Opinion
H030055
12-12-2006
In re L.O., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. WALMIR O., Defendant and Appellant.
In this juvenile dependency proceeding, the father of a dependent child appeals the juvenile court order terminating his parental rights. He challenges the courts findings that the child is likely to be adopted and that the benefits of adoption outweigh the detriment from severing their parent-child relationship. We find substantial evidence to support the juvenile courts determinations. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves L.O., who was born in July 1999. The boys parents are Julie M. (the mother) and appellant Walmir "George" O. (the father). Among L.O.s siblings are an older half-brother on his mothers side and two younger sisters. Only L.O.s case is before us, however. We therefore mention the other children only as relevant to the procedural background of the case.
First Dependency Proceeding
L.O. and his half-brother G.P. were the subjects of an earlier dependency proceeding, which began in June 2000 with a petition filed by the Santa Clara County Department of Family and Childrens Services (the Department). The petition sought dependency jurisdiction over the two boys, based on the parents failure to protect them. (Welf. & Inst. Code, § 300, subd. (b).) That proceeding concluded by dismissal in July 2002, after the father and mother successfully reunified with the two children. By then, the parents had two more children together, both girls: G.O., who was born in October 2000, and S.O., who was born in June 2002.
Further unspecified statutory references are to the Welfare and Institutions Code.
Second Dependency: Detention, Jurisdiction, and Disposition
The current dependency proceedings were instituted in early December 2002, after the parents were arrested for child endangerment, corporal punishment, and conspiracy. In a petition filed under section 300, subdivisions (a) and (b), the Department alleged that the father and the mother had physically abused L.O., his half-brother, G.P., and one sister, G.O. The three children, along with baby S.O., were placed in protective custody. At a hearing held several days later, all four children were detained. L.O. was placed in a emergency shelter home; the other children were placed elsewhere.
The initial source of the physical abuse claims against the parents was Richard D., a Department-paid "substitute care provider" for the children. Richard had known the mother Julie since childhood, as she had been placed in foster care at his home when she was five years old and he was 10. The Departments jurisdiction/disposition report observed that Richard "appears to have been obsessed with the mother for many years." As also noted in that report, Richard had been described by a law enforcement officer as "an alarmist" who "tends to embellish."
In early January 2003, the Department filed a first amended petition, which added assertions of sibling abuse under subdivision (j) of section 300. New factual allegations related to G.P.s disturbing behaviors while staying in the home of Richard D., whom G.P. referred to as his uncle. The petition alleged that "the parents have never been to the home of Richard D[.], but they allowed [G.P.] to go" there anyway, including for overnight visits.
In early February 2003, the Department filed a second amended petition. That petition eliminated all of the allegations of serious physical harm, which had been asserted under subdivision (a) of section 300; it also dropped the factual allegations that the children had been hit or thrown to the ground, previously made under subdivision (b). According to the Departments January 2003 jurisdiction/disposition report, "sufficient evidence to substantiate the allegations made by [Richard D.] has not been found." But the Departments February 2003 disposition report contains this statement: "Although there might not be sufficient and reliable evidence to substantiate the allegations of physical abuse by the parents, the parents have certainly neglected the needs and safety of their children."
The juvenile court conducted the jurisdiction hearing in February 2003. Both parents submitted on the petition, and all four children were adjudged dependents of the court. The court ordered reunification services for the father and the mother, which included visitation with the children. Three-year-old L.O. remained in a foster home, his third since his removal in December 2002. He exhibited serious behavioral problems, including violent tantrums.
Review Hearings
The six-month review hearing took place in August 2003. In its report for the hearing, the Department stated that the father and the mother both had "made good progress in their Court ordered services." The Department further stated: "Visitation reports indicate that both parents, but in particular, the father, have greatly increased their ability to set limits with the children and enforce those limits." At the conclusion of the hearing, the girls were returned to their parents custody, with family maintenance services. The boys, L.O. and G.P., remained in separate out-of-home placements. The court continued reunification services, including visitation for the boys.
The 12-month review hearing was conducted in late January 2004. L.O. remained in foster care. In the social workers assessment, his "special needs" would be better met by allowing him "to remain stable" in his current placement, where he had been since August 2003. As for visitation, the Department stated: "Visitation reports indicate that the visits continue to go well, with the father being a more active participant in the visits than the mother." The visits were still supervised, however, based on the social workers "concerns regarding the parents[] ability to monitor all four children outside the confines of supervised visits." The Department recommended the continuation of reunification services. The court adopted the Departments recommendations and continued reunification services to the parents until June 2004. Those services included supervised visitation twice a week for two hours each visit.
