In rе LORENZO C., a Person Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
v.
DEON C., Defendant and Appellant.
Court of Appeals of California, Fifth District.
*1334 COUNSEL
Janet H. Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, County Counsel, and Daniel R. Maher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DIBIASO, J.
Deon C. appeals from the order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his son, Lorenzo C.[1] We will affirm. We hold in part that a social service agency has no burden to acquire and introduce at the permanency planning hearing evidence specifically directed to the issue of whether the minor would benefit from continued contact with a parent. (§ 366.26, subd. (с)(1)(A).)[2]
STATEMENT OF CASE AND FACTS
In August 1994, the Kern County Superior Court, sitting as the juvenile court, adjudged Lorenzo C., born April 7, 1994, a dependent under section 360, subdivision (c), and removed the infant from his parents' physical custody. At birth, Lorenzo tested positive for cocaine and, thereafter, his mother had no contact with him. The father suffered from alcohol abuse to such a degree that he was periodically incapable of providing the infant with adequate care.
*1335 At a January 30, 1995, review hearing, the court ordered Lorenzo returned to his father's care, with the provision of family maintenance services. The father hаd completed a parenting skills class, participated in an alcohol recovery program, and commenced counseling. It was undisputed that the father showed genuine concern for his son.
Lorenzo remained with his father until January 1996, when the Kern County Department of Human Services (the department) removed the child. According to a section 387 supplemental petition filed by the department, the father had not complied with the family maintenance plan, continued to abuse alcohol, and also abused narcotic substances. In particular, the father stopped attending counseling in February 1995 and, though he subsequently enrolled in two other programs, he completed neither one expelled him and the other discharged him for noncompliance. He also failed to drug test on four occasions, tested positive three times for controlled substances, and admitted the daily use of alcohol.
Despite the father's problems, Lorenzo received good care. The father sheltered Lorenzo from the alcohol and drug abuse by relying on a close family friend, Meallen C., to care for the child.[3] After periodically staying with Meallen C. in 1995, the father and son moved in with her and her husband in November of that year.
On February 15, 1996, the court sustained the supplemental petition, removed Lorenzo from his father's physical custody, terminated family maintenance services and set the matter for permanency planning. Lorenzo remained in the care of Meallen C. and her husband as foster parents.
The court conducted a permanency planning hearing (section 366.26 hearing) in July 1996. According to the report prepared by the social worker for the hearing, the father had been arrested in late January 1996 and since that date had been incarcerated in a county facility. The father had had no contact with Lorenzo after approximately March 1, 1996. The social worker also reported that during the one-year period when the father had physical custody of Lorenzo, there was "some evidence of bonding" between the two. However, Lorenzo appeared to have a much stronger bond with his foster parents. The department recommended that the court free Lorenzo for adoption by the foster parents.
The juvenile court admitted the soсial worker's report into evidence at the section 366.26 hearing. Counsel for the father did not object to the admission *1336 of the report nor did he introduce any evidence on the father's behalf. The father formally waived his right to be present and did not personally attend the hearing.
At the section 366.26 hearing, it was uncontested that Lorenzo was adoptable, but counsel for the father urged the court to select guardianship as the permanent plan. Counsel relied on the father-son contacts and the "evidence" of bonding between the two reported by the social worker. He also theorized that "there doesn't appear to be any threat to the minor's sense of security if his relationship with his natural father is protected." The court disagreed and terminated the rights of the father as well as those of the mother.
DISCUSSION
I. Visitation
(1) The father first contends the juvenile court failed to "review the record of visitation" between him and Lorenzo before terminating his parental rights. He relies upon the statement in In re Monica C. (1995)
We find the department's reports were adequate. First, Monica C. does not support a conclusion that the department's section 366.26 report was deficient because it did not break down by hours and minutes the time the father visited with Lorenzo. At issue in Monica C. was whether the juvenile court at a 12-month review hearing (§ 366.21, subd. (f)) erred in holding that reasonable services had been extended where the reunification plan did not provide for any visitation whatsoever between parent and child. (In re Monica C., supra, 31 Cal. App.4th at pp. 306, 310.) The statement by the court about section 366.26, subdivision (c)(1)(A), did nothing more than provide some secondary support for the court's ultimate conclusion that a reunification plan which did not include a visitation element was inadequate under the circumstances. At best the remark was dictum. (In re Monica C., supra,
Second, we do not find the social worker's report to have been insufficient with respect to its references to past visitation. When the court orders a *1337 section 366.26 hearing, it also directs the agency supervising the dependent child to prepare an assessment which will include, in relevant part, a review of the amount of and nature of any contact between the minor and his or her parents since the time of placement. (§§ 366.21, subd. (i)(2), 366.22, subd. (b)(2).) There is no requirement in this statute that the social worker describe the "actual amount" of time, by minutes, hours or other measure, that a parent and child have spent together during the dependency.
