In re A.H. CA4/1 ( 2015 )

Filed 1/6/15 In re A.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.H., a Person Coming Under the
Juvenile Court Law.
D065870
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ012235)
Plaintiff and Respondent,
v.
D.H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
D.H. (father) appeals an order of the juvenile court terminating the parental rights
to his minor child, A.H. (minor). Father contends the court erred in finding that the
beneficial parent-child relationship exception did not apply. (Welf. & Inst. Code,1
§ 366.26, subd. (c)(1)(B)(i).) Finding no error, we affirm the termination order.
FACTUAL AND PROCEDURAL BACKGROUND2
At the time of the termination hearing, minor was four years old and had spent
most of her life in the juvenile dependency system. Minor had been removed from her
parents' care three times in two years, which had resulted in more than 10 different
placements. The record shows that minor's mother (mother), who is not the subject of
this appeal, had a long history of drug and alcohol abuse and mental illness. Minor's
parents also have a history of domestic violence, including 10-20 reported incidents of
abuse, and both parents have lost custody of other children through the dependency
system.
After minor's birth in 2009, she was removed from her parents' care due to
mother's drug use. Approximately two years later, minor was again removed from her
parents' care because of mother's drug use and because of domestic violence between
mother and father. Minor was reunified with her parents in March 2011. Shortly
thereafter, mother relapsed and minor was removed from her care. Mother left the state
to receive substance abuse treatment.
1 All further statutory references are to the Welfare and Institutions Code.
2 Minor's counsel submitted a letter brief joining in the arguments and positions of
plaintiff and respondent San Diego County Health and Human Services Agency. (See
Cal. Rules of Court, rule 8.200(a)(5).)
2
In March 2012, the San Diego County Health and Human Services Agency
(Agency) placed minor with father, after the court then found he had the ability to be a
protective parent and he would not permit mother to have unsupervised contact with
minor. However, in August 2012, father told an Agency social worker that mother
moved back into the home in May 2012; that mother was again abusing drugs and
alcohol while minor was in her care; that mother had obtained a restraining order (RO)
against father as a result of alleged domestic violence, but that he and mother were still
living together; and that their situation was "out of control" and the Agency should "take
her [i.e., minor]" because he could no longer protect minor.
In mid-August 2012, the Agency filed a petition under section 300, subdivision (b)
on behalf of minor. The petition alleged minor had suffered, or there was a substantial
risk she would suffer, serious physical harm or illness based on the "inability of the
parent . . . to provide regular care for the child due to the parent's . . . mental illness,
developmental disability, or substance abuse." The court at the August 16, 2012
detention hearing ordered out-of-home detention for minor and supervised visitation for
both parents.
The Agency's September 5, 2012 jurisdiction/disposition report recommended that
minor remain in out-of-home care and that neither mother nor father be offered
reunification services. That report included an interview between mother and an Agency
social worker in which mother stated that she actually had moved back into the home in
November 2011 and that father asked her then not to disclose this fact to the Agency; that
father subjected her to "a lot of mental and emotional abuse" and slapped her across the
face about four months earlier, although he had not "'beat her'" since minor was born; that
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she was afraid of father and, as a result, obtained the RO; that father was verbally abusive
and threw her out of the house when minor was present, which caused minor to act out;
that father did not want anything to do with minor; and that minor did not want to be with
father.
The September 5 report also included an interview with father where he discussed
his relationship with mother. With regard to filing for divorce from mother, father stated,
"'[D]id I file because I wanted to or did I file because you didn't want to give me my child
back[?] I am not divorcing my wife, God put her in my life for a reason and I have to
believe in her.'" Father admitted he and mother were then "still in a relationship." Father
reported that mother was doing better, although he recognized she tended to relapse about
every six months; that he and mother need to forgive each other and were learning to
communicate as a couple; and that he was in counseling at his church. Father also
reported that "he didn't get to know his daughter [i.e., minor and] that there was no bond."
As noted, the Agency social worker in the September 5 report recommended no
reunification services for minor's parents. With respect to father, the report disclosed
father had multiple criminal convictions, including assault with a firearm and attempted
murder. Father's most recent conviction was in 2009 for inflicting corporal injury on a
spouse, in violation of Penal Code section 273.5.
Regarding visitation, the September 5 report noted father visited minor once a
week in a visit supervised by minor's caregiver. Father also called minor sporadically.
The caregiver reported that when mother and father called, however, their main purpose
was to complain about each other and not to speak to minor. As a result, the caregiver
asked that father and mother not be allowed to call or text message the caregiver.
4
The September 5 report concluded father has "demonstrated that he cannot set
limits and appropriate boundaries with the mother in the need to protect his daughter.