The 18-month review hearing took place in July 2004, after several interim review hearings and an unsuccessful mediation.
In a June 2004 report prepared for the 18-month review hearing, the Department recommended the termination of reunification services and the adoption of a permanent plan of long-term foster care for L.O. (See §§ 366.22, subd. (a), 366.3, subd. (e)(8).) The report observed: "The children were made dependent children due to the parent[s] ongoing neglect of the childrens educational and medical needs. The older children [G.P. and L.O.] have numerous educational and behavioral needs...." The report also stated: "The parents continue to provide only the basic level of care for the two children that are currently in their care [the girls] and continue to demonstrate difficulty with regular school attendance for [the older girl] and following up on medical appointments. It continues to be the concern of the undersigned [social worker] that returning the boys to the parents, with their multiple special needs and numerous appointments and services would overwhelm the capacities of the parents and place all four children at risk for further neglect." The report continued: "The parents [] have received eighteen months of Family Reunification Services. While the father has completed all of his court ordered services and the mother has completed most of hers, the issues that brought the family before the court continue to be of concern." The Department thus recommended "that Family Reunification Services for both parents be terminated and that the Court implement[] the permanent plan of permanent placement with a fit and willing relative or planned permanent living arrangement, as the boys are not adoptable at this time and there is currently no individual willing to assume guardianship of the boys." With respect to the parents conduct during visitation, the Department advised that "both parents have only minimally interacted with the children." It also recounted several incidents demonstrating lack of parental supervision, including one in which L.O. struck his sister with a baseball bat and another in which he stole an ice cream cone. Citing the lack of sufficient parental interaction and supervision during visits, the Department recommended reducing the frequency of visits to once a week.
On July 12, 2004, the day of the 18-month review hearing, the Department filed an addendum report. It advised the court that the mother was pregnant with another child, apparently not fathered by appellant. It also advised of an altercation between the parents, which resulted in the fathers arrest on domestic violence charges and the entry of a restraining order against him. Citing the "current events in the family and the discord between the parents," the Department reiterated its recommendations that the court terminate reunification services and authorize the previously suggested permanent plan of long-term foster care for L.O.
At the conclusion of the 18-month review hearing, the court adopted the Departments recommendations. It thus ordered: "Family Reunification Services are terminated and the child shall receive permanent placement services with the permanent plan of permanent placement with a fit and willing relative or planned permanent living arrangement." In addition, as recommended by the Department, the court allowed the parents weekly two-hour supervised visits with L.O.
Post Permanency Hearings
Following the July 2004 order terminating reunification services and selecting long term foster care as the permanent plan, the juvenile court conducted periodic post permanency review hearings. (See § 366.3, subd. (d).) In addition, the court entertained several ex parte applications by the Department in late 2004 and early 2005.
In October 2004, the Department filed an ex parte application, seeking to limit the parents right to make educational decisions. In support of the application, the Department stated that L.O. "has an active IEP [individual educational plan] and is in need of immediate services at school to maintain his classroom placement. ... The father has never attended an IEP and declined the opportunity to attend in June 2004. The father also has not inquired about L[]s educational progress since he started Kindergarten. ... The foster mother deals with the childs educational needs and challenges on a daily basis and it would provide for a better continuity of care for her to act as his Educational Representative." The court granted the application.
The Department later submitted two other ex parte applications, one in December 2004 and the other in February 2005. The first sought authorization to administer psychotropic medication to reduce L.O.s outbursts and oppositional behaviors. The second requested court permission for a follow-up developmental assessment for L.O. So far as the record indicates, there was no opposition to either application, and the court granted both of them.
At the periodic post permanency review hearing held in November 2004, the Department recommended continued jurisdiction and long-term foster care for L.O., but a reduction in the frequency of the mothers visits, to just once a month, because she had not visited L.O. since early September. The court adopted those recommendations.
Another review hearing was held in May 2005. In its report for that hearing, the Department again recommended continued jurisdiction and long-term foster care for L.O. In addition, it sought a reduction in the duration of the fathers visits — from two hours to one — because "the current length of the visits appears difficult for" L.O. The court agreed with the Departments recommendation to continue jurisdiction and the current permanent plan. As to visits, the court ruled that the issue would "be discussed at hearing in about 30 days."
