In re B.M. CA2/8 ( 2024 )

Filed 2/29/24 In re B.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re B.M. et al., Persons Coming B330655
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP02417A, B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra Archuleta, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
J.M. (Father) challenges the juvenile court’s order
terminating his parental rights to his son B.M. and daughter
C.M. pursuant to Welfare and Institutions Code section 366.26.1
He contends the juvenile court erred when it found he had not
established the beneficial parent-child relationship exception to
termination of parental rights. Mother is not a party to the
appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
B.M. was born in 2008 and C.M. was born in 2011. The
family came to the attention of the Los Angeles Department of
Children and Family Services (Department) on February 26,
2020 when it was reported that the previous day, Mother
admitted that she and Father used methamphetamine in the
home with the children present. Mother disclosed she was
experiencing delusional thinking and paranoia and had been
using “on and off” for about a year. On April 30, 2020, the
Department filed a petition alleging parents’ history of engaging
in violent altercations with each other endangered the physical
health and safety of the children, placing them at risk of serious
physical harm, damage, and danger. The petition also alleged
both parents are current abusers of methamphetamine and have
histories of substance abuse, which render them incapable of
providing the children with regular care and supervision. Each
parent failed to protect the children by allowing the other to
reside in the home and have unlimited access to the children.
Finally the petition alleged the abuse of one child endangered the
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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physical health and safety of the other. The minors’ older half-
sister E.M. (born 2003) had a companion case pending with
similar allegations.
On May 5, 2020, the juvenile court held a detention
hearing. Both parents were present with counsel and denied the
allegations. The court detained the children from both parents
and allowed monitored separate visitation by each parent for at
least one hour per week. The court also issued a temporary
restraining order protecting Mother from Father.
The Department prepared a Jurisdiction/Disposition Report
filed July 9, 2020. Both children were placed with an adult half-
sister C.T. and mother’s ex-husband. Both children, their half-
sibling E.M., and Mother confirmed incidents of domestic violence
between the parents in the home while Father confirmed heated
conversations only and denied violent altercations. Mother
admitted substance abuse with Father on April 20, 2020, the day
of the domestic violence incident reported to the Department.
Father admitted to past substance abuse only. The children’s
caregiver reported Father had daily video contact with the
children and no issues had arisen.
At the adjudication and disposition hearing on July 23,
2020, Father submitted a letter dated July 3, 2020 confirming his
enrollment in psychotherapeutic treatment as of May 6, 2020 and
completion of 16 sessions of treatment twice weekly. Mother
entered a no contest plea to the petition which the court
sustained as to her. The juvenile court also sustained the
petition as to Father based on the Jurisdiction Report admitted
into evidence. The court sustained the domestic violence count
based on the statements of the children and Mother. The court
sustained the count alleging abuse of both alcohol and
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methamphetamine, again based on the statements of the children
whom the court found credible. The court also found Father
failed to protect the children from Mother’s substance abuse. The
children were declared dependents of the court and removed from
both parents, who were granted reunification services and
separate monitored visitation with a minimum of 2 visits per
week 3 hours per visit.
Before the six-month status review hearing on January 11,
2021, the Department reported that Father remained in partial
compliance with his court-ordered services in that he tested
positive for alcohol once, had one no-show, and otherwise tested
negative 19 times between July 13, 2020 and Dec 9, 2020. He
was enrolled in substance abuse treatment where he was
progressing well with no missed sessions. He was not yet
enrolled in a 12-step program or a batterers intervention
program, although he had been enrolled in individual counseling
since May 6, 2020 and had participated in 29 sessions of
psychotherapeutic treatment.
Father was consistent with his thrice weekly telephonic
(due to COVID) visits with the children with no concerns. Both
children stated they wanted to reside with Father. Father stated
he wanted to reunify with his children and expressed his
willingness to cooperate with the Department and the court.
At the six-month status review hearing on January 11,
2021, the juvenile court continued all orders in full force and
effect.
As of April 14, 2021, Father continued to test negative and
was enrolled in 12-step meetings and domestic violence sessions.
He had participated in a total of 54 sessions of psychotherapeutic
counseling treatment. He was consistently visiting the children
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virtually (by telephone) thrice a week with no concerns. The
court continued all orders in full force and effect.