The father has indicated that he has no plans to separate from the mother and the mother
states that she has no current plans to separate from the father and the parents have
continued to engage in a toxic relationship that is filled with name calling, belittling,
hitting, lack of trust, lack of appropriate communication and placing [minor] in the
middle of harm[']s way. The parents have indicated that they have the support from the
church, however when times were tough the parents did not utilize their church support to
assist them in providing services, guidance or any type of help with the mother[']s
relapses and appropriate child care for the minor."
Despite the Agency's initial recommendation that father not be offered
reunification services, the September 5 report included a handwritten notation showing
the Agency reconsidered and recommended that father, but not mother, receive such
services.
As relevant to this appeal, the Agency's October 1, 2012 addendum report
recommended that father not be offered reunification services. The October 1 report
discussed an incident of domestic violence involving mother and father that occurred in
the early morning hours of September 16, 2012, when police responded to a call by
mother that father was drunk inside the home. The arrest report stated police saw blood
on father's hand, face and shirt. Father reported mother had struck him on the arm with a
table lamp and then scratched the top of his head. Father denied touching mother during
this incident. The arrest report also noted mother had no visible signs of injury.
5
When police arrived, they found mother was slurring her speech and smelled of
alcohol. Mother initially claimed father hit her in the face; she then changed her story
and stated that he tried to hit her in the face but that she blocked his blows. Mother also
claimed father was "'beating on [her].'"
The October 1 report noted that when police responded to this incident, father
initially said he did not know how he received the injuries on his head and suggested
maybe he had been "attacked by a cat." Father then told police that mother had struck
him on the arm with a lamp and scratched his head, after they had argued. According to
father, earlier in the evening he found mother and her girlfriend drinking at a bar. Father
admitted he drank with mother at the bar that night. Father also admitted there had been
several other instances of domestic violence between him and mother that had not been
reported.
Father told police that on the night of the domestic violence incident, he and
mother began arguing about mother's drug use and the pending case involving minor.
According to father, mother unexpectedly attacked him with a lamp when they got home.
Mother also tried to hit father with a table. She then jumped on top of him and began
punching him and using her acrylic nails to scratch his face and head. Police noticed
several broken items on the floor, including pictures and a lamp, and saw blood drops
throughout the home. Mother also had dried blood on her. Mother was later arrested.
In subsequent phone calls initiated by an Agency social worker regarding the
incident, mother denied attacking father and instead claimed it was father who had
attacked her. Mother claimed she was done with father, was going to seek an RO and
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was packing up her belongings and moving out. Mother also stated that she did not want
minor in father's care because he drank every night and had a "'chemical imbalance.'"
The October 1 report noted that on September 23, 2012 father called an Agency
social worker at 11:22 p.m. and left a voicemail message stating that, as a result of the
domestic violence incident, he also intended to seek an RO against mother. Father stated
he was tired of trying to help mother stay sober, and he wanted her out of his life.
The October 1 report noted that on September 27, 2012 mother contacted an
Agency social worker about visitation with minor. This report noted that during the
conversation, mother told the social worker she and father were still living together.
With respect to father, the Agency in its October 1 report recommended against
offering him reunification services. It noted father "has continued to make poor decisions
and lacks judgment regarding the care of his children. . . . Regarding the minor[,] . . . the
father has failed to provide a safe home for [her]," as minor has "been removed from the
care of her parent(s) 3 times in a 2 year period of time." It thus concluded father was
unable to protect minor because he was unable to set "limits and appropriate boundaries"
with mother despite the fact they continue to engage in a "toxic relationship."
The Agency's October 30, 2012 addendum report recommended father undergo a
psychological evaluation. That report included a summary of a conversation between
minor's caregiver and an Agency social worker in which the caregiver reported that minor
"says 'please tell CPS not to take me away.'" The October 30 report noted that minor had
smeared poop on the wall and pooped in her pants, and that certain other behaviors of
minor were "coming back," including screaming and yelling.
7
The October 30 report noted the Agency advised father of his case plan and the
services it recommend he complete. Father indicated he had participated in services in
the past and was aware of the need to complete them. Father was told that he would need
to complete therapy, domestic violence and substance abuse services. That report also
noted Father minimized the earlier domestic violence incident in which mother attacked
him with a lamp: Father told an Agency social worker that he was not drunk on the night
of the incident; that mother did not strike him; and that the police lied when they claimed
there were blood droplets throughout the home. Father added that the police lied, just
like the Agency social workers.
As noted, the Agency case plan prepared for father stated he was responsible for
attending a 52-week domestic violence offenders program. Father also was to participate
in individual therapy/counseling sessions to address among other issues his lack of
insight into mother's substance abuse and his failure to adequately care for minor as a
result, and in parenting and substance abuse classes/services. Finally, the case plan
required father to complete a psychological evaluation.