In June 2005, the Department renewed its request to reduce the length of the fathers visits, this time on the ground that the father had made explicit threats of harm to himself — that he would set himself on fire in protest if he lost his girls — as well as implicit threats against the social worker. As a result of the threats, the Department reported, "the fathers visits with L[] were moved from the community to the Childrens Shelter and the Department assumed supervision of the visits." Following a hearing in June 2005, the court reduced the length of the fathers weekly supervised visits to one hour each. In light of the threats, the Department arranged for visits to take place at the courthouse on Terraine Street in San Jose.
In November 2005, the Department asked the court to set a hearing to select a new permanent plan for L.O. — adoption. (§ 366.26.) In support of that request, the Department reported that it was "in the process of transitioning [L.O.] to a permanent home" with a prospective adoptive family. According to the Departments report, the father had not seen L.O. since early June 2005, as he refused to participate in visits at the courthouse location. In light of L.O.s transition to an adoptive home, the Department requested that the fathers visits be "reduced to once per month, supervised, at Terraine St. courthouse." As requested by the Department, the court set a new selection and implementation hearing for February 2006, and it limited the father to one hour a month of supervised visitation at the courthouse.
In December 2005, the Department submitted an ex parte application, requesting authority to place L.O. with the prospective adoptive family in Sacramento County. The Department advised the court that it had started pre-placement visits for L.O. with the fost/adopt family in late October, followed shortly thereafter by weekend overnight visits, including a visit over the Thanksgiving holiday. According to the Department, "by all reports," L.O. was "doing remarkably well" and was "prepared to permanently transition to the new placement." The father opposed the proposed out-of-county placement. Following a hearing, the court approved L.O.s new placement.
Termination of Parental Rights
The new selection and implementation hearing, which the court had set for February 2006, was heard the following month as a contested matter.
In its February 2006 report for the hearing, the Department asked the court to terminate parental rights and to select adoption as L.O.s new permanent plan. The report summarized the history of L.O.s contact with his biological family, including appellant. No recommendation was made for visits to continue. The report included an evaluation of the childs medical, developmental, educational, and mental and emotional status. It also analyzed the likelihood of adoption for L.O., concluding that he "is an adoptable child and an adoptive home has already been identified."
L.O.s child advocate also submitted a report, dated February 22, 2006. She recommended continuing L.O. in his current placement, the proposed adoptive home. She also commented: "Parental visits should be discontinued." L.O.s child advocate observed that he "regressed and became difficult" after the fathers visit at the end of January 2006. She also stated: "As of this report, [L.O.] has been in his concurrent home for 2 months. He is adjusting well to his new family."
At the hearing, the court accepted the two reports into evidence. The court also took judicial notice of all prior findings and orders in the case. The mother was not present at the hearing. Her whereabouts were unknown, and she had been given prior notice of the hearing by service on her attorney.
The father, who was present at the hearing with his attorney, took the witness stand. He explained his six-month lapse in visits from June to December 2005, saying that he objected to visiting his son at the courthouse with law enforcement officers nearby because "I was afraid that he was going to grow up thinking ... I was in jail ...." He also explained that he had suffered a head injury at about the same time as the visitation change in June 2005, which impaired his thinking. The father testified concerning his bond with his son, saying that he gave L.O. "full care" as a baby whenever he was not working, and that the boy "was very attached to me. Very, very attached to me. Still today." In his testimony, the father expressed his objections to freeing L.O. for adoption, saying "he already knows that hes my son, no doubt about it." He also expressed his fear that L.O. would "be damaged emotionally real bad" if contact was severed, and that the boy might later turn to drugs or alcohol as a result. He testified that L.O. would benefit from their continued relationship by knowing that his father loves him, did not leave him, and is "there for him one way or another."
After the fathers testimony, the parties argued their respective positions.
The Departments attorney asserted that L.O. was adoptable, citing the social workers opinion and the childs characteristics on which it was based. She also argued against the parent-child bond as an exception to adoption. In particular, she observed, "in the last nine months there was a six-month period during which the father did not visit L[] at all. ... And then in the last three months, the fathers visitation has been limited to once a month supervised visits here in the courthouse." In the words of the Departments counsel: "There simply is not sufficient evidence in the record for the Court to find that — first of all, that the father has maintained regular visitation, and second of all, that the father occupies a parental role in L[]s life." Finally, she argued, "the benefits of adoption for L[] far outweigh maintaining any relationship that he may have with his biological father and there is no evidence for the Court to find that the exception applies."
