In re V.C. CA2/2 ( 2023 )

Filed 12/4/23 In re V.C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re V.C., a Person Coming B327756
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20CCJP05888A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, M.C. (father) appeals
the juvenile court’s order terminating his parental rights to his
nine-year-old son, V.C. (son). Father argues the juvenile court
erred when it refused to apply the beneficial parental
relationship exception to termination of parental rights. Father
claims, rather than terminating his parental rights and ordering
adoption as son’s permanent plan, the court should have applied
the exception and ordered a legal guardianship instead. As
discussed below, we find no error and affirm.
BACKGROUND
1. The Family
Son is the only child of both mother and father. Mother
and father are not married and are not in a relationship. They
each have an extensive history of substance abuse. Father also
has anger issues, and mother suffers from mental health issues.
Previously, father’s parents (son’s paternal grandparents) had a
restraining order against father because, more than once, he
tried to break into their home. At the start of the underlying
proceedings, father was on probation for trying to break into
paternal grandparents’ home.
Although prior to the start of these proceedings, son
primarily lived with mother, mother was in the habit of dropping
son off at paternal grandparents’ home for one week to months at
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a time. Son never lived with father, who had played a very
limited role in son’s life. Since June or July 2020, son had been
staying with his paternal grandparents. Mother, father, and
father’s sister believed it was best that son be placed in the care
of paternal grandparents, who wanted to provide permanency for
son.
2. Petition
In October 2020, mother abandoned son (who was seven
years old at the time) at a fast-food restaurant. Concerned
restaurant employees called the police. Son was removed and
detained from his parents and placed with his paternal
grandparents, where he remained for the duration of these
proceedings.
In November 2020, after an initial investigation, the Los
Angeles County Department of Children and Family Services
(Department) filed a Welfare and Institutions Code section 300
petition on behalf of son (petition).1 The petition alleged mother
and father abused drugs, mother had mental and emotional
problems, father failed to protect son, and mother endangered
son by driving with him while under the influence of alcohol and
by leaving him unattended at a fast-food restaurant.
In February 2021, the juvenile court sustained the petition
in part. The court sustained the allegations relating to mother’s
conduct and father’s failure to protect son. The court dismissed
the count alleging father’s drug abuse. The court declared son a
dependent of the court under subdivision (b) of section 300. The
court removed son from mother’s and father’s custody and care,
ordered family reunification services for both parents, and
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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granted monitored visits for the parents. The court ordered
father, among other things, to enroll in a parenting class and
individual counseling, attend alcoholics anonymous meetings,
and submit to random drug testing. If father tested positive for
any drugs, he would have to enroll in a substance abuse program.
3. Reunification Period
a. Son
The Department consistently reported son was thriving in
the care of his paternal grandparents, with whom he shared a
strong bond. Paternal grandparents met all of son’s needs and
provided him with “ongoing emotional support and stability.”
While in paternal grandparents’ care, son made great strides
both emotionally and academically. Son stated he “loves living
with his grandparents and wants to live with them forever.” He
wanted to be adopted by them. In February 2021, son handwrote
a letter to the court stating, “I like living here with my grandma
and papa. I want to live here. I do not want to live somewhere
else.” Son consistently stated “he only feels safe with his
grandparents” and “he does not feel safe being alone with either
parent.” He did not want overnight or unmonitored visits with
his parents. At times, son talked about being abandoned and it
was reported he had “trust issues.” Father’s temper worried son.
Similarly, during counseling sessions, son was reluctant to
talk about his parents and indicated he did not want to reunify
with them, but instead wanted to stay with paternal
grandparents. In late 2021, son’s therapist wrote, “[Son] would
like to inform the court and [the Department social worker] that
he wants the custody arrangement to remain unchanged. He has
stated that he wants to live with his paternal grandparents.