For the next hearing date of May 26, 2021, the Department
reported that Father remained consistent with his virtual visits
with the children and there were no concerns about telephonic
communication between Father and the children. On May 26,
2021, the court permitted short unmonitored day visits with
Father which were to stop if Father tested positive for drugs or
alcohol. On May 27, 2021, the juvenile court vacated the order
permitting unmonitored visitation based on “no show” results of
Father’s two most recent drug/alcohol tests on May 11, 2021 and
May 18, 2021.
For the 12-month review, the Department reported that
Father had four “no shows” and 19 negative results for testing
between January 5, 2021 and June 23, 2021. Father provided
reasons for three of the “no shows” and was advised that
regardless of the reason, a “no show” is deemed a positive test.
(Father had taken one child to get a COVID vaccination; missed
another due to his own medical health concerns, and missed a
third because he arrived too late to test but was able to test later
at another site.) Reports from his counseling and treatment
programs were positive except for his inconsistent attendance at
his 12-step program. Father continued to visit the children
virtually and as of June 10, 2021, he had been visiting the
children with a monitor in person once a week. B.M. wanted to
reside with Father and C.M. wanted to reside permanently with
her adult older half-sister and current caregiver. Father stated
he would do whatever it took to reunify with his children.
On September 1, 2021, the juvenile court found that
Father’s progress toward alleviating or mitigating the causes
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necessitating placement was substantial and continued
reunification services for Father.
In its report for the January 12, 2022 status review, the
Department reported that Father was visiting in person with the
children since June 10, 2021. Father began having unmonitored
visits with children starting September 30, 2021. He was
observed drinking “beer” on two occasions during his
unmonitored visits with the children. The most recent occasion
was on November 4, 2021, E.M.’s 18th birthday celebration. The
children told Father he should not be drinking. On November 23,
2021, Father’s visits reverted back to monitored. The
Department recommended termination of services for Father.
The January 12, 2022, status review was continued as
Father contested the Department’s recommendation.
Despite Father’s participation in four separate programs,
the Department continued to recommend that reunification
services to him be terminated, as the children now stated they
did not want to return to Father’s care because seeing their
father drinking against court orders “made them feel
uncomfortable and brought back memories of the trauma they
suffered while in father’s care due to the use of alcohol.”
In a status report dated May 26, 2022, the Department
reported that the children had moved to Sacramento on
December 26, 2021 and Father and the minors maintained
weekly communication via telephone. Father saw them in person
on April 10, 2022. The children stated they wanted to be adopted
by their caregiver, adult half-sister J.E. and her husband.
By now two years had passed since proceedings
commenced. The Department recommended that family
reunification services be terminated for Father: “Though the
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Department recognizes father’s efforts in complying with
services, DCFS is not making the recommendation to return the
children to the father. At this time, DCFS is respectfully
recommending that Family Reunification be terminated. Father
has received well over 18-months of Family Reunification
Services; however, the issues that brought the family before the
Court have not been mitigated. The Department is concerned,
given that father has relapsed twice and clearly has not refrained
from alcohol use, though he knows that reunification with his
children would be affected by his actions. Further, the lack of
housing and financial security presents a risk for the children.
Father has never been forthcoming with the Department and/or
showed his plan for housing if the children were to return to his
care. At this time, the father’s ability in providing a grounded,
stable, and protective home environment for the minors . . .
remains in question and returning the minors to their father’s
care can potentially place them at risk of further abuse and
neglect. DCFS is respectfully recommending that [Family
Reunification] Services be terminated for father and minors.”
In a update to the court signed July 25, 2022, the
Department again recommended that services to Father be
terminated. It cited Father’s failure to obtain a 12-Step sponsor
to “sustain his on-going sobriety” and the fact that he did not
“have adequate housing in place to provide the minors with a
safe, nurturing and stable home environment. . . . The father’s
lack of housing and financial instability continues to be a
potential stressor, which can cause a detrimental situation for
father in caring for the minors. At this time, the father’s ability
in providing a stable and protective home environment for the
minors . . . remains in question and returning the minors to their
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father’s care can potentially place them at risk of further abuse
and neglect.”
On August 23, 2022, Father withdrew his contest of the
Department’s recommendations. The court permitted Father to
have unmonitored visits with the children in a public setting as
long as he did not drive with the children in his vehicle and
continued to test for drugs and alcohol. Unmonitored visitation
was to revert automatically to monitored if any tests were
unexcused, missed or positive. Although visitation restrictions
were relaxed, the court found Father’s progress “unsubstantial,”
terminated reunification services for him, and set a permanency
planning hearing.
