In re N.C. CA2/6 ( 2023 )

Filed 3/14/23 In re N.C. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.C., a Person Coming 2d Juv. No. B323332
Under the Juvenile Court Law. (Super. Ct. No. J073014)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
Father J.C. (Father) appeals from the juvenile court’s order
terminating parental rights to his daughter, N.C., and selecting
adoption as the permanent plan. (Welf. & Inst. Code,1 § 366.26.)
He contends the court erred in finding the beneficial parental
1Further
unspecified statutory references are to the
Welfare and Institutions Code.
relationship exception inapplicable. (Id., subd. (c)(1)(B)(i).)
Mother is not a party to this appeal. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Newborn N.C. spent eighteen days in the neonatal
intensive care unit after testing positive for fentanyl and
methamphetamine at birth. She required daily doses of
morphine to ease her withdrawal symptoms. The Ventura
County Human Services Agency (the Agency) placed her with a
confidential resource family upon discharge and allowed Father
and Mother supervised visitation twice a week. N.C. has not
lived with them at any time since birth.
The Agency filed a juvenile petition (§ 300) alleging N.C.’s
mother abused drugs while pregnant. The petition alleged
Father had a history of drug-related arrests and suffered from
mental health issues. The juvenile court sustained the petition
and bypassed reunification services for both parents. It ordered
their existing visitation schedule to remain in place and set a
contested selection and implementation hearing. (§ 366.26.)
Section 366.26 report and pretrial memorandum
The Agency’s section 366.26 report described parents as
making “significant changes in their diligence and consistency to
attend family time” and providing N.C. “with adequate nurturing
care” during their visits. Father showed affection toward his
daughter and took turns with Mother feeding and holding her.
However, N.C. had started showing “noticeable concerning
reactions during family time sessions with the parents,” such as
starting “to scream, cry, and becoming noticeably more
irritable/harder to soothe.” The case worker also expressed
concern about parents’ ongoing failure to seek substance abuse
treatment.
2
The Agency recommended terminating parental rights to
allow adoption as the permanent plan. The report found doing so
“would not be detrimental to [N.C.], as she does not have a
significant parental bond with any other adult(s), other than her
current prospective adoptive mother.” It stated N.C. would
“benefit from the care and supervision” she would receive in a
permanent home.
Section 366.26 hearing
N.C. was eight months old at the time of the section 366.26
hearing. A social worker testified about the family who had
cared for N.C. since her discharge from the hospital eight months
earlier. The social worker also answered questions about
Father’s and Mother’s supervised visits. She testified they “did a
good job” interacting with N.C. but missed several visits and
often arrived late. Father and Mother testified about the bond
they had developed with N.C. despite their limited time together.
They acknowledged it was best for N.C. to remain with the
resource family. They nevertheless wished to remain part of her
life and requested the court order legal guardianship rather than
terminate their parental rights.
After closing remarks, the juvenile court stated on the
record that Father and Mother showed “great love” for N.C.
during their visits. “But based on the age of the child,” the court
concluded, “the amount of time the parents have been able to
spend with the child, the extended time the child now has had in
this child’s entire life with a single caregiver, the Court does not
find that there would be any detriment to the child should that
relationship be terminated.” The court found by clear and
convincing evidence that N.C. would be adopted and terminated
parental rights. Father appealed.
3
DISCUSSION
Father contends the juvenile court erred when it found the
beneficial parental relationship exception did not apply. There is
no error.
The juvenile court selects and implements a permanent
plan for a dependent child at a section 366.26 hearing. (In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) Adoption is the
“‘permanent plan preferred by the Legislature.’” (In re D.O.
(2016) 247 Cal.App.4th 166, 173; Caden C. at p. 630.) The court
must first determine by clear and convincing evidence “that it is
likely the child will be adopted.” (§ 366.26, subd. (c)(1).) If so, the
court must “terminate parental rights and order the child placed
for adoption” unless a statutory exception applies. (Ibid.) One of
these is the beneficial parental relationship exception. (Id., subd.
(c)(1)(B).) It applies when a parent shows: “(1) regular visitation
and contact, and (2) a relationship, the continuation of which
would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (Caden C. at p. 631,
italics omitted.) The parent must prove these three elements by
a preponderance of the evidence. (Id. at p. 636.)
A hybrid standard of review applies to the juvenile court’s
findings. We review the factual determinations for substantial
evidence. (Caden C., 11 Cal.5th at pp. 639-640.) The ultimate
decision whether to apply the exception, however, “is
discretionary and properly reviewed for abuse of discretion.”
(Ibid.) “A court abuses its discretion only when ‘“‘the trial court
has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination’”’” such
that “‘“‘no judge could reasonably have made the order.’”’” (Id. at
p. 641.)
4
Regular Visitation
No dispute existed below as to whether Father contacted
and visited with N.C. regularly. We proceed directly to the
second and third elements of the exception.
Beneficial Relationship
The second element requires the court to determine
whether the child has a “substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship.” (Caden
C., supra, 11 Cal.5th at p. 636.) The court looks to several
factors, “such as ‘[t]he 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 [the] child, and the
child’s particular needs.’ [Citation.]” (Id. at p. 632.) A “showing
the child . . . derive[s] some benefit from continuing a relationship
maintained during periods of visitation” is not a sufficient ground
to depart from the statutory preference for adoption. (In re Angel
B. (2002) 97 Cal.App.4th 454, 466.) Friendly or affectionate visits
with a parent are not enough. (Id. at p. 468.)
Substantial evidence supports the juvenile court’s finding
that Father did not establish a beneficial relationship with N.C.
The Agency took the child into protective custody at birth and
placed her with a resource family when the hospital discharged
her. As a result, she did not live with Father during any time
before the section 366.26 hearing. The only interactions observed
between Father and N.C. occurred during supervised, twice-
weekly visits. Father “provide[d] her with adequate and
nurturing care” but this evidence did not show N.C. had the type
of “substantial, positive, emotional attachment” that satisfies the
second element of the exception. (See In re Bailey J. (2010) 189
5
Cal.App.4th 1308, 1316 [exception did not apply where child
taken into protected custody shortly after birth and mother’s
supervised weekly visits “amounted to little more than playdates
for him with a loving adult”].)
Detriment of Termination
Even if Father could establish that N.C. would benefit from
a continuing relationship, the juvenile court found that
terminating Father’s parental rights would not be detrimental to
N.C. The court did not err.
The court “acts in the child’s best interest in a specific way:
it decides whether the harm of severing the relationship
outweighs ‘the security and the sense of belonging a new family
would confer.’ [Citation.]” (Caden C., supra, 11 Cal.5th at
p. 633.) This finding is prospective in nature. The court must
determine “how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an
adoptive home without the parent in the child’s life.” (Ibid.)
No abuse of discretion occurred. N.C. had lived with the
prospective adoptive family her entire life. Father visited her
regularly but she had recently begun screaming, crying, and
becoming “noticeably more irritated [and] harder to soothe”
during these visits. Testifying that he loved N.C. and enjoyed
their time together did not show how terminating his parental
rights would cause her detriment or would outweigh the benefits
of adoption. (In re Katherine J. (2022) 75 Cal.App.5th 303, 321-
322 [father’s unresolved substance abuse issues “diminished any
benefits she derived from a continuing relationship with him,
aside from the incidental benefit necessarily conferred by a
parent’s fun, playful interactions with his child”].)
6
Because we conclude the juvenile court did not err in
finding the beneficial parental relationship exception did not
apply, there was no error in terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Tari L. Cody, Judge
Manuel J. Covarrubias, Judge
Superior Court County of Ventura
______________________________
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.