Here, the social worker's report detailed the following contacts between Lorеnzo and his parents.
"From the time the minor was placed into protective custody on July 8, 1994 until November 21, 1994, there were no reported visits between the minor and his parents. The minor's father was in custody until sometime in October of 1994. The minor's mother's whereabouts remained unknown during this entire time. According to case records, the father of the minor visited with the minor on a regular basis, sometimes daily, from November 1994 until January of 1995. These visits were supervised by the caretakers. There is no information available as to the quality of these visits or the exact number of visits that took place during this time.
"On January 30, 1995, the court ordered the minor be placed with his father and Family Maintenance Services were provided. The case remained in the Family Maintenance Program for approximately one year....
"During the time that Family Maintenance Services were offered, the father and the minor lived off and on in the home of the `aunt and uncle' who had been the caretakers during the Family Reunification period. They also lived in at least two different motels during this time, as well as a number of apartments. There did appear to be some evidence of bonding between the father and the minor during the time that Family Maintenance Services were offered.
"On January 22, 1996, the minor was again placed into protective custody and placement [sic] with the caretaker `aunt and uncle.' ... Shortly after the removal of the minor from the father's home in January 1996, the father was arrested and has been incarcerated in the Kern County Sheriff's Lerdo Facility ever since. There has been no contact between the minor and his father since approximately March 1, 1996."
This summary well satisfies the statutory command that the social worker describe the amount and nature of any parent-child contact.
Third, the precise amount of time the father and Lorenzo spent together was not of consequence to the juvenile court's determination of the issue *1338 before it. It was undisputed that the father had physical custody of Lorenzo between January 1995 and January 1996, but had no contact with the child after March 1, 1996. Given Lorenzo's young age, the court could not have made the finding that some bond existed between the child and his father in the absence of evidence of regular contact between the two. The proper issue before the court, however, was whether the minor would benefit from continuing in a relationship with his father. (§ 366.26, subd. (c)(1)(A).) A breakdown of the actual amount of time that the father spent with Lorenzo during the course of the dependency would not have helped resolve this question.
II. Bonding Study
(2a) This note appeared in the social worker's report for the section 366.26 hearing: "A request has been made that the caretakers schedule a psychological evaluation for the minor. At the writing of this report, the psychological evaluation has not been performed...."
Seizing upon this comment and assuming the "psychologicаl evaluation" would have included a bonding assessment, the father claims the juvenile court abused its discretion by not ordering the completion of a bonding study before terminating his parental rights.[4] The father takes the position such an assessment would have provided information which would have compelled the juvenile court to find that termination of parental rights would be detrimental to Lorenzo.
The father's argument is neither cognizable nor meritorious. First, we agree with the department that the father waived the issue for purposes of appeal by not asking the juvenile court to оrder a bonding study. (3) Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. (See In re Aaron B. (1996)
To date, no published opinions address the effect of a parent's failure to requеst a bonding study for purposes of a section 366.26 hearing. Many of the decisions we listed above dealt with the lack of an objection to the admissibility of allegedly improper or inadequate evidence. (See Evid. Code, § 353.) Some, however, did pertain to a party's failure to ask the court to exercise its discretion. (See In re Anthony P., supra, 39 Cal. App.4th at pp. 640-642 [failure to request sibling visitation as part of a permanent plan]; In re Daniel D., supra, 24 Cal. App.4th at pp. 1830-1831 [failure to request alternative placement]; In re Daniel C.H., supra,
(2b) Here, the father did not look after his own legal rights by asking the juvenile court to exercise its discretion in favor of ordering a bonding study. (Sеe Sommer v. Martin (1921)
Alternatively, even if the father preserved the argument, it fails on its merits. There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order. In addition, although the preservation of a minor's family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental *1340 custody (§ 202, subd. (a)).[5] Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. (In re Marilyn H. (1993)
Neither of the cases mentioned by the father, In re Robert L. (1993)
We arе also unmoved by the assertion, founded upon a statement in In re Tabatha G. (1996)
The Tabatha G. court did not hold, or even hint, that a juvenile court at a section 366.26 hearing must order a bonding study to ensure that termination is in the dependent child's best interests.