In December 2022, the court considered the Department’s
report for the permanency planning hearing. The report noted
that since the children’s relocation to Northern California on
December 26, 2021, Father and the children maintained
communication via weekly telephone calls. However, father had
not seen the children since July 2022 and “the father has not
consistently made the effort to have in person visits once the
children relocated to Northern California.” C.M. shared that
“ ‘she is enjoying therapy sessions with father and how it has
helped their relationship when it comes to communicating and
him understanding her better.’ ” B.M. “ ‘confirmed that he
speaks more frequently with father as he might typically call
every week.’ ”
The Department noted the proposed adoptive parents were
the current caregivers, the minors’ adult half-sister J.E. and her
husband. “It is assessed that the parents have not maintained
consistent and regular family time with the children. Although
the visits are, for the most part positive, the parents’ contact with
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the children remains primarily through phone and video chats.
The children, [ages 14 and 11], have been out of the care and
supervision of the parents for over two years and the parents
have not yet mitigated the case concerns. . . . The father’s visits
were reverted back to monitored when it was found that the
father was drinking alcohol during the visits with the children.
[¶] The children are placed in an adoptive home that has
provided the children stability which is evidenced by the
children’s academic achievements and mental and emotional
stability. Severing the relationship would not have a negative
impact on the children, as the prospective adoptive parents are
related to the children and the children will continue to have
contact with their biological family.”
On December 21, 2022, the juvenile court ordered
unmonitored virtual visits for Father and removed Father’s
testing requirement to facilitate in-person visiting.
In February 2023, almost three years into the proceedings,
the Department submitted another status review report, noting
that Father had started conjoint therapy with B.M. “[They] have
identified goals of understanding how things got out of hand for
[Father]. [Father] and his son have been doing well in sessions
and are developing a more healthy relationship. [Father’s] son
has been able to ask some important questions regarding issues
he was concerned about. [Father] continues to be very receptive
to these family sessions and is committed to make the necessary
changes to help with his family.”
As to conjoint counseling with C.M., the Department
reported “[Father] and his daughter have been able to discuss
these goals of problem solving and effective communication.
[Father] and his daughter continue to be open and honest during
9
their family sessions. [Father] and his daughter use each session
to help each other learn about how to problem solve and use more
effective communication skills to increase their relationship.
[Father] continues to be very receptive to these family sessions
and is committed to make the necessary changes to help with his
family.”
As to visitation, the Department repeated verbatim its
earlier report that “father’s contact with the children remains
primarily through phone and video chats.”
Both children continued to favor adoption by their adult
half-sister J.E. She, in turn, expressed an interest in adopting
them.
Yet another interim review report dated April 25, 2023
reported that “the father was consistently video calling the
children three times a week but recently the children changed the
schedule to two times a week. [The caregiver] stated the children
are typical teens and at time do not want to talk to the father
because they are busy with teen stuff and with their friends.” “At
this time, it appears that the father continues not making active
efforts in having in person visits with the children since they
relocated to Northern California; the father has had four visits
with the children and three of the visits, the caregiver/adult
sibling took the children to the father’s location. It continues to
be reported that the father appears to be making efforts in
continuing video call contact with the children. [¶] It continues to
be assessed that the parents have not maintained consistent and
regular family time with the children. Although the visits are,
for the most part positive, the parent’s contact with the children
remains primarily through phone and video chats. The children
have been out of the care and supervision of the parents for over
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two years and the parents have yet to mitigate the case concerns.
At this time, the Department has no change in recommendation.”
In a last minute information report for the court dated
April 28, 2023, the Department advised the court that B.M.
stated he “ ‘would probably be sad if I can’t see my dad.’ ” He
went on, “ ‘If I were not allowed to have contact with my father,
yes, I would still go through with being adopted. I know my
sister wants to be adopted and stay here (current home) and I
want to be with my sister. I would go through with being
adopted even if I am not allowed to have contact with my father.
