In re Cassidy M. CA3 ( 2014 )


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  • Filed 4/3/14 In re Cassidy M. CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (El Dorado)
    ----
    In re CASSIDY M., a Person Coming Under                                                C074898
    the Juvenile Court Law.
    (Super. Ct. No. PDP2012-0134)
    EL DORADO COUNTY DEPARTMENT
    OF HUMAN SERVICES,
    Plaintiff and Respondent,
    v.
    CRAIG M.,
    Defendant and Appellant.
    Craig M., father of the minor, appeals from orders of the juvenile court
    terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 Father contends
    the court erred in failing to find he established the beneficial parental relationship
    exception to termination of parental rights. We shall affirm.
    1 Undesignated statutory references are to the Welfare and Institutions Code.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    The four-year-old minor was removed from parental custody in November 2012
    due to her mother’s increasingly serious alcohol abuse and her father’s failure to protect
    her from mother’s neglect. The minor was developmentally on track but very aggressive
    with other children, had difficulty with sleeping schedules, suffered from nightmares and
    showed extreme fear of medical and dental professionals, although she was showing
    some improvement in foster care. After placement, the minor began therapy. The
    minor’s teeth were in very poor condition and she was scheduled for evaluation of
    reconstructive surgery to correct a cleft palate. The minor had supervised visits and was
    excited to see father, who visited sporadically due to his employment. The minor was
    less happy to see mother but enjoyed the crafts and games mother brought to visits. The
    court sustained the petition, denied services to both parents and set a selection and
    implementation hearing.
    The court granted the parents’ request to appoint an expert to perform a bonding
    study. The study, conducted in July 2013, concluded that the minor had a strong positive
    bond to father and was less bonded to mother. The study further concluded that it would
    not be detrimental to terminate the minor’s relationship with mother. However, because
    the minor’s bond with father was more positive, it would more likely be harmful to
    terminate that relationship, although it was not clear that it would be detrimental to do so.
    Termination of the minor’s relationship with father was likely to cause her some lasting
    and potentially irreparable harm. The study noted that father was unlikely to be able to
    be the minor’s primary custodian and the court had to weigh the benefits of permanence
    against the harm to the minor from severing the relationship.
    The report for the selection and implementation hearing stated the minor
    continued to be developmentally on target and confirmed the need for reconstructive and
    oral surgery to deal with her cleft palate and severely decayed teeth. The minor remained
    2
    in therapy for anger control and needed clear limits and boundaries. Although both
    parents visited sporadically at the beginning of the case, after the frequency of visits was
    reduced at disposition, mother attended all visits and father attended most of them. Visits
    were generally positive and the minor appeared to enjoy them. The minor’s sleeping
    patterns had stabilized and she no longer had nightmares. The minor expressed a desire
    to remain as placed. The current foster parents were interested in adopting the minor who
    was beginning to establish a positive attachment to them. The report recommended
    termination of parental rights with a permanent plan of adoption to provide the
    permanence and stability the minor needed.
    An addendum, filed in August 2013, stated the minor continued to do well in the
    current prospective adoptive home. The report stated that termination of contact with the
    parents would not be detrimental, but would serve the minor’s best interests because the
    advantages of adoption outweighed the loss the minor would suffer from termination.
    Eugene Roeder, Ph.D., who conducted the bonding assessment, testified at the
    selection and implementation hearing. He confirmed his findings that there was a strong
    positive relationship between the minor and father and that the minor’s relationship with
    mother was not as strong. He further testified “it would likely be harmful” to terminate
    the relationship between the minor and father; that is, it would be likely to cause the
    minor some lasting and potentially irreparable damage. Dr. Roeder stated that while
    there was a preponderance of evidence that termination of the relationship would be
    detrimental to the minor, he could not say that the evidence rose to the level of clear and
    convincing. Roeder explained that the difference between detriment and harm was
    reparability, thus, while there would be some harm in terminating a positive relationship,
    detriment would occur only if the harm never went away even with a stable home and
    counseling. Consistency, security, and developing an alternative positive attachment
    were factors that helped overcome the harm. In Roeder’s opinion, it was clearly better to
    3
    allow the minor to establish permanent bonds with a family and have permanency than to
    be in an indeterminate status in order to continue a relationship with her father. Roeder
    testified that it was always better for a child to have permanence and security.
    The adoption worker testified that father had attended all visits available since July
    2013 and the minor was very excited to see him. She agreed with Dr. Roeder that the
    minor had a strong positive bond to father but did not agree that severing the bond would
    be detrimental. The adoption worker said the minor was doing extremely well in the
    current foster home and had a positive bond to the foster parents. The adoption worker
    acknowledged that the minor would suffer some harm from termination of parental rights
    but was able to attach to new parents and would be able to overcome the harm. The
    adoption worker testified that the minor’s therapist said the minor needed structure and
    boundaries. In the adoption worker’s opinion, permanency was more important for the
    minor than maintaining a relationship with father.
    The court terminated mother’s parental rights. As to father, the court was aware of
    the need to balance the benefit of adoption against the benefit to the minor of continued
    contact and noted Dr. Roeder was equivocal as to whether harm to the minor from
    termination of parental rights rose to the level of detriment. After considering the
    evidence, the court concluded it was clear that father’s parental rights should be
    terminated and ordered a final visit.
    DISCUSSION
    Father contends the court erred in terminating his parental rights because the
    beneficial parental relationship exception was shown by Dr. Roeder’s bonding study and
    testimony that there would be detriment to the minor in terminating parental rights.
    At the selection and implementation hearing held pursuant to section 366.26, a
    juvenile court must choose one of the several “ ‘possible alternative permanent plans for
    4
    a minor child. . . . The permanent plan preferred by the Legislature is adoption.
    [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate
    parental rights absent circumstances under which it would be detrimental to the child.”
    (In re Ronell A. (1996) 
    44 Cal. App. 4th 1352
    , 1368.) There are only limited
    circumstances that permit the court to find a “compelling reason for determining that
    termination [of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd.
    (c)(1)(B).) The party claiming the exception has the burden of establishing the existence
    of any circumstances that constitute an exception to termination of parental rights. (In re
    Cristella C. (1992) 
    6 Cal. App. 4th 1363
    , 1372-1373; In re Melvin A. (2000)
    