The contested jurisdictional/dispositional hearing was held on December 7, 2012.
At the conclusion of the hearing, the court sustained the petition, declared minor a
dependent, removed custody from the parents and ordered minor placed in licensed foster
care. The court ordered reunification services for father only and, as recommended by
the Agency, ordered him to participate in counseling, submit to random drug testing and
undergo a psychological evaluation.
The Agency's May 29, 2013 status review report recommended terminating
father's reunification services. Father reported he and mother were communicating and
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were "get[ting] along better." Mother provided a different story, stating father was
stalking her, she had no interest in reuniting with him and she felt unsafe in her own
home because of him. The May 29 report noted minor was then living in a licensed
foster home, her "daily functioning" was improving and minor was learning what
"positive behavior look[ed] like."
The May 29 report disclosed that father had enrolled in domestic violence classes
and that, although he had completed 14 sessions and visited with minor weekly, he was
"firm" regarding his intention to reunify with mother and did not understand the risk to
minor of doing so. The report noted father had made progress in therapy by taking the
Agency requirements more seriously; by working to understand the triggers of, and
learning to avoid the cycle that leads to, domestic violence; and by recognizing minor
needed protection from potential harm or exposure resulting from mother's substance
abuse.
Attached to the May 29 report was father's mid-December 2012 psychological
evaluation. The evaluator noted that father's "primary commitment continues to be
maintaining the relationship with [mother], with the protection of [minor] consistently a
second consideration. There was little in the documentation reviewed, my interview with
[father] or the psychological testing that gave any reason to believe that this is likely to
change." The evaluator also found it unlikely that father "would be truthful in his
dealings with the [Agency] at such point as [mother] again behaved in ways which placed
his daughter at risk." The evaluator concluded, "it is quite unlikely that [father] can be
relied upon to act as an appropriately protected parent."
9
The May 29 report also included summaries of communications between father
and Agency social workers. In one conversation in April 2013, father stated that he was
coming to terms with the fact he had abandoned mother during her recovery; that he and
mother were lacking communication skills but were talking more; and that mother's
relapse was his "'fault because of what, [he] was doing to her. If [he] was the husband
that [he] should be to her, then maybe she wouldn't have relapsed.'" Father reiterated that
when mother was not on pills, she was a "'good mother'" to minor.
In another conversation in mid-May 2013, father reported he and mother agreed to
say "goodbye" to each other and it was then time for him to focus on minor. Father also
indicated his therapy sessions were going well.
The May 29 report further noted that father visited regularly with minor; that in
early April, mother had an unauthorized overnight visit with minor; and that during this
same time period, mother and father together had an unauthorized unsupervised day visit
with minor. With regard to the latter visit, when questioned neither mother nor father
took any "responsibility as to the emotional risk that they had placed [minor] in to have a
visit with both of her parents present." The report further noted minor's parents blamed
the Agency for "everything" that was happening with minor.
With regard to the unauthorized overnight visit between minor and mother, the
May 29 report noted that father viewed that visit as a "blessing"; that minor was not in
danger; and that it was "good" for minor to spend time with mother alone and with both
her parents at the same time. When questioned, father stated he did not go and pick up
minor from mother because minor was "in good hands" and "was cared for and loved."
10
A few days later, an Agency social worker spoke to minor's caregiver who
reported "they were back to square one with [minor] and tantrums" because of the visits.
The caregiver reported that minor expressed concern about living with mother again, and
worried that mother would "start drinking and smoking again."
The May 29 report concluded minor should not be returned to the care of father
because he "has demonstrated numerous times that he does not have the ability to parent
his daughter on his own," as shown by the fact that "he does not have the girth to stay
away from the mother and to demonstrate that he can protect his daughter from harm or
danger that the mother can afflict by her use of narcotics and alcohol." Although that
report noted father was participating in services, it concluded he still lacked "insight as to
the role that he has played in the relationship. It is eviden[t] that the father tells different
people what he thinks they want to hear. The father has not been forthcoming with his
therapist or his domestic violence counselor about the unsupervised visit that he had with
the mother and the child. The father states that [he] is going to file for divorce/that he has
filed for divorce. This is not the first time that the father has stated this. In fact during
the last dependency the father had stated that he was filing for divorce from [mother].
When the [Agency social worker] confronted the father on 08/27/2012 he stated 'did I file
because I wanted to or did I file because you didn't want to give me my child back. I am
not divorcing my wife, God put her in my life for a reason and I have to believe in her.'