Appellants counsel urged the court not to terminate his parental rights, asserting the existence of a strong parent-child bond. He argued: "During his visits with his son [appellant] has been a loving and attentive father. [Appellant] has brought gifts for L[] at each of the visits. L[] is also happy to see [appellant]. And calls him dad. L[] continues to run to [appellant] when he first sees [him]."
Speaking on the childs behalf, his counsel agreed with the Departments request to terminate parental rights and free L.O. for adoption, saying: "Your Honor, Im in agreement with the recommendations and I believe the evidence is sufficient for the Court to make the requested findings and orders."
After hearing evidence and argument, the juvenile court made two findings challenged here. First, the court found "by clear and convincing evidence that it is likely that L[] will be adopted." Next, the court rejected the fathers arguments for applying the parental bond exception to adoption, finding that the father failed to carry his burden of proof as to both statutory requirements. Addressing the first prong of the statute, the court stated: "The Court cannot find that missing six months of visitation is regular visitation." Beyond that, the court concluded, the father failed to make the required showing of "a parent-child relationship [] of such strength that the child would actually be harmed by its termination" and one that "promotes the well-being of the child to such a degree that it outweighs the well-being the child would gain from the permanent home." Thus, the court stated: "The Court cannot find that [the father] has prevailed on the second prong of the ... exception."
Appeal
This appeal by the father ensued. He challenges the March 2006 order terminating his parental rights to L.O. on two grounds. First, appellant attacks the courts adoptability finding, arguing that it is not supported by substantial evidence. In addition, appellant challenges the courts decision not to apply the parental bond exception to adoption.
The Department defends the juvenile courts determinations, arguing that there is sufficient evidence to support them. Neither L.O. nor the mother appears on appeal.
DISCUSSION
I. Statutory Framework
As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions raised here.
A. Background
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.) The primary goal of the dependency statutes is "to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible." (In re David M. (2005) 134 Cal.App.4th 822, 824.) In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) We are concerned with the fourth and final phase here.
B. Permanency Planning
At the appropriate juncture, the juvenile court is required to select and implement a permanent plan for a dependent child. (§ 366.26; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) "The selection and implementation hearing under section 366.26 takes place after the juvenile court finds that the parents are unfit and the child cannot be returned to them." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) Generally speaking, the court is required to "select one of three plans for the child: adoption, guardianship or long-term foster care." (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797. Cf., In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1437 [discussing statutory changes affecting long-term foster care].)
1. Adoption
"Where there is no probability of reunification with a parent, adoption is the preferred permanent plan." (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164.) "Adoption is the preferred placement because it offers the prospect of a secure permanent home." (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
Notwithstanding the strong preference for adoption, the juvenile court may not terminate parental rights and free the child for adoption except upon clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); § 366.22, subd. (b)(6); In re Jose V., supra, 50 Cal.App.4th at pp. 1797-1798.) "`Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt." (In re Asia L. (2003) 107 Cal.App.4th 498, 510.)
` 2. Exceptions
"Where the trial court finds that the child is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental under one of [several] specified [statutory] exceptions." (In re Jamie R., supra, 90 Cal.App.4th at p. 773. See § 366.26, subd. (c)(1)(A) — (E).) In this case, appellant relies on one such provision: the "beneficial relationship" or "parental bond" exception. (§ 366.26, subd. (c)(1)(A).)
Parents seeking to avoid the termination of their parental rights based on the parental bond bear the burden of proving that the statutory exception applies to them. (In re Jamie R., supra, 90 Cal.App.4th at p. 773.)
C. Appellate Review
As California Supreme Court precedent teaches, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) But many courts have employed the substantial evidence review standard when the issue on appeal is the termination of parental rights, since the requisite case-by-case assessment of relevant circumstances generally requires a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) As a practical matter, the differences between the two standards of review are not significant. "In its emphasis on deference, the abuse of discretion standard is similar to the substantial evidence rule." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) Furthermore, "evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling." (Id. at p. 1067.)