Finally, it is difficult to envision how the court abused its discretion by not ordering a bonding study in this case. The appliсable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study. (In re Robert L., supra,
III. Benefit to the Child
(4) The father claims the court erred by basing its termination order on a comparison of the degree of bonding between Lorenzo and his father on the one hand and between Lorenzo and his foster parents on the other.
It was undisputed that Lorenzo was adoptable. In addition, the court had previously determined that Lorenzo could not be returned to his father's custody. Thus, the preferred permanent plan for Lorenzo was adoption (In re Tabatha G., supra,
The existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994)
In the context of these guidelines, the juvenile court in this case framed the issue as being: "whether the bond between the father and the child [was] strong enough for the child to overcome the statutory preference for adoption ...," and "consider[ed] the strength of the bond with the proposed adoptive parent as part of that equation [whether the statutory preference for adoption was overcome] when there is a proposed adoptive parent."
In effect, the juvenile court correctly measured the specific circumstances before it against the general principles articulated in Autumn H. Having done so, the court concluded that "the preference for adoption [was] not overcome by the extent of the bond the evidence indicates exists between the father and the son in this case." The overriding concern at the section 366.26 hearing was the provision of a stable, permanent home in which Lorenzo could develop a lasting emotional attachment with his caretakers. (In re Jasmon O., supra,
Moreover, the father overstates the influence upon the court's decision of Lorenzo's bond with his fost-adopt parents. Here, the record was void of any evidence that Lorenzo would be greatly harmed by a termination order. In fact, there was no evidence that he would benefit from a continuing relationship with his father. All the record showed was that there was "some evidence of bonding" between the father and son. Under these circumstances, the juvenile court could not reasonably have made any decision other than to terminate the father's rights.
*1343 We also reject the father's ancillary claim that the social worker's report was legally deficient because it did not address "what the real strength and quality of the bonding with his father actually was and whether the loss of that relationship would be a substantial loss for Lorenzo." The department had no such duty under any of the relevant statutes. As we explained earlier, the law requires the agency supervising the dependent child to prepare an assessment for the section 366.26 hearing which includes, in relevant part, a "review" of the amount of and nature of any contact between the minor and his or her parents since the time of placement. (§§ 366.21, subd. (i)(2), 366.22, subd. (b)(2).) These statutes do not require that the department address "the real strength and quality of the [parent-child] bonding" and whether termination will be a "substantial loss" for the child.
IV. Evidentiary Burden
(5a) Two assumptions undеrlie most of the father's arguments on appeal: (1) the department bore the burden of finding and presenting at the section 366.26 hearing evidence pertaining to the question whether the exception to termination described in section 366.26, subdivision (c)(1)(A), applied; and (2) the juvenile court was required to take affirmative steps to insure that the department satisfied this obligation.
