal.” (Unilogic Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625, quoting Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90-91.)

Here, the notice of appeal states that father appeals the order “[t]erminating [his] parental rights on March 24, 2006.” It does not mention the order denying his section 388 petition for modification.

Father nonetheless asks this court to liberally construe his notice of appeal to include the order on his section 388 petition. Citing In re Josiah S. (2002) 102 Cal.App.4th 403, 418, father argues that the issues underlying the section 388 and section 366.26 orders are closely related, and thus that an appeal from one should be adequate to permit an appeal from the other. We disagree, and find In re Josiah S., supra, 102 Cal.App.4th 403, inapposite.

Father is correct that we must construe notices of appeal liberally with a view to deciding cases on their merits. However, “[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or from one of two separate appealable judgments or orders. (9 Witkin, Cal. Procedure (3d ed. 1985), Appeal, § 372, p. 374.)” (Unilogic, supra, 10 Cal.App.4th at p. 625, quoting Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)

Here, the order on father’s section 388 petition was a separate appealable order. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068.) Father nonetheless omitted any reference to that order in his notice of appeal. Father’s omission, we conclude, “is a clear intention to appeal from only [the order terminating his parental rights],” precluding our review of the section 388 order. (Unilogic, supra, 10 Cal.App.4th at p. 625; see also Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 [“Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed”].)

Moreover, we find inapposite father’s authority for asking this court to apply an exception to the general rule governing ambiguous notices of appeal. In In re Josiah S., supra, 102 Cal.App.4th at p. 418, the appellate court permitted a mother to appeal from an order summarily denying her section 388 petition even though the order was not mentioned in her notice of appeal. The appellate court found that permitting review was appropriate under the circumstances because the mother had prepared the notice of appeal herself, her section 388 petition raised issues relating to a report by the state that she failed to receive in time for the hearing for which it was prepared, and the juvenile court erroneously denied her request for a contested hearing at which the report could have been considered. (Ibid.) Such extraordinary circumstances do not exist in this case. There is no evidence father prepared the notice of appeal himself, or that he belatedly received from the Department critical evidence identified in the section 388 petition. Accordingly, we conclude this court lacks jurisdiction to review the order denying father’s section 388 petition.

B. The Juvenile Court’s Order To Terminate Parental Rights Was Proper.

Father further claims the juvenile court’s order to terminate his parental rights must be reversed because it was issued based on “corrupt[]” findings made by the court in denying his section 388 petition. We disagree.

As stated above, we lack jurisdiction to review the juvenile court’s order denying father’s section 388 petition. However, because father relies on the juvenile court’s findings in denying his section 388 petition as the basis for his appeal of the order terminating his parental rights, we find it helpful to review the law governing both orders, as well as that governing the dependency process in general.

Under the statutory process for dependency matters, the burden is on the state at the dispositional hearing to prove by clear and convincing evidence that a child must be removed from his or her parent’s custody. (§ 361.) Once the child is removed, the parent is entitled, except in limited circumstances, to a minimum of 12 months of reunification services. (§ 361.5.) The juvenile court must review the case once every six months during the reunification period. A statutory presumption exists during this period that the child will eventually be returned to the parent. Accordingly, “[a]t 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child’s physical or emotional well-being. (§ 366.21, subd. (f); § 366.22, subd. (a).)” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

If, within the maximum 18-month reunification period, the juvenile court determines it would be detrimental to the child to be returned to parental custody, the court may terminate reunification services and order a permanent plan for the child. (§ 366.21, subd. (f); § 366.22, subd. (a).) Before and after reunification services are terminated, the parent has a continuing right to petition the court pursuant to section 388 for a modification of any order in the case based on a showing of changed circumstances or new evidence. (§ 388.) In bringing the petition, the parent has the burden to prove by a preponderance of the evidence that changed circumstances exist and that the proposed modification would be in the child’s best interest. (Nahid H., supra, 53 Cal.App.4th at p. 1068; Cal. Rules of Court, rule 1432, subds. (c), (f).)

