Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD16701
Duffy, J.
Raul H. is the father of Daniel B., a three-year-old boy. He appeals from the juvenile court’s order under Welfare and Institutions Code section 366.26 ending his parental rights. He claims that the beneficial relationship exception applies against the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court relied on evidence that Raul H.’s attention difficulties and limited ability to focus on tasks, which culminated in his leaving Daniel B. unattended in a parked car for almost an hour, and his lack of success in mastering child-raising skills showed that he was incapable of safely raising Daniel B., even though he loved his son and had struggled to raise him. Because it is the best interest of Daniel B. that governs in these circumstances, the court ruled correctly. We will affirm the order.
FACTS AND PROCEDURAL BACKGROUND
Daniel B. was born in December 2005, testing positive for methamphetamine. The next day the Santa Clara County Department of Family and Children’s Services (department) put him in protective custody. His mother admitted using methamphetamine but denied having any substance abuse problem. She acknowledged having no permanent residence.
In the days following the department filed a petition that alleged failure to protect (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g)), and specifically that Daniel B. was at risk because of his mother’s history of and current substance abuse. The petition also alleged that the mother was on probation for drug-related crimes and was a registered narcotics offender. The juvenile court considered these allegations and on January 4, 2006, kept Daniel B.’s detention in place.
The department filed an amended petition on January 19, 2006, that invoked, as had its original petition, subdivisions (b) and (g) of section 300 and alleged, as relevant here, that Raul H. had a history of substance abuse and of committing domestic violence and that he was confined in state prison.
In a jurisdiction/disposition report dated January 25, 2006, the department alleged that Raul H. had two felony and 19 misdemeanor convictions, including felony and misdemeanor domestic abuse convictions. He was in custody when or shortly after Daniel B. was born for violating his parole. The department also alleged that Raul H. had four other children; they were dependents of the juvenile court from 1996 to 1998 and he and they had been the subject of five prior referrals to the juvenile dependency system. For part of that time he was raising them under a family maintenance plan. The report noted that Raul H. contacted a caseworker on January 10, 2006, stating that he was Daniel B.’s father and requesting counsel. The department recommended that Raul H. receive reunification services if he established paternity.
From the state of the record, it is difficult to establish the contours of the juvenile court’s actions on the allegations contained in the first amended petition and the jurisdiction/disposition report. At the jurisdictional/dispositional hearing, which was held on January 25, 2006, the juvenile court did not sustain the allegation of no provision for support under section 300, subdivision (g), leaving intact the failure to protect allegation under section 300, subdivision (b). The parties inform us that the court also did not sustain the allegations regarding Raul H.’s prior domestic violence and substance abuse. The department explains that the court took this action because Raul H. had not established his paternity at the time. The court made Daniel B. a ward of the court and sent him to foster care.
In an interim review report dated March 15, 2006, the department reported that Raul H. had maintained contact with the caseworker from jail and wanted to reunite with Daniel B. He had been attending Narcotics Anonymous in jail and stated that was the only relevant program the jail offered. On the same day the juvenile court appointed counsel and ordered paternity testing for Raul H.
In an interim review report dated April 19, 2006, the department reported that Raul H. was released from jail on April 15, 2006. An interim review report dated May 10, 2006, disclosed that Raul H. had met with the caseworker and signed up for drug testing; the caseworker also asked that he begin attending “twelve step meetings” for substance abuse. On that same day, the juvenile court reviewed paternity test results and declared Raul H. to be Daniel B.’s biological father. Pursuant to the department’s May 10, 2006, recommendation, it appears that the court ordered reunification services about this time, though the record does not show the exact date.
In its six-month status review report dated July 19, 2006, and addendum report dated August 7, 2006, the department recommended that Raul H. receive six more months of reunification services. It also recommended that services for Daniel B.’s mother be ended, and the juvenile court later so ordered. The mother thought that Daniel B. had already been adopted, was in jail for a probation violation, was homeless and, according to Raul H., was pregnant again.
The foregoing two reports showed that following his release Raul H. was making middling progress. On the one hand, he was meeting case plan requirements and had found a sponsor, a parent advocate, and part-time work. On the other hand, he was living with his ex-wife. She had what the report termed, without elaboration, an extensive history of child welfare problems, and his social worker told him he must establish his own residence before regaining custody of Daniel B. A prior report had indicated that the ex-wife also was associated with lawbreakers and had allowed illegal activities in her home. Raul H. tested negative for contraband substances when he appeared for tests, but at least in part because he was confused about the schedule and/or the requirements, he did not appear for all of them.
On August 7, 2006, the juvenile court, following the department’s recommendation, ordered six more months of reunification services for Raul H., meaning that he was meeting the minimum requirements to continue receiving them. But his progress was only “fair.”