Now the father states that he has no plans to re-unite with [mother] that their relationship
is over[;] however, they continue to have contact via the telephone, [social media] and by
texting. . . . [¶] . . . [¶] The parents want to blame the Agency for the actions of their
daughter. What the parents failed to realize is that [minor] would not be a dependent if
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the mother was not abusing alcohol and prescription drugs. That [minor] would not be a
dependent if the father was able to protect [her] from the mother. The parents have made
selfish choices that were in the best interests of themselves, not what was in the best
interest of their child."
As a result, the May 29 report recommended the court make among others a
finding that returning minor to the custody of father would create a substantial risk of
detriment to the child's physical and emotional well-being because father had not made
substantive progress with the provisions of his case plan. The Agency report further
recommended the court terminate father's reunification services and set a section 366.26
hearing to determine an appropriate plan for minor.
The record includes a May 29, 2013 report by minor's court appointed special
advocate (CASA). The CASA reported minor has had "a lot of upheaval in her short life
which appears to have made her suspicious and wary of new people and situations," as
reflected by minor's concern over the "badge" worn by the CASA while attending a visit
between minor and mother. The CASA further reported when minor's routine is
interrupted, minor has "difficulty coping appropriately, displayed in extreme tempter
outbursts and lack of control of her toileting."
The CASA reported minor was thriving in her current placement. Minor's foster
parents were willing to be considered a concurrent placement for minor, as the foster
parents already had adopted both of their daughters. The foster parents reported to the
CASA that minor was following the family rules regarding sharing, bedtime and playing
nicely and that minor enjoyed preschool.
12
The CASA report noted that father's once-a-week visits with minor were
appropriate. However, during one visit in late April 2013, it was reported father allowed
minor to "secretly talk on the phone to [mother] when he took her to the bathroom," and
he told minor not to tell anyone.
A May 29, 2013 Agency addendum discussed a telephone call between mother
and an Agency social worker in which mother claimed father was stalking her and
threatening to kill her. Mother disclosed she was scared for her safety and well-being.
Father, in response, stated he visited mother in the hospital a few days earlier; that a few
days before the hospital visit, he met and spent time with mother, including giving her
money and taking her shopping; and that mother then blamed him for the dependency of
minor. The Agency reiterated in this report its view the parents were involved in a "toxic
relationship" and "always find themselves back together again in the ongoing tumultuous
cycle of [their] relationship."
In a July 22, 2013 addendum, the Agency reconsidered its recommendation that
father's reunification services be terminated after father's therapist disclosed in a
treatment report that father had filed for divorce and was learning to "identify red flags in
people who are relapsing." The treatment report also noted father recognized that having
mother in his life was "'like playing Russian Roulette.'"
Regarding visitation, the July 22 addendum noted father had four "positive"
supervised visits with minor between mid-June and mid-July 2013 However, during the
last visit an Agency social worker reported minor played with father "as if he was her
husband," including calling father "babe."
13
The October 9, 2013 CASA report prepared for the 12-month permanency hearing
noted minor was thriving in her current placement, where two other adopted children
resided, including one child that was roughly the same age as minor and was in the same
preschool class. The CASA noted the three girls considered themselves sisters.
According to the CASA, minor's placement "seems to provide the structure and
consistency [minor] craves."
Minor's foster mother reported to the CASA that after minor returned from a
parental visit, minor was "confused, weepy, and short-tempered." It was further reported
that minor also asked her foster mother if the foster mother thought minor was going to
go back and live with mother and father, as suggested by mother.
The CASA reported father's visits with minor were positive. Father and minor
both seemed to enjoy the visits and their interaction was appropriate. When minor asked
father questions, the CASA observed father gave minor short, but honest answers,
including to difficult questions posed by minor such as, "[W]hy 'he and [mother] fight.'"
The CASA recommended the Agency give some consideration to offering mother
reunification services to help mother maintain her sobriety, improve her parenting skills
and avoid domestic violence, "especially now that she and [father] say they are together
and planning to co-parent [minor]."
The Agency's October 9, 2013 status review report disclosed mother and father
"have rekindled their relationship with one another and are residing together. The
address as to their residence is unknown as they are residing with friends and the friends
do not want the information released. The mother has reported that she and the father are
in the process of locating an apartment" to move into.
14
The October 9 Agency report confirmed that minor was asking when she would
return to living with father and mother. Minor stated her parents had moved in together,
and minor was going to live with them soon. When questioned, minor indicated she
learned this information from mother and father. The Agency social worker found it
concerning that mother and father were speaking to minor about their personal life and
about minor coming home to live with them as a family.
The October 9 Agency report also noted that father exceeded the number of
allowed absences for his domestic violence classes; that father had not been honest with
the facilitator of those classes regarding his relationship with mother; and that father
"stated that he realizes he cannot reunite with [minor] if he is with [mother].