Currently, he is comfortable and secure in his environment. It is
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evident by his adjustment with his school performance, his broad
social network, no longer have exhibits [sic] slept disturbance,
improved appetite, and open to address his feelings. He can
articulate clearly who he wants to live with but [is] reticent to
acknowledge feelings of hurt or sadness. . . . I would like to
stress that this minor has been truly clear with wanting to
continue to live with his paternal grandparents.” Again in
April 2022, son’s therapist reported son’s “major worry is whether
he will be taken away from his grandparents which he views as
his safety net. . . . [Son] has consistently reported his feelings of
not wanting to be alone with either parent or live with either
parent, and [that] has not wavered or changed.” Son’s therapist
said, son “has made it very clear that when he says he wants to
live with his grandparents, he means it.” Son’s therapist noted
father’s temper worried son, who feared father “is not able to
maintain his composure.” She said son “does not feel safe with
father because of his father’s temperament.” Son’s therapist
stated it would “ ‘not be beneficial to [son]’s mental health to be
unsupervised with either parent, especially father’ ” and she felt
strongly that son was “ ‘flourishing and thriving because he is
staying with his grandparents,’ ” who have always been in his life
“and they have been his safety net.”
By May 2022, after working with son for 19 months, his
therapist reiterated son did not want to reunify with his parents.
He wanted to stay with his paternal grandparents, with whom he
had spent much of his life. In fact, at that time, son’s therapist
advised against conjoint counseling, stating “to incorporate
conjoint counseling with the parents will create a decomposition
and regression within the child.” One month later, son’s
therapist noted son “consistently regresses with his sleep and
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exhibits anxious attachment before a court date.” The therapist
believed son would “develop secure attachments and meet his
developmental growth within normal limits if he remains
permanently with his paternal grandparents.”
b. Father
By May 2021, father had been attending parenting classes
and alcoholics anonymous meetings and had attended an intake
for individual counseling. Father had submitted to five random
drug tests, all of which were negative. Father acknowledged
learning important coping, communication, and parenting skills
through his court-ordered programs. He intended to focus on
son’s “wellbeing, keeping [him] safe, and will be the best role
model for [him].” A social worker involved with father’s
parenting program described father as “ ‘one of the better parents
we have had in a long time. He rarely misses a class. His level of
self-awareness is far beyond other fathers. He is very
transparent and open about his case, family, [son], and siblings.’ ”
Father continued to do well in his programs and to test negative
(albeit with two missed tests) through August 2022.
Father wanted to reunify with son, but by early 2022,
father admitted son would not like living in father’s shared studio
apartment with no kitchen. Although father planned to work 60
to 80 hours a week, he did not have a childcare plan for son.
Father stated he would “ ‘figure it out.’ ” Paternal grandmother
believed father had improved his parenting skills over time, but
by March 2022, she did not believe father was ready to care for
son fulltime or meet his emotional needs. In May 2022, father
felt he was building a strong bond with son. Father loved visiting
with son and was “really trying to do the right things.” In
September 2022, however, the Department reported father
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wanted the case to end and planned “to eventually seek full
custody of [son] when father feels he is able to care for the child
independently (without the assistance of [paternal
grandmother]).”
In April and July 2022 reports for the court, the
Department stated father was compliant with, doing well in, and
“fully engaged with” his court-ordered programs and services.
Nonetheless, the Department reported father had been unable “to
ensure safety and trust with [son]” or “to alleviate the
apprehension [son] has to be alone with father.” The Department
noted, “Father also acknowledges that [son] does not feel safe
with father, but he has no plan to promote safety if [son] were
returned to his care, nor had he articulated a plan of basic care if
he were to reunify with [son].” The Department reported father
had “demonstrated changes in his life such as sobriety, maturity,
employment, and has a car of his own for the first time in 7
years.” Father stated he did not like that son did not want to
reunify with father, but father understood and did not blame son
for his choice. If he failed to reunify with son, father supported a
legal guardianship for son with paternal grandparents.
c. Visits
Visits between son and father were consistent and
generally went well. Visits were always monitored. As of May
2021, it was reported father called son every day and visited with
him every week. Son began to call father “dad,” whereas before
son referred to father by his first name.
During a December 2021 visit, father and paternal
grandmother argued over father’s previous life choices. Father
stated he would be getting physical custody of son and could pick
son up from paternal grandparents’ home whenever he wanted.
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Paternal grandmother described father’s temper as “explosive.”
The episode made son cry and caused him increased anxiety. Son
told paternal grandmother he did not want to live with father.