Three months later, in an interim review report dated November 6, 2006, the department told the juvenile court that Daniel B. had been living in a concurrent foster-adoption home since March 3 of that year. Raul H. was making progress with his case plan and had two part-time jobs (but together they were providing him with an annual income of less than $10,000). Following that information, an interim report dated December 20, 2006, reported a degree of continued progress. Raul H. was interacting well and lovingly with Daniel B. during visits and had found a full-time job paying $16 per hour, or about $32,000 annually. On the other hand, he still was not living by himself but instead continued to reside in his ex-wife’s home, one that would be too risky for Daniel B. to inhabit. The interim report expressed “serious concerns about returning the child to [Raul H.’s] current residence,” a “home . . . where his ex wife and her partner are also residing,” “due to his ex[-]wife’s long child welfare history and . . . his conflictual relationship with her.” “Given [Raul H.’s] previous history of not having custody of any of his children and not been [sic] able to consistently support his children or to lead a life of his own independently, this worker is still perplexed and unconvinced about his ability to provide consistency and stability in the child’s life.”
The department’s 12-month status review report, dated January 24, 2007, recommended that reunification services be ended and that a selection and implementation hearing be set with a goal of freeing Daniel B. for adoption. Raul H. continued to live with his high-risk ex-wife and was refusing the social worker’s offer to help him establish a residence, an offer that included “rental deposit assistance and or one month’s rent” and possibly other “funding assistance,” leading the caseworker to report that Raul H. depended on his problematic ex-wife, had repeatedly ignored or fended off the caseworker’s advisements since the beginning of family reunification services that he could not both live with her and reunite with his son, and had not shown that he could raise Daniel B. alone. He was also dishonest. “There are times when [Raul H.] appeared very anxious, suspicious, manipulative, and not honest with his words and deeds,” the caseworker wrote. Raul H. had responded to the caseworker’s request to show proof of automobile insurance by presenting a fraudulent policy.
The 12-month status review report elaborated on the troubles of Raul H.’s ex-wife. She “has an extensive child welfare history over many years and as recent as 2005. The San Jose Police Department . . . documented [11] events from [March 16, 2000] to [December 13, 2005] at [her] residence . . . . The police report indicated that the adults in the home . . . had been arrested for being under the influence of controlled substance, possession of controlled substance with intent to sale [sic] and several family disturbances. [The ex-wife] has allowed illegal activity to transpire in her home and associated with individuals . . . involved with illegal activities[,] placing all of the children in the home at risk. More over, [she] and [her daughter, who is also Raul H.’s daughter] have been in denial about illegal activity and were not forthcoming about the individuals who have visited the home [and] have been arrested for illegal activity. The court records also indicated that [the ex-wife] has a lesbian partner who was abusive towards her.”
On February 5, 2007, before the juvenile court had acted on its recommendation, the department changed its mind and recommended that Raul H. be given custody of Daniel B. with family maintenance services. Raul H. was arranging to move into a two-bedroom apartment, was maintaining his gross annual income of about $32,000, and had obtained child care and food aid with help. On February 27 the juvenile court agreed with the department and ordered that family maintenance services continue to be provided.
In a six-month status review report dated August 27, 2007, the department noted that Raul H. had lost his job and was eking out a living as an occasional weekend caterer. The caseworker predicted that he would soon be evicted from the two-bedroom apartment. Still, Daniel B. was doing tolerably well in his home. Raul H. had missed several drug tests not because of a desire to conceal any drug abuse, which the caseworker did not perceive to be a problem, but because he had an “inherent problem in setting priorities and organizing his daily activities.” The juvenile court agreed with the recommendation and on August 27, 2007, ordered an additional six months of family maintenance services.
There things rested, as relevant to the issue presented in this case, until January 9, 2008. On that day the authorities put Daniel B. in emergency protective custody after San Jose Police officers discovered that Raul H. had left him alone in a car in front of a store for at least fifty minutes. Raul H. had been either working in the rear storage area of the store in return for free milk or rummaging in that area for discardable milk with the store operator’s permission. Raul H. offered explanations for the incident. It was January and he asserted that it was not dangerously hot that day, and that if it had been warmer he would have lowered a car window or brought Daniel B. inside the store. He gave conflicting accounts about the nature of his activities inside the store while Daniel B. was outside in the car, but insisted that he had checked him frequently—at least every five minutes. That assertion was belied by the account of an independent witness who saw Daniel B. remain unattended for 20 to 30 minutes. The witness saw Daniel B. crying intermittently while confined to his car seat inside the automobile. The police referred the incident to the district attorney’s office for possible prosecution on child endangerment charges (Pen. Code, § 273a, subd. (a)). They did not arrest Raul H. but noted in their report that he had previously been convicted of an offense under Penal Code section 273a. (The record confirms that Raul H. did suffer in 1989 a misdemeanor conviction under former Pen. Code § 273a, subd. (2); Stats. 1984, ch. 1423, § 2, pp. 4994-4995.) The department filed a supplemental petition for more restrictive placement under section 387, dated January 11, 2008, on learning of the incident.