Subsequently the father was terminated due to attendance and dishonesty with the
program." The Agency concluded that it would be a detriment to return minor to father's
care, inasmuch as he had demonstrated on myriad occasions the inability to parent minor
alone and the inability to protect minor from harm or danger inflicted by mother due to
her dependence on drugs and alcohol. Although father participated in services, the social
worker noted father had not gained any insight "as to the role that he has played in the
relationship between him and the mother." As a result, the Agency also recommended
terminating father's reunification services.
The record includes a supplemental report by the CASA. In that supplemental
report, the CASA noted mother's visits with minor had been suspended because mother
had missed three visits in two months. That report also noted father had been asked not
to return to his domestic violence classes because of absenteeism. Father reported he
missed the classes because of his work schedule.
15
In connection with the 12-month review hearing, the Agency submitted an
addendum report dated November 6, 2013. That report confirmed that mother and father
were back together. It noted that, per minor's foster parents, minor was having
"screaming fits and anger" and her behavior was disrupting their two daughters; that
minor had a "complete breakdown" which started over a toy; that minor was throwing
herself against the door of her bedroom during timeouts; and that, as a result, the foster
parents requested minor be removed from their home because minor's behavior was
"'severely disrupting'" their family.
During a follow-up conversation between an Agency social worker, on the one
hand, and mother and father, on the other hand, the social worker explained minor's
placement was being changed due to minor's disruptive behavior. Father, however, stated
minor was being removed from her current placement because of "physical abuse." The
November 6 report noted father and mother continued to blame the Agency for minor's
poor behavior and refused to acknowledge their role in the multiple removals of minor
from their care.
The November 6 report noted that father received two years and almost five
months of reunification services during the initial and subsequent removal of minor from
her parent's care; that, in the most recent dependency proceeding, he has received one
year and about three months of reunification services; and that, combined, he has
received services for about three years seven months. Despite receiving such extensive
services, the Agency noted father had "yet to gain insight," the "knowledge" and the
"skills as to how he can safely protect [minor] from people who are abusing drugs and
alcohol."
16
At the contested 12-month review hearing, after hearing the evidence, including
the reports and their attachments, the testimony of father's therapist and an Agency social
worker, and after considering the extensive services already provided father, the court
found the return of minor to the custody of father "would create a substantial risk of
detriment to the child's physical or emotional well-being" The court also found that
"reasonable services have been provided to or offered [father] which were designed to
facilitate the return of [minor] to him and alleviate or mitigate the causes which
necessitated the child's placement in foster care"; that, while father has made "some
progress" in complying with the case plan, he has not made "substantive progress" based
on the issue that exists between father and mother and their relationship; and that,
because there "is not a substantial probability that the child will be returned to the
physical custody of the father within the next three months -- that will be by the 18-
month mark -- which is sometime in mid-February 2014," father's reunification services
were terminated.
In the Agency's March 17, 2014 section 366.26 report, it recommended the court
order a permanent plan of adoption for minor. That report noted mother had been named
as a witness in a shooting incident that occurred in San Diego in early December 2013.
An officer who interviewed mother in connection with that incident reported mother
smelled of alcohol and her behavior was suggestive of being under the influence. In
addition, the March 17 report noted mother had been arrested in late December 2013 in
Florida and, as of late February 2014, mother remained incarcerated.
With respect to father, an Agency social worker acting as an "adoptions worker"
spoke briefly with father in early January 2014. Father stated "'[t]hings have changed a
17
lot'" between him and mother. The March 17 report disclosed the adoptions worker left a
message for father on January 6, asking he return the call. When father did not call back,
the adoptions worker contacted father on January 9. During that conversation, father
stated he was in the process of divorcing mother because she took a bus to Florida to
pursue a relationship with a former boyfriend.
The adoptions worker attended a one-hour visit between father and minor in mid-
January 2014. Per the March 17 report, the adoptions worker noted that father and minor
were comfortable together; that minor called father "'Daddy'" when she first saw him;
that, at the conclusion of the visit, minor went to the prospective adoptive mother who
had been caring for minor since early November 2013, stating, "'Hi Mommy'"; and that
minor left happily with her current caregiver. The adoptions worker did not observe any
crying, sadness or any other behaviors from minor indicative of emotional distress when
minor and father parted.
The adoptions worker reported after the visit she asked father about what he
thought was the best permanent plan for minor. The March 17 report noted father
"appeared to take a non-committal stance as he struggled to articulate a definitive
response" to the question, at one point appearing supportive of adoption with minor's
current caregivers, and at another point stating he wanted minor back. Father disclosed
he was concerned about whether he could finically support minor, as he was already
struggling to pay monthly child support to his two nondependent children.