I feel safer living here. I would stay here (current placement).’ ”
Similarly, when asked if she would be upset if she were not
allowed to have contact with her father, C.M. stated “ ‘I meant
that I would be like confused on why [the current caregiver]
would not let me talk and visit with my dad. I would be upset
because he is still my dad and I want to have him in my life.’ ”
C.M. stated that if contact with her father were not allowed, she
would not want to be adopted. “ ‘No, because I feel weird without
my father and if I am not allowed to see my father, I would not
want to be adopted.’ ”
At the permanency planning hearing one week later on
May 2, 2023, the court heard testimony from C.M. who now told
the court she wanted “to be adopted by my sister [J.E.] and my
brother-in-law [C.E.].” She stated that she loved living with
them because they have “been able to provide me with a life I
have wanted. Always being able to have dinner at a dinner table
with family. Not having to worry about, you know, moving to a
hotel or moving to another house. They have been able to provide
me with a happy and healthy house environment.” She testified
that if contact with her parents were cut off by an adoption, “I
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would be upset, but I know that adoption is probably the best
plan for me and my brother because I feel safe here. I feel happy
here. [¶] . . . [¶] I’m in agreement by being adopted.”
On cross-examination, 12-year old C.M. stated she still
wanted her parents in her life because “[t]hey should be there. I
feel that I trust [J.E. and C.E.], that they will make the right
decisions and they know what is best for us. They have done that
for the past two years, now. So I would be confused, but I
understand why.” C.M. testified that she wanted to proceed with
being adopted even if it meant she would never see her parents
again. She acknowledged that she loves her father and feels that
he is a positive influence on her. “He’s helped me see what
happens when you make bad decisions in your life and the
consequences that come. So I feel it’s helped me understand life
a little bit more.” C.M. stated that she had a healthier bond with
him due to counseling.
Father also testified at the hearing. He stated his children
were “everything to me. They’re my life.” He stated his children
“love me with everything they are” and he is bonded with them.
Father acknowledged “Kids have already lost so much. They
have endured pain, disappointment. They lived with uncertainty.
If I was removed from their life, I believe they would be gutted.”
He stated he would be gutted as well. He thought the counseling
had improved his relationship with the children because “[w]e
were able to bring healing into our relationship.”
Finally, B.M. testified. He stated, “I would like to tell the
judge I feel very safe living here with [J.E. and C.E.]. I would
like to be adopted for I feel the future, down the road, I have is
nothing but perfect with them. I would like to stick with them.”
B.M. stated he understood that his adoptive parents could cut off
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contact between him and Father and, knowing that, he still
wanted to pursue the proposed adoption, notwithstanding his
deeper and growing bond with Father. He also stated he
preferred adoption to legal guardianship because “Adoption, to
me, is [J.E. and C.E.] would become our parents, and our mother
and father would no longer have ownership over us.”
The juvenile court commented on the testimony. “It
appears to the court that these children do have a bond with their
father. They are very comfortable and happy in their current
living situation. They feel loved, nurtured, and cared for, and
part of [J.E. and C.E.’s] family, but at the same time, they got a
bond, not only with each other, but they do have a bond with
their father. I’m frankly concerned that depending on what
happens, today, that I do not want these children to be precluded
from having contact with their father because there is some
family disagreement that blows up or say the father, you know,
says or does something that somebody does not like. So I have
some real concerns all the way around. So I’m putting this out
there for everybody, now, because I want, when you argue to me,
whether this is today or a different day, these are the concerns
that the court needs addressed by counsel in argument. This is
not a clear cut case for this court to terminate father’s parental
rights. I’m just going to tell you that right now. It’s not. I know
what the kids want or they think they want. I do not see clarity
between what the testimony was, today, and what the report was
by the social worker for today’s proceedings. And I do not
envision these young people having to sit here, in my court, even
though it’s virtually, knowing that their mom and dad are
watching them, their caregiver is sitting with them, the judge is
watching them, and all of these lawyers and being put in this
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position. I do not envy these young people having to be sitting
here today and . . . frankly it pains the court that we have to have
these fine young people sitting in court, making these
statements. It’s not easy for them. It is not easy for you to listen
to this, and frankly it’s not easy for the court. . . . But I am
expressing, as candidly and openly as possible, the concerns that
the court has because I do not have a couple of questions
answered that the court thinks I need to have answered because I
were to—would consider terminating parental rights today. So if
there is some agreement that could be made if adoption is to go
forward, that there is a way for father to have—maintain contact
and a relationship with the children, that may be something that
could be agreed upon. If it goes by way of legal guardianship, I
do not want these children precluded from having contact and a
relationship with their father because they have been through
trauma, but that is not to say if that relationship was completely
severed from them, they would not have more additional or new
trauma, and the court is trying to minimize the trauma to the
children, although I do care about the parents, I am guided by
what is in the best interest of the children, and frankly I think
there has been some vacillation.” The court ordered the parties
to meet and confer at a child and parent team (CFT) meeting and
continued the matter for the results of their conference.