Applying that deferential review standard, we view the evidence in the light most favorable to the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We thus examine the record to decide whether "a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence." (In re Jasmon O. (1994) 8 Cal.4th 398, 423, internal quotation marks omitted. Accord, In re Erik P., supra, 104 Cal.App.4th at p. 400.) "We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) The appellant has the burden of showing that the challenged finding or order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
With that statutory overview in mind, we turn to the case at hand. As noted above, the father contends that there is an insufficient basis for the juvenile courts finding that L.O. is likely to be adopted. He also argues for application of the parental bond exception to adoption. We consider each of the fathers arguments in turn, bearing in mind the deferential standard that governs our review.
II. Likelihood of Adoption
In adoptability determinations, the focus is on the child; the juvenile court considers whether the childs age, physical condition, emotional state, or other factors may make adoption difficult. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence of a prospective adoptive parent is not determinative in itself. (Ibid.; see § 366.26, subd. (c)(1); see also, e.g., In re Josue G., supra, 106 Cal.App.4th at p. 733.) But it is a factor in assessing adoptability, since a prospective adoptive parents interest is evidence that the childs attributes are not likely to discourage others from adopting that child. (In re Sarah M., at p. 1650; In re Erik P., supra, 104 Cal.App.4th at p. 400; cf., In re Asia L., supra, 107 Cal.App.4th at pp. 510-512.)
A. Evidence of Relevant Attributes
The Department evaluated the medical, developmental, educational, and mental and emotional status of the child in its report for the selection and implementation hearings, which was filed in February 2006. Considering that evaluation, together with other evidence in the record, we reject appellants contention that L.O.s attributes render him unlikely to be adopted.
1. Age
As of March 14, 2006, the date of the section 366.26 hearing, L.O. was approximately six years and eight months old. Thus, he was nearing — but had not yet reached — the age that could render him "difficult to place for adoption" under the statute, which refers to children aged "seven years or more." (§ 366.26, subd. (c)(3).)
2. Physical Health
L.O.s physical health presents no impediment to his adoption. An evaluation prepared in December 2003 stated that the child had no "known major or chronic health problems." According to the Departments November 2005 report, L.O. "remains in good health." And in its February 2006 report for the 366.26 hearing, the Department advised the court that L.O. "is up to date with his medical and dental check-ups. ... He is a healthy child and is up to date with his immunizations."
3. Developmental/Mental/Emotional Status
Problems with a dependent childs "emotional and psychological development" may "present a potential obstacle to adoption." (In re Asia L., supra, 107 Cal.App.4th at p. 512.) As the record demonstrates, L.O. has a history of behavioral and developmental issues. But the evidence also makes clear that he has made great strides in overcoming these problems.
According to a December 2003 evaluation, L.O.s psychiatric review "was positive for a history of disruptive and aggressive behavior but negative for persistent mood disturbance." Compared to an assessment done the prior month, L.O. was "more calm and focused in his play." Attention deficit hyperactivity disorder was not found. He appeared "generally rather social and interactive." Among the evaluators recommendations were that L.O.s "behavior be addressed in such a way as to maximize consistency and limit-setting. [He] responds well to directions that are broken down into parts and he responds well to a clear routine with predictable outcomes."
In October 2004, a psychological evaluation was prepared for L.O., which characterized him as "very active and difficult to redirect. Needs constant supervision." The same evaluation described him as "alert, cute, oppositional but responds well to redirection." The evaluators recommendation was for low-dose medication.
Two reports prepared in November 2004 described L.O.s progress in overcoming his psychological problems. One of those reports is from L.O.s child advocate, who stated: "Over the last few months he has gotten better about not running away from me when we need to leave an activity." The other report, from the Department, advised that L.O. was continuing to make progress, and though his "progress has been slow, it appears that an appropriate team is in place and that all of the concerns are being appropriately addressed."
L.O.s child advocate submitted two reports in 2005. In her May 2005 report concerning L.O., the advocate reported: "His behavior has improved significantly at school. He no longer requires having someone sit with him the entire day. He has made a friend in his class and her family has taken him on an outing. When playing at the park he has begun interacting with the other children and at times initiates the exchange. He had not been doing this before. [¶] He has been started on a mood leveling drug and is being monitored monthly. In our time together his temper has not been as volatile and he is much more cooperative." In her November 2005 report, the advocate passed along an assessment from L.O.s teacher "that his behavior has improved since the beginning of the year." The advocate also advised: "The transition to his fost-adopt home is going very well."