Father expressed remorse for the incident. He brought it up in
his parenting class to seek guidance. Later, during an April 2022
visit, father again became upset with paternal grandmother and
repeatedly cursed at her. Father wanted to speak with son
privately, but paternal grandmother would not allow it and ended
the visit. After that visit, son was afraid father would speak to
him the same way.
Although son generally enjoyed visits with father, son did
not want to live with or reunify with him. Son also stated he did
not want overnight or unmonitored visits with father. A
Department social worker described father’s relationship with
son as “more of a big brother little brother relationship instead of
father and son.” In January 2023, it was reported son “still
thinks of father . . . more as a big brother as opposed to a father
figure.”
4. Termination of Parental Rights
By April 2022, the Department recommended terminating
parents’ reunification services. Son’s therapist strongly
supported termination of reunification in order for son to receive
permanency. In September 2022, the juvenile court terminated
parents’ reunification services and set the matter for a
permanency planning hearing.
The Department believed adoption by paternal
grandparents was in son’s best interest and recommended that as
son’s permanent plan. Paternal grandparents wanted to adopt
son and son wanted to be adopted by them. After the juvenile
court terminated reunification services for parents, son’s
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therapist reported son was “doing exceptionally well” and
“presented as relaxed, open and happy in sessions.” The
therapist explained son “feels that he doesn’t have to ‘worry
about his safety’ as he knows that if he is adopted by [paternal
grandparents] he will always feel loved and be safe.”
On February 28, 2023, more than two years after the
underlying proceedings began, the juvenile court held the
permanency planning hearing. At the hearing, father testified
regarding his relationship with son, how it began and developed
over the course of the underlying dependency case. Father
explained he spoke by phone with son every night for
approximately 30 minutes and visited in person once a week for
approximately three to four hours. Father testified he works on
his bond with son by “show[ing] up. I make the phone calls
consistent. I just show him that I’m not going anywhere.” Father
stated his visits, both telephonic and in-person, were monitored.
Counsel for father asked the court not to terminate
parental rights, arguing the beneficial parental relationship
exception applied. Counsel stated father “has been able to build
a relationship from scratch, maintain a constant visitation
schedule and relationship, and has learned to continue to make
that relationship stronger.” Counsel for father argued the court
should maintain father’s parental rights and order a legal
guardianship for son with paternal grandparents. In contrast,
both counsel for son and the Department argued no exception to
the termination of parental rights existed and the court should
terminate parental rights and order adoption as son’s permanent
plan. Counsel for the Department noted son has “always been
consistent [with] what he wants.” “He wants stability. He wants
security. He wants to stay with his grandparents.”
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After hearing father’s testimony and argument from
counsel, the juvenile court held the beneficial parental
relationship exception to the termination of parental rights did
not apply. In making its ruling, the juvenile court found,
assuming father maintained regular visitation, “there was no
bond.” Moreover, the court held, “even if there were a bond, it’s
clear from the child’s statements alone, . . . that the relationship
with his parents do [sic] not outweigh the benefit of this child
having a new home.” The juvenile court terminated parental
rights and ordered adoption by paternal grandparents as son’s
permanent plan.
Father appealed.
DISCUSSION
1. Applicable Law
At the permanency planning hearing, the juvenile court
may terminate parental rights only upon finding the child is
likely to be adopted and no statutory exception to adoption
applies. (§ 366.26, subds. (b) & (c)(1).) Here, it is undisputed son
was likely to be adopted. Thus, our focus is whether a statutory
exception to adoption and the termination of parental rights
applies.
The exception father raises is the beneficial parental
relationship exception. This exception is set forth in section
366.26, subdivision (c)(1)(B)(i), which provides: “[T]he court shall
terminate parental rights unless . . . [¶] . . . [¶] (B) The court
finds a compelling reason for determining that termination would
be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.”
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To establish this exception, the parent must prove the
following three elements: “(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.” (In re Caden C. (2021) 11 Cal.5th 614,
631 (Caden C.).) “[I]n assessing whether termination would be
detrimental, the trial court must decide whether the harm from
severing the child’s relationship with the parent outweighs the
benefit to the child of placement in a new adoptive home.