In a jurisdictional/dispositional report dated February 6, 2008, the department recommended that Raul H.’s reunification services be ended, that Daniel B. remain with his foster parents, and that the matter be set for a selection and implementation hearing. The social worker considered Raul H.’s story about the convenience store incident dishonest and asserted, in substance, that Raul H. was incompetent to raise Daniel B. Also, he had missed six out of 10 required drug tests since September of 2007.
At the hearing held on April 15, 2008, Raul H. submitted his case on the department’s report. The juvenile court ordered that Daniel B. remain with his foster parents and set a hearing under section 366.26 to choose a permanent plan for him.
In its report for the section 366.26 hearing, dated August 12, 2008, the department recommended that Raul H.’s parental rights be ended and that Daniel B. be freed for adoption by his foster parents.
A hearing session held on September 10, 2008, produced evidence from the veteran caseworker on this case that Raul H. was “more of a playmate” than a parent toward Daniel B. The caseworker opined that Daniel B. was “not attached to . . . his bio-father” in a child-parent manner. The caseworker agreed with counsel for Daniel B. that “the benefit to Daniel of having a permanent plan of adoption outweighs the positive interactions he has with his father.”
At a hearing session held on September 12, 2008, the juvenile court took judicial notice of the dependency file. The court found Daniel B. to be adoptable, disagreed that Raul H. had shown the existence of a beneficial-relationship exception that would require his parental rights to be maintained (§ 366.26, subd. (c)(1)(B)(i)), and ended his parental rights. The court stated as follows: “I am aware that [the parent-child] relationship is a very loving . . . and . . . close one. I have been with this case since the case came in. And I am aware of the level of effort that the father put in to have the child placed with him. I am aware of the pain that a decision like this causes for a parent. But it is my job to do what I think is in the best interests of Daniel.”
DISCUSSION
With regard to dispositions in juvenile dependency cases, the best interest of the child controls (In re Fernando M. (2006) 138 Cal.App.4th 529, 534) and adoption, not guardianship or long-term foster care, is the preferred alternative. (§ 366.26, subd. (b), (b)(1), (b)(2), (b)(5).) “ ‘The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] ‘ “The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent plan and secure alternative that can be afforded them.” ’ ” (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
Raul H. claims that the juvenile court erred by not finding the existence of a statutory exception to the adoption preference, specifically the so-called beneficial relationship exception to adoption defined in section 366.26, subdivision (c)(1)(B)(i). That provision permits a juvenile court to choose an option other than adoption when the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Ibid.) Raul H. does not dispute that adoption is the preferred permanent plan in dependency proceedings but argues that because the beneficial relationship exception applies the law entitles him to a different permanent plan, namely retention of his parental rights and guardianship of Daniel B. by his foster parents.
The juvenile court’s finding that the beneficial relationship exception did not apply is reviewed under the substantial evidence standard. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) The burden rested on Raul H. to establish in the juvenile court by a preponderance of the evidence that the exception justified departing from the statutory preference for adoption at that stage. (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.)
With regard to the beneficial relationship exception, “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) But to qualify for that exception Raul H. had to do “more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that [he] and [his] child find their visits pleasant. [Citation.] Rather, [he] must show that [he] occup[ies] ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parent-child relationship must “promote[] 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, at p. 575.)
Substantial evidence supports the juvenile court’s finding that Raul H. had not shown a “compelling reason” (§ 366.26, subd. (c)(1)(B)) to qualify for the exception. In sum, he did not demonstrate that his son would be “greatly harmed” (In re Autumn H., supra, 27 Cal.App.4th at p. 575) by ending his parental rights, and the positive nature of their contacts was insufficient by itself. (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) The juvenile court found that Daniel B. was adoptable and there is no dispute that his foster parents were prepared to adopt him. They had cared for him, except for the time he was placed with Raul H. under the family maintenance services program, since he was about nine weeks old and he had always thrived in their care. Nor does Raul H. argue that the foster parents would be inadequate legal parents—rather, he urges that they be made Daniel B.’s guardians. In contrast, Raul H. had shown that he was, at best, barely capable of raising Daniel B. safely.
Accordingly, substantial evidence supports the juvenile court’s finding, in essence, that the relationship did not “promote[] 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.)
CONCLUSION
The juvenile court’s order is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.