The Department also prepared a report in November 2005, which stated that L.O. "has made good progress developmentally since the last review hearing on 5/16/05. There is marked improvement in both his speech and social skills." That report also advised that he was repeating kindergarten, receiving psychiatric and behavioral services, and continuing his medication "to assist him with oppositional behaviors." The report also stated: "According to the foster mother and the therapeutic team, [his] oppositional behaviors have decreased significantly since he began the medication in December 2004."
The Departments February 2006 report, prepared for the selection and implementation hearing, includes an assessment of L.O.s mental and emotional status. As described in that assessment, L.O. "generally presents as a happy, social little boy. He has many interests, such as dinosaurs, trains, and anything that has to do with animals." That comports with the child advocates description of L.O. as "an energetic, delightful 5-year-old who loves Thomas the Train." While acknowledging L.O.s "history of oppositional behaviors," the Department states: "These behaviors have markedly decreased since he has been taking the psychotropic medication Risperdal."
In that same report, in an analysis of the likelihood of adoption for L.O., the social worker describes him as "a bright, inquisitive, social, and affectionate little boy. He has a smile that can light up an entire room. He has demonstrated an ability to attach, as he was clearly attached to his previous foster mother. It appears that he is developing an attach[]ment to the foster/adopt parents and this [social worker] has witnessed affectionate moments between them, such as holding hands, and quietly sitting in their laps. While L[] does have behavioral issues to work through, he has made progress in responding appropriately to very clearly defined rules, limits and boundaries that are consistently enforced. L[] is an adoptable child and an adoptive home has already been identified."
B. Likelihood of Adoption
As the foregoing evidence shows, L.O. possesses attributes that support a finding of adoptability. This is not a case in which the child "might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability ...." (In re Sarah M., supra, 22 Cal.App.4th at 1650.) Although he is older, he is in good general physical health. It is true that L.O. has exhibited disturbing behaviors, which suggest emotional issues that are not fully resolved. By the same token, however, he has made significant progress in overcoming these problems. He appears capable of forming a loving bond and becoming part of a permanent family. Among the attributes that make children generally adoptable are "intellectual and academic growth, and ability to develop interpersonal relationships." (Id. at p. 1651.) Those attributes are in evidence here.
The juvenile courts adoptability determination thus finds ample support in the record, even without considering the existence of an identified prospective family. The fact that L.O. was in a concurrent home provides further evidentiary support for the finding of adoptability. (See In re Asia L., supra, 107 Cal.App.4th at p. 510.)
In sum, on this record, a reasonable juvenile court judge could find clear and convincing evidence that L.O. is likely to be adopted.
III. Parental Bond Exception to Adoption
The "parental bond" or "beneficial relationship" exception is contained in section 366.26, subd. (c)(1)(A). As developed in the case law, the exception comprises three essential elements: regular visitation and contact; a parental role; and a relationship that "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.)
That provision reads in pertinent part as follows: "(c)(1) If the court determines ... that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. ... A finding ... that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
A. Visitation and Contact
The first requirement, "regular visitation and contact with the child," is explicit in the statute. (§ 366.26, subd. (c)(1)(A); see, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689 [mother had maintained "regular visitation and contact"]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343 [mother had been consistent in her visitation, although the visits did not progress to unsupervised contact].)
In this case, according to the undisputed evidence, the father visited regularly with L.O. until June 3, 2005. But as of that date, his visits stopped entirely and they did not resume until December 30, 2005, a period of nearly seven months. "Further," the Department reported, "during the same period of time, [the father] did not inquire about L[]s well-being or attempt to communicate with him via cards or letters."
The court specifically found that the father had not maintained regular visitation and contact with L.O. The court rejected the fathers contention that "overall the visitation has certainly been regular" despite the "six-month period of no visitation ...." It said: "The Court cannot find that missing six months of visitation is regular visitation. Especially given the age of the child. Six months is a big chunk of L[]s life."
We agree with the juvenile courts conclusion and its supporting observations. Furthermore, we observe, the father also failed to contact L.O. or even make inquiries about him for more than half a year. Thus, there is ample factual support for the juvenile courts determination as to visitation and contact. The courts determination also finds legal support in the following language of section 366.26: "A finding under ... subdivision (e) of Section 366.21 ... that the parent has failed to visit or contact the child for six months ... shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child" under one of the five statutory exceptions, which include the parental bond exception. (§ 366.26, subd. (c)(1).) Although applying that language results in a somewhat circular analysis, it nevertheless bolsters the conclusion that the father did not establish the requisite element of regular visitation and contact.