    82 Cal. App. 4th 1243
    , 1252; Evid. Code, § 500; Cal. Rules of Court, rule 5.725(d)(4).)
    Termination of parental rights may be detrimental to the minor when “[t]he
    parents have maintained regular visitation and contact with the child and the child would
    benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) However, the
    benefit to the child 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 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
    parent’s rights are not terminated.” (In re Autumn H. (1994) 
    27 Cal. App. 4th 567
    , 575.)
    Even frequent and loving contact is not sufficient to establish this benefit absent a
    significant positive emotional attachment between parent and child. (In re Teneka W.
    (1995) 
    37 Cal. App. 4th 721
    , 728-729; In re Beatrice M. (1994) 
    29 Cal. App. 4th 1411
    ,
    1418-1419; In re Brian R. (1991) 
    2 Cal. App. 4th 904
    , 924.)
    5
    Assuming regular visitation occurred, the question is whether the evidence
    established that the minor would benefit from continuing the parental relationship. It is
    apparent that the minor’s bond with mother was not strong enough to outweigh the
    benefit to the minor of adoption. However, there was evidence of a strong positive bond
    between the minor and father. Other evidence showed the minor had behavioral and
    emotional issues that were beginning to resolve in her foster placement and with therapy.
    The therapist said the minor needed structure and boundaries. Both the adoption worker
    and Dr. Roeder stated that permanence and stability were best for the minor. Roeder did
    testify that it was more likely than not that the minor would suffer detriment from
    severing the parent-child relationship, however, he was unable to say that there was
    compelling evidence detriment would result from termination of parental rights. There
    was also evidence the minor was able to make a positive attachment to her foster family,
    a factor Roeder suggested would mitigate the harm from termination of parental rights.
    Further, the minor was doing very well in the placement and expressed a desire to remain
    there. The court weighed all the factors and the evidence and concluded the exception to
    termination had not been established and that termination of parental rights was
    appropriate. While there is some evidence to support the existence of a beneficial
    parental relationship, substantial evidence supports the juvenile court’s conclusion that
    the benefits of permanence and stability outweighed the benefits to the minor of
    continued contact with father. (In re Jason L. (1990) 
    222 Cal. App. 3d 1206
    , 1214.) We
    may not reweigh the evidence to reach a different conclusion. (In re Stephanie M. (1994)
    
    7 Cal. 4th 295
    , 318-319.)
    6
    DISPOSITION
    The orders of the juvenile court are affirmed.
    BUTZ   , J.
    We concur:
    RAYE                 , P. J.
    ROBIE                , J.
    7
    

Document Info

Docket Number: C074898

Filed Date: 4/3/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021