The March 17 report included a summary of a conversation between minor and the
adoptions worker that took place during a home visit in February 2014. The adoptions
worker asked minor about having a "forever family." Minor in response asked, "'Will I
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go back with my mommy [i.e., mother]?'" Minor, however, did not inquire about living
with father, and when asked where she wanted to live if it was not with mother and
father, minor responded, "'Here with my mommy and daddy here.'" The adoptions
worker noted in the March 17 report that minor's caregivers were "excited and
enthusiastic to make [minor] a permanent member of their family" through adoption and
that minor had developed a "bond to both her prospective adoptive parents and her older
sister." The Agency thus recommended the court terminate the rights of the birth parents
and order a permanent plan of adoption for minor.
The March 17, 2014 CASA report also recommended that minor remain in her
current foster placement and that adoption be selected as the permanent plan. The CASA
noted that minor's current placement was "providing [minor] with love, stability, and the
consistency that [minor] needs in order to feel safe and protected"; that minor in return
appeared grateful; and that minor referred to her foster family members as "'Mommy,'"
"'Daddy'" and "'Sissy'" and wanted to be a part of their lives as much as they wanted to be
a part of her life.
The Agency's April 21, 2014 addendum noted minor had two visits with father
that appeared to go smoothly. However, when the adoptions worker followed up with
minor's caregivers regarding minor's behavior after the visits, they "noticed a significant
increase in overall defiant and anxious behaviors" by minor. After one of the visits,
minor told the caregivers that father "'said the Court says I will go back to live with him'"
and that he also told minor, "'We don't have to go to [a restaurant] anymore, we can go to
my house now.'" Minor also reported she and father argued when minor said she did not
19
want to go to father's home for visits, but instead wanted the visits to continue at the
restaurant. In response, father allegedly told minor, "'It's all your fault.'"
The adoptions worker stated in the April 21 report that, in her opinion, a parent-
child bond did not exist for minor towards father; that, while minor enjoyed spending
time with father, their relationship did not rise to that of a parental role; and that it was
apparent that minor looked to her caregivers as her primary parental figures and they
were the ones minor turned to in order to meet her physical and emotional needs.
At the April 28, 2014 contested hearing, the court received into evidence the
additional Agency reports and heard the testimony of the adoptions worker, who also was
separately cross-examined by father and mother. The adoptions worker opined that the
benefits minor would receive from adoption outweighed any detriment she would incur if
father's parental rights were terminated.
Specifically, the adoptions worker opined that, although there was a "relationship"
between minor and father, there was not a "strong level of attachment" of minor to father.
The adoptions worker based her opinion on observations of minor's behavior both before
and after visits with father. The adoptions worker also noted that minor appeared to
enjoy the visits and accepted that they happen. The adoptions worker also that, when the
visits ended, minor returned to the home of her caregivers, "her family, where she has
formed a strong bond both to her prospective adoptive parents and to her foster sister in
the home."
The court admitted into evidence the stipulated testimony of father. He testified
that he no longer was in a relationship with mother; that they have not spoken since
December 2013; that he has no intention of allowing mother back into his life; that he did
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not make the statements attributed to him after his visits with minor; that he loved minor
and he wanted his parental rights to remain intact so they could work on "improv[ing
their] father/daughter relationship" so that minor could return living with him.
After hearing closing argument, including rebuttal, the court found by clear and
convincing evidence that minor was adoptable. The court found minor's current
caregivers were "committed" to adopting minor and found there were about 41 families in
San Diego that otherwise would be willing to adopt her.
The court next turned to the issue of the parent-child beneficial exception. As
relevant here, the court found father had "maintained regular contact and visitation with
the child" for purposes of section 366.26, subdivision (c)(1)(B). The court also found that
father was gracious, warm and appropriate with minor during the visits and that "any
adult that would provide that kind of care and attention and comfort to a child and
support to a child, a child would benefit from a continuing relationship."
The court next addressed whether there was a "compelling reason that the court
would think that this child would be harmed if the relationship" with father was
terminated. The court framed this issue as follows:
"This is a multifactorial analysis that is not only assisted by the statute itself but by
the case law that has interpreted the statute, and here is where we would analyze two
things, what it means -- what the parent/child bond means, as I've stated before; and, No.
2, when we get down to it, the second criteria, the second definitional assistance the
appellate court has given us is whether or not the child . . . would benefit more by being
in the prospective adoptive home than being with the parents." In further analyzing this
21
issue, the court noted the issue was somewhat, but not quite, related to the "best interest
of the child."
The court noted father had a prior dependency history with children being lost to
the system; that minor had been in the dependency system for most of her life, beginning
in 2009; and that, as a result, minor had lived out of the parent's home and away from
father for most of her life. The court found these facts relevant to the analysis of the
parent/child bond for purposes of this exception.