On this record, the juvenile court could have rested its rejection of the parental bond exception solely on the lack of regular visitation and contact. (See § 366.26, subd. (c)(1)(A).) The court nevertheless continued its analysis, saying: "Out of an abundance of caution, I will also look at the second factor and that is that the ... parent must establish that the benefit to the child of maintaining the relationship outweighs the benefits of adoption." After undertaking that analysis, the court concluded that the father failed to demonstrate sufficient benefit from his relationship with L.O. to satisfy the statutory exception. We agree with the juvenile courts determination of this question as well, a point we now discuss.
B. Parental Relationship
As this court explained more than a decade ago, the statute contemplates a relationship that is parental in nature. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Thus, in order to trigger the statutory exception, the parent must occupy a role that goes beyond that of friendly visitor, extended family member, or day care provider. (In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Casey D. (1999) 70 Cal.App.4th 38, 52; In re Beatrice M., at pp. 1419-1420.) As we have previously observed: "While friendships are important, a child needs at least one parent." (In re Brittany C., supra, 76 Cal.App.4th at p. 854.)
Frequent, loving contact alone thus is not sufficient to establish the requisite parent-child relationship. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) Rather, the parental relationship is demonstrated by "the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Such "daily nurturing" is the hallmark of a parental relationship. (In re Brittany C., supra, 76 Cal.App.4th at p. 854; see also, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 774.) By the same token, however, everyday "contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Many different variables shape the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "Parent-child relationships do not necessarily conform to a particular pattern." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Four factors are commonly cited: "The age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H. at p. 576. See also, e.g., In re Amber M., supra, 103 Cal.App.4th at p. 689; In re Angel B., supra, 97 Cal.App.4th at pp. 467-468; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) Given the many different forms that parent-child relationships may take, application of the "exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond." (In re Autumn H., at p. 576.)
Examining the particular relationship at issue here in light of the foregoing factors, we conclude that appellant does not occupy a parental role in relation to L.O.
1. The Childs Age and Time with the Parent
We start with the first two factors, L.O.s age and the amount of time he has spent in his fathers custody. L.O. was nearly seven at the time of the hearing. By then, nearly half of his young life had been spent outside his fathers care in this second dependency proceeding alone. Furthermore, over the course of this dependency, visitation was reduced from four hours a week to one hour a month. In addition, there was a period of more than half a year with no visits at all.
Thus, as of the time of the challenged decision in March 2006, L.O. had spent "relatively few hours visiting" with his father "versus many hours being parented by" his foster families. (In re Angel B., supra, 97 Cal.App.4th at pp. 467-468.) Under these circumstances, neither the childs age nor his time in his fathers care compels a finding that appellant now occupies a parental role in L.O.s life.
2. Beneficial Parental Interaction
Addressing the next factor, we consider whether the parent-child interaction has been beneficial to the child.
For the most part, appellants visits with L.O. have been positive. Nevertheless, there was evidence that he "regressed" after the January 2006 visit. Furthermore, it is not clear that L.O. derived significant benefit from his fathers visits. For one thing, by May 2005, L.O. was "requesting to leave the visits, on average, an hour [half-way] into the visit." For another thing, as noted in the Departments November 2005 report, L.O. had "not mentioned his father to [the social worker] since the last visit in June and the foster mother has reported ... that she cannot remember the last time L[] spoke about his father."
Even accepting that appellants visits with L.O. were consistent and generally beneficial when they took place, the evidentiary record supports the inference that he has not acted in a parental role toward L.O., even within the confines of those visits. (Cf., In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) Although the father provided food, affection, and gifts at their visits, there is evidence that he failed to set appropriate limits and provide needed discipline. For example, during a 2004 family visit at a park, L.O. "took an ice cream from the vendor [] in the park. Both parents were aware of his taking the ice cream, however, neither parent made any attempt to pay for the ice cream or reprimand L[] in any way for stealing the ice cream." Furthermore, the evidence does not suggest strong parent-child interaction. In its July 2004 report, the Department noted that the father "only minimally interacted with" L.O. and the other children during visits. Likewise, according to the Departments June 2005 report, "the father spends approximately half of the time actually interacting with L[.] The rest of the time L[] is playing independently and the father is conversing with the visitation supervisor." Such conduct is not indicative of a parental role.