In a last minute report to the court dated five weeks later,
the Department reported that both children now separately
stated “with no hesitation” that each wanted to be adopted by
their adult half-sister. Another final last minute report to the
court dated two weeks later advised the court that the proposed
adoptive parents remained committed to and were excited about
the plan of adoption.
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On July 7, 2023, the juvenile court held a final hearing.
Father asked the court to apply the beneficial parental bond
exception to termination of parental rights. The court made
extensive findings: “The court has read and considered all of the
evidence including the exhibits that were amended and admitted
into evidence today. I’ve heard the testimony of father. I know
mother’s position, and the very eloquent testimony of both
[children]. As I stated previously to the parents, I know there’s
been issues and challenges and obstacles in your lives but you
have exceptional children. These children have been through a
lot. This case has been going on since April the 30th, 2020, and
whatever flaws and failings we all have as humans and as
parents, I want to commend both mother and father that you
have raised exceptional children for which you need to be very
proud. I’m proud of your children. They’re not my children, but
they are eloquent, intelligent, caring children. . . . The court does
find that continued jurisdiction is necessary because the
conditions continue to exist which justified the court taking
jurisdiction pursuant to Welfare and Institutions Code section
300. I do find by clear and convincing evidence that each of the
children are both generally and specifically adoptable and that
there are no legal impediments to their adoption by [J.E. and
C.E.]. In reviewing the Caden C. factors for this matter—Caden
C. being 11 Cal.5th, 614, 2021—and many of the cases that have
followed since then including the Autumn H. case, I will discuss
each of the factors. Factor No. l, prong one, is regular visitation
and contact. There is contact between the children and father
and that is of the nature of texting and calling. I know that the
children call their father frequently and also have text
communication which is a good thing. However, there’s not been
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a lot of in-person contact. There was one visit that dad went up
there earlier this year. Last year there were some visits but [the
caregivers] facilitated the visits by bringing the children to
Southern California. The—obviously the geographical distance is
an issue, and I’m not sure as to—I know there was a visit
scheduled between the last court date and this date, and there
was a [meet and confer] that didn’t go well. I know this has to be
painful for father thinking that, you know, how could his children
choose to live elsewhere and maybe they’ve been subject to
influence, manipulation, et cetera. But I don’t believe that
Father, frankly, has extended—made best efforts to try to see the
children. The visitation has been provided by the current
caregivers despite the fact that there’s texting and phone calls. I
know that both [children] speak to their dad. But it was clearly
asked on both direct and cross-examination that they wanted to
be adopted and that they would be sad if they were no longer able
to have communication with their father, but they were willing to
take that chance for the permanency and stability of the life that
[the caregivers] can provide to them. [C.M.] testified that they
have family dinners. They are a family unit. They are happy.
They are safe. They are secure. She recalled in her testimony
how they were when she was with her parents moving from hotel
to hotel. That was very unsettling and provided instability and
upheaval in her young life. And also she didn’t like living with
parents, friends, and family members, and that she’s very happy,
feels very safe, loved, and secure where she is. And also [B.M.]
testified about the feeling of security and love that he has in the
current situation. So with regard to the prong one on Caden C.,
there has not been regular visitation. There has been contact.
Contact between a parent and a child is insufficient under the
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holding of Autum H. Frequent and loving contact is not enough.
And when we talk about the second prong, that the
relationship—the continuation of which would benefit the
children—has to have a substantial and positive emotional
attachment, I don’t believe that that is in fact the case here under
prong two of the Caden C. factors. The kind of attachment that is
shown in this particular situation, both of the children have
testified clearly and consistently that, although they would be
sad if they could no longer have a relationship with their father,
that they wanted to be adopted, they wanted to have this case
put behind them so that they could move forward with their life.