Neither of these suppositions is correct. Several appellate courts have held that if there is clear and convincing proof of adoptability, the juvenile court must terminate parental rights unlеss the parent produces evidence sufficient to persuade the court that the child would benefit from continuing the parent-child relationship. (In re Tabatha G., supra,
(6) These opinions are consistent with the express language of sections 366.21 and 366.22, which impose no obligation on the agency to introduce, at the section 366.26 hearing, evidence which tends to either support or negate the possibility that the child might profit from continued contact with a parent. The agency is only required to prepare a study "regarding the likelihood that the minor will be adopted if parental rights are terminated." (§§ 366.21, subd. (i), 366.22, subd. (b).) Thus, the focus of this agency assessment is upon factors which relate to adoptability. (§§ 366.21, subd. (i)(3)-(5), 366.22, subd. (b)(3)-(5).) The law requires the agency to provide only limited information about previous parent-child contact, to wit, a *1344 "review" of the amount and nature of any contact between the minor and his or her parents since the time of placement. (§§ 366.21, subd. (i)(1), (2), 366.22, subd. (b)(1), (2).) We impart to the word "review" its common meaning of "to survey" or "to look back on" (Webster's New Internat. Dict. (3d ed. 1961) p. 1944). (See People v. Turner (1993)
In addition, there is no command in section 366.26 or the adoption assessment provisions of section 366.21, subdivision (i), or section 366.22, subdivision (b), that the agency at the section 366.26 hearing produce evidence which demonstrates the minor would or would not benefit from continued parental cоntact. This is in contrast to subdivision (f) of section 366.21 (12-month review hearing) or subdivision (a) of section 366.22 (18-month review hearing), both of which expressly place upon the agency the burden of proving "detriment." The Legislature obviously knows how to charge the agency with an evidentiary obligation in a dependency proceeding; we presume the Legislature would have explicitly imposed upon the agency some such affirmative duty with respect to section 366.26, subdivision (c)(1)(A), if it wanted the agency to have it. (See People v. Turner, supra,
The several cases we follow are also consistent with the overall plan and purpose of the dependency laws. By the time of the section 366.26 hearing, family preservation is not an object of the statutory scheme. Family preservation is of critical importance from the time the minor is removed from parental custody (§ 202, subd. (a)) through the reunification period. However, when reunification efforts cease, the scale tips away from the parent's interest in maintaining family ties and towards the child's interest in permanence and stability. (In re Marilyn H., supra,
Furthermore, if the agency concludes the minor is adoptable and argues for termination of parental rights at a section 366.26 hearing, the agency's objective is in direct conflict with a parеnt who desires to avoid termination in order to maintain a link with the child. To require the agency to produce evidence about whether the child might benefit from continued parental contact would compel the agency to bring up facts not essential to its case at the section 366.26 hearing. (See Evid. Code, § 500 [a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense asserted]; 1 Witkin, Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions, § 132 et seq., p. 116 et seq.)
(5b) On the other hand, it is reasonаble to impose the burden of proof upon a parent who objects to termination based on the alleged existence of the exception identified in section 366.26, subdivision (c)(1)(A). It is the parent who is concerned with avoiding termination by establishing that a continued parent-child relationship will be of positive consequence for the child. (See Evid. Code, § 500; cf. Norwood v. Judd (1949)
DISPOSITION
The judgment (order terminating parental rights) is affirmed.
Martin, Acting P.J., and Stone (W.A.), J., concurred.
A petition for a rehearing was denied June 9, 1997, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied August 13, 1997.
NOTES
Notes
[1] All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
[2] Section 366.26, subdivision (c)(1)(A), provides in relevant part that the juvenile court may refuse to terminate parental rights if "[t]he court finds that termination would be detrimental to the minor" because "the parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship."
[3] The deрartment placed Lorenzo with Meallen C. between late July 1994 and January 1995. It initially believed Meallen C. was the child's paternal great aunt. She was a licensed foster parent.
[4] There is no other reference to a psychological evaluation in the entire record. No such evaluation was ordered by the court, and none was a part of the case plan once the court set the matter for permanency planning.
[5] Section 202, subdivision (a), states in relevant part that the dependency statutes are intended "to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective." (Italics added.)
[6] Section 366.26, subdivision (c)(4), provides in relevant part: "If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor, or that one of the conditions in subparagraph (A), (B), (C), or (D) of paragraph (1) or in paragraph (2) applies, the сourt shall either order that the present caretakers or other appropriate persons shall become legal guardians of the minor or order that the minor remain in long-term foster care." (Italics added.)
[7] The father's charge that the evidence of the child's stronger bond with the foster parents was nothing more than the social worker's unsupported conclusion is beside the point. Because the father did not lodge any objection to this evidence when it was offered in the juvenile court, he has waived for purposes of appeal the claim that it was improperly admitted. (Evid. Code, § 353.)
[8] None of the other three exceptions to adoption in section 366.26, subdivision (c)(1), are relevant to this case.