3. The Childs Needs
That brings us to the last factor — ability to meet the childs needs. In this case, the record supports a finding that appellant has not acted as a parent in providing such necessities as medication and education during the childs time in out-of-home placement. (Cf., In re Angel B., supra, 97 Cal.App.4th at p. 468 ["no evidence that Angel has any particular needs that can be met by Mother but not by the foster family"].) As the Department described it, L.O. had "numerous educational and behavioral needs ...." But appellant was not the one meeting those special needs. It was the Department that sought medication for the childs outbursts and oppositional behavior. As to L.O.s special educational needs, the father did not participate in his individual educational program, nor did he even inquire about the childs progress in kindergarten. Finally, there is no evidence that he attended to any of the childs educational needs during visits.
To sum up, the evidentiary record in this case provides no basis for reversing the juvenile courts implicit determination that appellants relationship with L.O. was not sufficiently parental to warrant application of the statutory exception. While appellants interaction with his dependent son was generally positive, he has not functioned as a parent in meeting the childs needs.
C. Balancing Test
In determining applicability of the parental bond exception, the juvenile court weighs the benefit to the child of continuing the parent-child relationship against the advantages of permanency through adoption. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) On one side of the equation is the relationship with the biological parent, which "must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) On the other side of the equation is permanence for the child through adoption. 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., at pp. 424-425.) "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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Such a "balancing determination is obviously appropriate in deciding whether a child would be so harmed by terminating a relationship with a natural parent that an adoption should not go forward and the permanent plan should be diverted to guardianship or foster care." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
In assessing the benefit to the child of continuing the natural parental bond, the court looks for substantial benefit from the relationship and great harm from its termination. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1349; In re Angel B., supra, 97 Cal.App.4th at p. 466; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As to the first element, "the parent must show more than that the relationship is `beneficial. " (In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) Concerning the second element, this court has previously rejected the notion "that the parent need only show some, rather than great, harm at this stage of the proceedings," reasoning that a contrary rule "would defeat the purpose of dependency law...." (In re Brittany C., supra, 76 Cal.App.4th at p. 853.)
In weighing the countervailing benefits of adoption, the court must bear in mind the well-established legislative preference for an adoptive placement over the less permanent alternatives of guardianship or foster care. (See, e.g., In re Jamie R., supra, 90 Cal.App.4th at p. 774; In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) Thus, as appellant acknowledges, "our Legislature presumes that adoption will bring a lot of benefits to the child, including permanence, stability, and sense of belonging...."
Nevertheless, appellant cautions, "the court must proceed on a case by case basis and take into account any unusual circumstances that might, in a particular case, place less weight on the benefits of adoption over a so-called `less permanent plan such as guardianship or long-term foster care." He also contends: "Certainly, for a young child who has the ability to bond to a new family, it is better to be adopted than to remain in the care of someone who does not fully assume the parental role. But for an older child who has a positive relationship with their natural parent, and may not be in a position psychologically or emotionally to make that kind of bond again with someone new, it can be better for the child to remain with a care-giver who is not attempting to replace the natural parent entirely in the childs life, so that the child can continue to have the benefits of parental contact." Appellant argues for giving less weight to adoption here.
In this case, the juvenile court explicitly balanced the benefits of maintaining the father-child relationship against the benefits of security, stability, and permanence that an adoptive home would provide. Viewed in the light most favorable to the order, the record demonstrates that L.O. was able to form a loving bond, and that in fact he was bonding with his new fost/adopt family. Contrary to appellants assertions, L.O. thus stood to derive great benefit from the permanency that his new adoptive placement would bring.
Having weighed the father-son relationship against the childs need for permanence and stability, the juvenile court properly afforded him the most permanent and secure placement that it could — adoption. That determination is amply supported in fact and law.
SUMMARY OF CONCLUSIONS
The record supports the juvenile courts determination that L.O. is likely to be adopted. The record likewise supports the courts rejection of the parental bond exception to adoption. Under these circumstances, the court did not err in terminating appellants parental rights.
Disposition
We affirm the order of March 14, 2006, terminating appellants parental rights and freeing L.O. for adoption.
We Concur:
Mihara, Acting P.J.
Duffy, J.