Focusing on the nature of the relationship between minor and father, the court
noted that for most of minor's life, father had not provided minor with housing, care,
education, daily love, food, and comfort; and that, as such, the relationship between
father and minor was similar to that of "a benevolent visitor who is named . . . 'Daddy.'"
Next, focusing on the nature of the relationship between minor and her foster
family, the court found it was "very good." In addition, the court found that minor
needed to be in a "structured home environment with predictable routines"; that minor
had been in a "nightmarish scenario" of being in multiple placements during her young
life; and that minor needed to know "for sure what her future's going to be" and who will
be her "family because of all of this instability and movement and irregularity in terms of
her living circumstances . . . ." As a result, the court found there was no "compelling
reason why this child's going to be harmed if the parent/child bond is terminated." It thus
found "by clear and convincing evidence that the child would be better off in the adoptive
-- prospective adoptive home" than with father.
22
DISCUSSION
Father contends the court erred by rejecting his claim under section 366.26,
subdivision (c)(1)(B)(i) that the beneficial parent-child relationship exception to adoption
applied. We disagree.
"'At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for 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.)
"Once the court determines the child is likely to be adopted, the burden then shifts
to the parent to show that termination of parental rights would be detrimental to the child
under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental
rights when '[t]he parents have maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.'" (In re S.B. (2008) 164
Cal. App. 4th 289, 297.)
Here, there is no dispute that minor was likely to be adopted and that father
maintained regular visitation and contact with her, which findings, we note, are supported
by substantial evidence in the record. (In re S.B., supra, 164 Cal.App.4th at pp. 296-
297.) As such, the issue in determining the applicability of the beneficial-relationship
exception is whether father met his burden of establishing a "compelling reason" that
23
minor would "benefit" from a continuing relationship with father. (See § 366.26, subd.
(c)(i)(B)(i).)
"The 'benefit' prong of the exception requires the parent to prove his or her
relationship with the child '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.' [Citations.] No matter how loving and frequent the contact, and
notwithstanding the existence of an 'emotional bond' with the child, 'the parents must
show that they occupy "a parental role" in the child's life.' [Citations.] The relationship
that gives rise to this exception to the statutory preference for adoption 'characteristically
aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day
contact is not necessarily required, although it is typical in a parent-child relationship.'
[Citation.] Moreover, '[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary
case that preservation of the parent's rights will prevail over the Legislature's preference
for adoptive placement.'" (In re K.P. (2012) 203 Cal. App. 4th 614, 621.)
"The exception must be examined on a case-by-case basis, taking into account the
many variables which affect a parent/child bond. The age of the child, the portion of the
child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction
between parent and child, and the child's particular needs are some of the variables which
logically affect a parent/child bond." (In re Autumn H. (1994) 27 Cal. App. 4th 567, 575–
576.)
Although findings made pursuant to the exception must be supported by
substantial evidence, a court exercises its discretion in weighing the evidence and in
24
determining whether there is a compelling reason that termination of parental rights
would be a detriment to the child. (In re K.P., supra, 203 Cal.App.4th at p. 622; In re
Bailey J. (2010) 189 Cal. App. 4th 1308, 1315 [noting it is a "'quintessentially'
discretionary decision" for a court to "determine the importance of the relationship in
terms of the detrimental impact that its severance can be expected to have on the child
and to weigh that against the benefit to the child of adoption"].)
"On review of the sufficiency of the evidence, we presume in favor of the order,
considering the evidence in the light most favorable to the prevailing party, giving the
prevailing party the benefit of every reasonable inference and resolving all conflicts in
support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "'[E]valuating
the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling. . . . Broad deference must be shown to the trial judge.'" (In re
Jasmine D. (2000) 78 Cal. App. 4th 1339, 1351.)
The record in the instant case shows that minor lived with her father for less than a
year, despite the fact minor was four years old at the time of the section 366.26 hearing;
that minor, in her young life, already had been removed from her parent's care three
times, which resulted in more than 10 different placements; that, in the most recent
dependency proceeding, which is the subject of this appeal, the Agency removed minor
from her parent's care in August 2012, and, thus, at the time of the section 366.26
hearing, minor had not lived with father for almost two years; that, although father
routinely visited minor, those visits were supervised, usually lasted no more than one or
two hours and took place no more often than once a week, and sometimes less often; that,
when the supervised visits between minor and father ended, minor neither showed nor
25
expressed any sadness or displayed any other behaviors suggestive of distress; that, after
visiting with father, minor "happily" returned to the care of her foster parents/family; that,
when the Agency adoptions worker spoke to minor shortly before the section 366.26
hearing about having a "forever family," minor at no time inquired about living and/or
being reunited with father, instead asking only about mother and confirming if that was
not possible, she wanted to live with her foster "mommy" and "daddy"; that, on visits
with father, minor sometimes treated him "as if he was her husband," rather than her
father; and that the adoptions worker opined there was not a "strong level of attachment
of minor to father."
