In re I.M.-O. CA4/1 ( 2024 )

Filed 10/22/24 In re I.M.-O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 I.M.-O., a Person Coming
Under the Juvenile Court Law.
D084075
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J521024)
Plaintiff and Respondent,
v.
R.O. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Alexander M. Calero, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant R.O.
Johanna R. Shargel, under appointment by the Court of Appeal, for
Defendant and Appellant D.M.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Indra N. Bennett, Deputy County Counsel, for Plaintiff
and Respondent.
R.O. (Father) appeals the juvenile court’s order terminating his
parental rights to his child, I.M.-O. (Child), under Welfare and Institutions
Code1 section 366.26. His sole contention is the juvenile court should have
applied the beneficial parent-child relationship exception to adoption, under
section 366.26, subdivision (c)(1)(B)(i).2 We disagree and affirm the order
terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2022, the San Diego County Health and Human Services
Agency (Agency) filed a petition under (1) section 300, subdivision (a),
alleging Mother subjected then six-year-old Child to serious physical harm
when she dragged Child, causing Child to fall and hit Child’s head; and
(2) section 300, subdivision (b)(1), alleging Mother suffered from untreated
mental health issues, which resulted in Mother’s inability to consistently
provide for Child’s needs. Father failed to make himself available for Child’s
protection.
The juvenile court sustained the petition, ordered Child removed from
Mother’s care, found that placement with Father would be detrimental to
Child, and ordered reunification services for both parents. The court
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 Child’s mother, D.M. (Mother), also appealed and joined in Father’s
argument.
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authorized an Interstate Compact on the Placement of Children (ICPC) for
maternal cousin in Nevada.
During the reunification period, Mother did not maintain contact with
the Agency and did not engage in services. Father had consistent supervised
visits with Child, which Child enjoyed. He initially engaged in but ultimately
indicated he would not complete his court-ordered services. He also
acknowledged his living situation was inadequate and was in agreement with
Child being placed with maternal cousin, who also had legal guardianship of
Child’s older sibling. Child spent a weekend visiting with maternal cousin,
was excited to move there, and eventually did in July 2023. By all accounts,
Child did well in the placement with maternal cousin, who was committed to
providing Child with permanency.
Father submitted on the Agency’s recommendation to terminate
reunification services and continue placement with maternal cousin, while
Mother’s counsel set the matter for trial. Due to a lack of progress and
participation, the court terminated Father’s and Mother’s reunification
services at the 12-month contested review hearing in October 2023, and
scheduled a section 366.26 hearing.
During the permanent placement planning phase, Father maintained
regular contact with Child via brief phone calls, which Child enjoyed. Father
and Child expressed affection, saying “I love you” to each other, but Child did
not seek additional time, display distress when the calls ended, or ask for
additional calls. Father declined the Agency’s offer to facilitate
transportation for in-person visits despite consistently promising Child that
he would. Their last in-person visit was the day that Child moved to Nevada
to live with maternal cousin. When asked to draw or write the names of
family members who lived outside of that home, Child “stated she did not
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have anyone else to draw” and when asked if Child wanted to draw Mother,
Father, friends, pets, or any other relatives, Child said “ ‘no. I want to draw
something else.’ ” Child had no concerns with being adopted by maternal
cousin.
At the section 366.26 hearing, Father’s counsel argued for the lesser
permanency plan of legal guardianship because Father did not want to lose
his bond with Child. The court found Father maintained consistent visitation
and contact, but found there was no substantial, positive, emotional
attachment from Child to Father such that termination of the relationship
would be so detrimental as to outweigh the benefits of adoption. The court
concluded the beneficial parent-child relationship exception did not apply,
terminated parental rights, and selected adoption as Child’s permanent plan.
DISCUSSION
Father contends the juvenile court erred in declining to apply the
beneficial parent-child relationship exception. We disagree. Substantial
evidence supports the court’s finding that Child did not have a substantial,
positive, emotional attachment to Father, and the court was within its
discretion in declining to apply the exception.
“After reunification services have terminated, the focus of a dependency
proceeding shifts from family preservation to promoting the best interest of
the child including the child’s interest in a ‘placement that is stable,
permanent, and that allows the caretaker to make a full emotional
commitment to the child. [Citation.]’ ” (In re Fernando M. (2006)
138 Cal.App.4th 529, 534.) At a permanency plan hearing, the court may
order one of three alternatives: terminate parental rights and order
adoption, appoint a legal guardian, or place children in long-term foster care.
If the child is adoptable, there is a strong preference for adoption over the
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alternative permanency plans. (In re B.D. (2021) 66 Cal.App.5th 1218, 1224.)