And frequent and loving contact is insufficient to overcome the
second prong of the Caden C. analysis. The third prong is that
the termination of the parental rights would be detrimental to
the child. Each of the children in this case and the court has to
weigh the detriment of a severance of that relationship with the
benefits of the adoption by [current caregivers]. I don’t find that
the bond with the father and his children is so deep and
meaningful and substantial beyond phone calls and texts such
that there would be extreme hardship and/or detriment to the
children if they no longer had contact with him in the future. I do
find that the benefits of the adoption by the current caregivers
who provide a warm, stable, loving home environment where the
children are thriving emotionally and academically and in other
aspects of their life. The benefits of the adoption of these
children who have been with their caregivers for the last three
years and two months outweighs potential detriment to the
children. I took notes about those—their testimony as well, and
both indicated that, although they would be sad if they didn’t
have contact with their father in the future, they want to be
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adopted. They want to feel safe. They want to feel secure, and
they want to be happy, and they both clearly and succinctly
testified along those lines before this court and that’s what the
court is going to do. The court does find that the parental bond
exception claim, although articulately argued by Mr. Steinberg
on behalf of father, because of the Caden C. factors and other
cases that have flown from Caden C., that bond has not been
overcome. There has not been regular visitation. Knowing that
we were getting to this stage of the proceedings, the court feels
that, for whatever reason, the visitation was not maintained.
Although [the current caregivers] helped facilitate that visitation,
it was not maintained by father from the court’s perspective.
There is a bond with the children; however, I don’t think it is a
bond that is sufficient that would be detrimental to the children,
and I do believe the benefits of adoption outweigh the
termination of that bond if it should happen. The court does find
that the benefit accruing from the children with their father is
outweighed by the physical and the emotional benefits that the
children will receive and have received by the permanency and
stability of the adoption and that the adoption is in the best
interest of each of the children. I further find that it would be
detrimental to the children to be returned to the parents. The
court finds that there is no exception to the adoption in this case.”
The court then terminated Father’s parental rights.
Father filed a timely notice of appeal.
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DISCUSSION
The Juvenile Court Did Not Err in Finding Inapplicable
the Beneficial Parental Benefit Exception to Adoption.
I. Applicable Law
At a section 366.26 permanency planning hearing, the
court determines by clear and convincing evidence whether the
child is likely to be adopted. If the court so finds, the court is
statutorily required to terminate parental rights unless there is a
compelling reason to find that termination of parental rights
would be detrimental under one of the six exceptions enumerated
in section 366.26, subdivision (c)(1)(B). (In re Mary G. (2007)
151 Cal.App.4th 184, 206–207). One of the exceptions is the
beneficial parental relationship exception in section 366.26,
subdivision (c)(1)(B)(i), which applies when a parent has
maintained regular visitation and contact, the child would benefit
from continuing the relationship, and terminating the
relationship would be detrimental to the child. (In re Caden C.
(2021) 11 Cal.5th 614, 629 (Caden C.).)
Three elements must be satisfied to establish the beneficial
parental relationship exception: 1) regular visitation and contact,
taking into account the extent of visitation permitted; 2) a
substantial, positive, emotional attachment to the parent—the
kind of attachment implying that the child would benefit from
continuing the relationship; and 3) a showing that terminating
the attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home. (Caden C., supra, 11 Cal.5th at p. 636.) When the parent
has met that burden, the parental-benefit exception applies such
that it would not be in the best interest of the child to terminate
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parental rights. In that case the court must select a permanent
plan other than adoption. (Id. at pp. 636–637.)
The parent has the burden to show the statutory exception
applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) When a
party with the burden of proof does not carry that burden, “the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) ‘uncontradicted and unimpeached’
and (2) ‘of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
disapproved on other grounds by Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7.) Whether the trial court correctly
interpreted the law is a legal issue concerning statutory
interpretation and analysis reviewed de novo. (In re R.T. (2017)
3 Cal.5th 622, 627.)
Because the court concluded Father failed to prove the
exception applied, we determine on appeal whether the evidence
compels a finding in his favor as a matter of law. (In re I.W.,
supra, 180 Cal.App.4th at p. 1528.) Father has failed to show
that the evidence, taken as a whole, compels a finding in his
favor.
II. Regular Visitation
The juvenile court’s finding is reviewed for substantial
evidence. (Caden C., supra, 11 Cal.5th at pp. 639–641.)
As to prong-1, regular visitation, Father’s visitation
consistency varied over the four years. During COVID-19
restrictions in the first two years of proceedings, he maintained
consistent telephonic and video chats with the children. After
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COVID-19 restrictions eased and the children moved to Northern
California, he continued to visit the children by telephone, but
made only one in-person visit to their new residence in Roseville.
He visited them in person on other occasions when the caregivers
brought them to Southern California for visitation.