From the foregoing, we conclude substantial evidence supports the court's finding
that father did not show he occupied a "'parental role'" in minor's young life (see In re
K.P., supra, 203 Cal.App.4th at p. 621) and that father's relationship with minor was akin
to that of "a benevolent visitor who is named . . . 'Daddy.'" (See In re I.R. (2014) 226
Cal.App.4th. 201, 213 [noting that "[e]ven frequent and loving contact is not sufficient to
establish this benefit absent a significant, positive emotional attachment between parent
and child"]; In re Mark L. (2001) 94 Cal. App. 4th 573, 580–581 [noting that "'on appeal
from a judgment required to be based upon clear and convincing evidence, "the clear and
convincing test disappears . . . [and] the usual rule of conflicting evidence is applied,
giving full effect to the respondent's evidence, however slight, and disregarding the
appellant's evidence, however strong"'"].)
Moreover, the record amply supports the finding that father could not establish
that his relationship with minor promoted the well-being of minor to such a degree that it
26
outweighed the well-being minor would gain in a permanent home with new, adoptive
parents. (See In re K.P., supra, 203 Cal.App.4th at p. 621.)
On the one hand, the record shows that time and time again father failed to
recognize the need to be a protective parent for minor and put minor's interests and needs
above his own; that father instead continually demonstrated his primary commitment was
to mother and his protection of minor was a secondary consideration; that, based on
father's psychological evaluation, it was unlikely father would ever change even though
he repeatedly recognized his relationship with mother put minor at substantial risk; that,
although father repeatedly stated he was through with mother and intended to divorce her,
father and mother always ended up back together; that father lacked the skills to safely
parent and protect minor, despite receiving services for about three years and seven
months; that father believed mother was a "good mother" to minor when mother was not
using drugs and often blamed the Agency and/or others for the dependency of minor and
mother's problems; and that minor tended to act out after visits, including smearing feces
on the walls and throwing tantrums and, shortly before the section 366.26 hearing,
engaging in defiant and anxious behaviors after a visit with father.
On the other hand, the record shows that, in the months leading up to the section
366.26 hearing, minor was thriving in her then-current placement with her perspective
adoptive family; that, as noted, minor referred to her perspective adoptive mother and
father as "Mommy" and "Daddy" and their child, her perspective adoptive sister, as
"Sissy"; that, per the Agency and minor's CASA, minor's then-current placement
provided minor with the love, stability and consistency minor needed to feel safe and
protected; that minor turned to her perspective adoptive family to meet minor's physical
27
and emotional needs; and that minor's perspective adoptive family were "excited and
enthusiastic" to make minor a permanent member of their family.
This evidence easily supports the finding that the benefit of minor continuing her
relationship with father was outweighed by the benefit of minor living in a permanent
home with new, adoptive parents. (See In re K.P., supra, 203 Cal.App.4th at p. 621.)
Father nonetheless contends the court misapplied the test to establish the
beneficial-child exception to termination of parental rights. We disagree. Although the
record shows the court found that father was gracious and warm with minor and that as
such, "any" adult who provides such care would be a benefit to "a child," the record
shows the court properly went on to focus on the nature and quality of the bond between
father and minor and also whether minor would benefit from continuing in her
relationship with father in contrast to having a permanent home with her prospective
adoptive family.
We thus conclude the court ultimately applied the proper test and analyzed the
requisite factors in determining the beneficial parent-child exception did not apply in this
case. That is, although the court appeared to recognize that "'[i]nteraction between
natural parent and child will always confer some incidental benefit to the child" (In re
C.F. (2011) 193 Cal. App. 4th 549, 555), importantly, it further recognized that the bond
between a parent and child, and the benefit of continuing that relationship versus
terminating parental rights and placing child in a permanent home, were key analytical
considerations in determining this exception did not apply in this case.
Finally, it is axiomatic that reviewing courts will "'uphold judgments if they are
correct for any reason, "regardless of the correctness of the grounds upon which the court
28
reached its conclusion." [Citation.] "It is judicial action and not judicial reasoning which
is the subject of review."'" (In re Jonathan B. (1992) 5 Cal. App. 4th 873, 876.) Here, as
noted, substantial evidence supports the determination that father did not satisfy his
burden to show the beneficial parent-child relationship exception applied in this case.
DISPOSITION
The order terminating father's parental rights is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
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