[Citation.] By making this decision, the trial court determines
whether terminating parental rights serves the child’s best
interests.” (Id. at p. 632.) “ ‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[ ]’ the child, the
court should not terminate parental rights.” (Id. at p. 633.) The
“ ‘statutory exceptions merely permit the court, in exceptional
circumstances [citation], to choose an option other than the norm,
which remains adoption.’ ” (Id. at p. 631.)
2. Standard of Review
When reviewing an order terminating parental rights and
rejecting application of the beneficial parental relationship
exception, we apply a hybrid standard of review. On the one
hand, “[a] substantial evidence standard of review applies to the
first two elements [of the exception]. The determination that the
parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the
court’s orders’ [citation] is essentially a factual determination.
It’s likewise essentially a factual determination whether the
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relationship is such that the child would benefit from continuing
it.” (Caden C., supra, 11 Cal.5th at pp. 639–640.)
On the other hand, the juvenile court’s determination on
the third element is reviewed for an abuse of discretion. As to the
third element, the juvenile court “makes the assessment by
weighing the harm of losing the [parent-child] relationship
against the benefits of placement in a new, adoptive home. And
so, the ultimate decision—whether termination of parental rights
would be detrimental to the child due to the child’s relationship
with his parent—is discretionary and properly reviewed for abuse
of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.)
“In reviewing factual determinations for substantial
evidence, a reviewing court should ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary
conflicts.’ [Citation.] The determinations should ‘be upheld if
. . . supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.’ ”
(Caden C., supra, 11 Cal.5th at p. 640.) “Review for abuse of
discretion is subtly different, focused not primarily on the
evidence but the application of a legal standard. 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.’ ” ’ [Citation.] But ‘ “ ‘[w]hen two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ ” ’ ” (Id. at p. 641.)
“At its core,” this hybrid standard of review “embodies the
principle that ‘[t]he statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
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the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions.’ ” (Caden C., supra, 11
Cal.5th at p. 641.)
3. No Error
Father argues the juvenile court erred when it determined
the beneficial parental relationship exception did not apply.
Father claims he satisfied all three elements of the beneficial
parental relationship exception. We assume father satisfied both
the first element (regular visitation and contact with son) and the
second element (a bond or relationship with son, the continuation
of which would benefit son). We conclude, however, the trial
court did not abuse its discretion in determining father failed to
establish the third element.
As noted above, the third element requires the juvenile
court to “decide whether it would be harmful to the child to sever
the [parental] relationship and choose adoption.” (Caden C.,
supra, 11 Cal.5th at p. 633.) 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.) Although the loss
of a parental relationship, including the one in this case, may
certainly cause detriment to the child, the question for the
juvenile court is whether the countervailing positives the child
gains in a permanent, stable home outweigh any such detriment.
(Ibid.) “When the relationship with a parent is so important to
the child that the security and stability of a new home wouldn’t
outweigh its loss, termination would be ‘detrimental to the child
due to’ the child’s beneficial relationship with a parent.” (Id. at
pp. 633–634.)
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Here, the record is clear adoption with paternal
grandparents outweighed any detriment caused to son by losing
his relationship with father. It is undisputed son loved living
with paternal grandparents and wanted to be adopted by them.
Son was thriving with his grandparents. It is also beyond
dispute that, although son enjoyed visits with father, son
consistently and clearly indicated he did not want to reunify with
father or even spend time with him unless someone else was
there to monitor the visit. Son repeatedly expressed concern over
father’s temper and worried he might be the object of it one day.
Son feared being abandoned and had trust issues. Despite
father’s best and laudable efforts, son did not feel safe being
alone with father. Son’s longstanding therapist opined son
craved and required security and stability. The therapist
believed son’s developmental growth would be on track if he
stayed permanently with his paternal grandparents. On this
record, the juvenile court did not abuse its discretion in
concluding the benefits of adoption by paternal grandparents
outweighed any detriment son might experience from the
termination of his relationship with father.
We are not persuaded by father’s arguments addressing the
age and fitness of paternal grandparents or the fact that family
members are the adoptive parents. These points are speculative
and not supported by legal citation. Finally, because we affirm
the juvenile court’s decision, we do not address father’s request
for a bonding study on remand.
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DISPOSITION
The juvenile court’s February 28, 2023 order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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