The juvenile court found that Father had failed to maintain
consistent in-person visitation with the children after they
relocated to Northern California. Father told the court that he
had periodic car trouble which hindered travel to Northern
California. As set out above, the juvenile court found that
although Father communicated with the children consistently by
telephone and video, this communication was only “contact” as
opposed to true “visitation.” The court noted that the
geographical distance to Roseville was an obvious issue but still
faulted Father for his lack of effort in arranging in-person visits.
Father contends that the juvenile court misconstrued this
prong in focusing on the type of contact rather than on whether
“regular visits and contact have continued or developed a
significant, positive, emotional attachment from child to parent.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It appears to
us that Father’s contacts and participation in conjoint therapy
with his children did develop a significant, positive, emotional
attachment with the children, as their statements to the court
attested.
Whether Father satisfied the first prong of regular
visitation (and the second prong, for that matter) is not
determinative because we find that Father did not satisfy the
third prong of the analysis, to wit, it would be detrimental to the
children to terminate their relationship with Father in favor of
adoption. (In re I.R. (2014) 226 Cal.App.4th 201, 212 [failure to
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satisfy one prong is sufficient to find the exception inapplicable].)
The record supports the conclusion that no detriment would arise
from termination of parental rights.
Although both children stated they loved their father and
were encouraged by the results of their conjoint therapy with
him, both clearly articulated in court why they preferred
adoption to maintaining their relationship with him. Neither
wanted to risk returning to the days when Father was drinking,
abusing the family, and engaging in domestic violence in their
presence. Both, thus, wanted the security that adoption would
bestow—a guarantee that their parents would not “own” them
anymore. And both expressly testified that they were willing to
give up their relationship with Father in exchange for the
emotional stability of their relationship with their proposed
adoptive parents.
We recognize that although the minors’ feelings about
adoption must be considered, those feelings are not necessarily
determinative as to the third prong. (In re I.E. (2023)
91 Cal.App.5th 683, 694.) Nevertheless, the juvenile court did
not err in giving their feelings great weight. The court was very
mindful of the vacillation the children experienced when
repeatedly asked whether they were willing to sever their
relationship with their father if they were adopted. Given the
clarity, determination, and thoughtfulness each child evinced
while testifying, the court’s reliance on their feelings about
adoption was neither misplaced nor overblown.
Father contends the juvenile court “conflat[ed] the question
of the relationship with the caretakers with the benefit to
continuing the relationship with Father.” We disagree. The
juvenile court thoughtfully parsed the issues and did not engage
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in comparing which adult could provide the better living situation
for the children or which would be the better parental figure. It
did not adopt the Department’s unduly negative assessment of
Father’ unstable employment and housing situation. It did not
improperly discount Father’s relationship because of his
struggles with alcohol. It instead focused on the children’s
perception of the mental and emotional benefits of being a part of
their prospective adoptive parents’ family, their descriptions of
their newfound freedom from anxiety, and the evidence that
supported their own statements that they were now very happy.
They were excelling in school and felt they had friends, a real
family, and emotional support from their adoptive parents. They
did not want to risk return to the mental and emotional
uncertainties of their lives with Father and Mother. In short,
they were appreciative of the benefits that adoption would confer
on them and, as a result, preferred their new status quo. A legal
guardianship was not an option for them precisely because they
wanted the final stability that adoption provides—a stability long
endorsed by our Legislature as adoption is, where possible, the
permanent plan preferred by the legislature. (In re Autumn H.,
supra, 27 Cal.App.4th at p. 573.)
Finally, Father contends that the court improperly found
and considered that return of the children to his custody would be
detrimental to their safety. The court made this statement at the
very end of its very detailed findings and it appears to us to be an
extraneous and irrelevant finding given the lengthy remarks that
preceded it. We conclude there is no likelihood that the court
would have returned the children to Father even without this
finding and so any error is harmless. The juvenile court was
clearly focused on the benefits adoption would bestow on the
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children, not the detriment of returning them to Father’s custody.
(People v. Watson (1956) 46 Cal.2d 818, 836; In re Melinda J.
(1991) 234 Cal.App.3d 1413, 1419 [harmless error analysis
applies to termination of parental rights].)
To be sure, this was a difficult case and when a court is as
transparent as this court was in laying out the pros and cons
posed by the decision it faced, counsel is tempted to pick apart
every judicial word on appeal. Upon our review of the entire
record, we hold that the court’s conclusion that the benefits of
adoption outweigh any detriment in terminating the parental
relationship is well-supported by the evidence.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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