Once reunification services are terminated, however, the court’s focus shifts away from the parent’s interest in reunification and toward the child’s need for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at pp. 308-309.) Accordingly, at a mandatory hearing held pursuant to section 366.26, the juvenile court must adopt one of four alternative permanent plans. (§ 366.26, subd. (b)(1)-(4).) Our legislature prefers the permanent plan of adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) “If a court finds a child adoptable, it must terminate parental rights absent four specified circumstances in which it would be detrimental.” (Ibid, italics added.)

Here, father contends the following circumstance set forth in section 366.26, subdivision (c)(1)(A), makes terminating his rights detrimental to Christopher: “The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.” Our colleagues in the Court of Appeal, Fourth District, Division One, have aptly described this so-called beneficial parent-child relationship exception as follows: “When determining whether the exception applies to bar termination of parental rights, 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. However, 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 parent’s rights are not terminated.’ [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

Here, the juvenile court terminated father’s parental rights after finding that doing so, and continuing placement with Jessica and Danny, were in the child’s best interests. In so ruling, the court noted that, had the evidence supported application of the beneficial parent-child relationship exception, he would have granted father’s 388 petition and ordered further reunification services. The court, however, had denied father’s section 388 petition after finding he failed to meet his burden to prove the proposed modification -- further reunification services -- was in Christopher’s best interests. In particular, the court found that father failed to show a relationship with Christopher more significant than “a pleasant gathering.” The evidence supported the court’s decisions, which were left to its discretion. (See In re Eric B. (1987) 189 Cal.App.3d 996, 1005 [juvenile court’s determination of child’s best interests will not be reversed absent a clear abuse of discretion].).

At the time of the section 366.26 hearing, Christopher was over three and a half years old, and had been removed from father’s custody for over 18 months. Father’s relationship with Christopher had improved over the past few months, but overall his visitation was sporadic. Further, Jessica reported that, while supervised visits between Christopher and father were positive, Christopher’s behavior deteriorated after unsupervised visits. In fact, Christopher’s teacher reported negative behavior to Jessica nearly daily during the three week period that he and father had unsupervised visits.

Moreover, father had remained sober for only 6 months and, while he had enrolled in several substance abuse programs and completed a parenting class, he had yet to successfully complete a domestic violence treatment program. Father conceded Christopher had developed a significant bond with Danny, Jessica and their children, and hoped any disruption in their relationship would not be detrimental. Not only did Christopher call Jessica and Danny “mommy” and “daddy,” it was undisputed they wished to adopt him, and could provide a stable, healthy, and loving home. It was also undisputed that Jessica and Danny would promote a healthy relationship between Christopher and father should their request for adoption be granted.

Based on these circumstances, the Department opined that increased visitation with father would not be detrimental to Christopher. The Department did not opine, however, that increased reunification services would be in Christopher’s best interests or that terminating father’s parental rights would be greatly detrimental, the showings required under section 388 and section 366.26, subdivision (c)(1)(A). (In re Aaron R. (2005) 130 Cal.App.4th 697, 705; In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Indeed, a social worker involved in the case testified to the contrary -- that, in her opinion, it would be seriously detrimental to Christopher to be removed from Jessica’s and Danny’s home.

Thus, while the evidence proved father had in the past few months improved his relationship with Christopher, as well as the quality of his own life, it did not prove that their parent-child relationship was so significant that its termination would be greatly detrimental to Christopher. (See In re Dakota H., supra, 132 Cal.App.4th at p. 229.) To the contrary, the evidence proved Christopher’s need for permanency and stability would be best served by his adoption. Accordingly, we find no basis for reversing the juvenile court’s order terminating father’s parental rights.

DISPOSITION

The order terminating father’s parental rights is affirmed.

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Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] Unless otherwise stated, all references herein are to the Welfare and Institutions Code.

[2] K. is the son of mother and Matthew G. His dependency is not before this court, so we discuss it only in passing.