Once the juvenile court finds the child is adoptable, the burden shifts to the
parent to demonstrate that a statutory exception applies. (Id. at p. 1225;
§ 366.26, subd. (c)(1).) If the parent does not establish the applicability of a
statutory exception, the juvenile court must terminate parental rights. (In re
Katherine J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.).)
One exception is when a beneficial parent-child relationship exists.
(§ 366.26, subd. (c)(1)(B)(i).) It applies when “[t]he court finds a compelling
reason for determining that termination would be detrimental to the child”
because “[t]he parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.”
(Ibid.) This exception requires the parent to prove three elements:
“(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.” (In re M.G. (2022) 80 Cal.App.5th 836,
847.)
“We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parental relationship, for substantial evidence.”
(In re B.D., supra, 66 Cal.App.5th at p. 1225, citing In re Caden C. (2021)
11 Cal.5th 614, 639–640 (Caden C.).) We do “ ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary conflicts’ ” and
will not disturb the juvenile court’s findings even where substantial evidence
to the contrary also exists. (Caden C., at p. 640, citations omitted.) “[T]he
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ultimate decision—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with [the] parent—is
discretionary and properly reviewed for abuse of discretion.” (Ibid.) A court
abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ ” (Id. at p. 641.)
Here, the juvenile court found Father satisfied the first element of
regular visitation and contact with Child. The Agency does not challenge this
finding on appeal.
Turning to the second element—the existence of a beneficial parent-
child relationship—the juvenile court must “consider the evidence showing
whether the parent’s actions or inactions ‘continued or developed a
significant, positive, emotional attachment from child to parent.’ ” (In re B.D.,
supra, 66 Cal.App.5th at p. 1230, italics added.) To determine whether the
parent has established this element, courts consider factors including the age
of the child, the amount of time the child spent in the parent’s custody, the
positive or negative effect of interaction between the parent and child, and
the child’s needs. (Caden C., supra, 11 Cal.5th at p. 632.) The court should
also examine “how children feel about, interact with, look to, or talk about
their parents.” (Ibid.)
Father contends the juvenile court relied on “erroneous facts
unsupported by the record” in finding he failed to establish the second
element. He takes issue with the court’s comment that Child “doesn’t ask
about him or doesn’t ask about more interaction with him, and [Child] does
not express a desire to see him outside of those calls.” Father points to the
initial section 366.26 report, which stated Child liked to have phone calls
with Father and would be sad to not see Father again. However, what Child
actually said when asked how Child would feel if Child did not see Father,
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was, “ ‘I don’t know. Probably sad.’ ” The same report also indicated Child
“does not ask about [Father] in between visits” and “will not want to talk to”
Father if Child “is busy doing something at the time.”
Father also points to evidence that Child enjoyed having in-person
visits with Father and would have been comfortable with unsupervised visits
during the 12-month review period. By the time of the section 366.26
hearing, however, they had not had an in-person visit for over nine months—
since Child moved to Nevada—and as the court recognized, Child had spent
the last two years out of parents’ care and was in Mother’s care prior to that.
Finally, Father relies on minor’s counsel’s statement at the section
366.26 hearing that Child wanted to see him, looked forward to seeing him,
and wanted him to visit in person. But minor’s counsel also explained that
Father continuously declined the Agency’s offers to assist with
transportation, although he promised Child he would visit each time they
talked, which is hard for someone of Child’s age. Indeed, the Agency reported
Child did not like to talk to Father as often due to his “making promises of
unsupervised visits during the telephone calls.”
Father and Child had 12 telephone visits during the permanency
planning reporting period, nine of which lasted three minutes or less, and
three lasted seven minutes or less. In his reply, Father criticizes the Agency
for focusing on the length of the calls, contending almost every eight-year-old
would prefer visitation in person over a phone call. While that may be true,
the brevity of the calls is nonetheless indicative of Child’s lack of attachment
to Father.
The court recognized that Child enjoyed calls with Father and that
interaction between a child and parent will always have some incidental
benefit to the child but explained that is not enough. (See In re Dakota H.
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(2005) 132 Cal.App.4th 212, 229 [the parent must demonstrate “more than
incidental benefit to the child” and “more than frequent and loving contact,
an emotional bond with the child, or pleasant visits”].) The court weighed the
evidence in finding that Child did not have a significant, positive, emotional
attachment to Father. Father urges a different interpretation of the record
but it is not our place to reweigh the evidence. (Caden C., supra, 11 Cal.5th
at p. 640, citations omitted.) We must affirm the lower court’s finding if
supported by substantial evidence even though other evidence may support a
different result. (Ibid.)
The third element of the beneficial parent-child relationship exception
requires the juvenile court to determine whether terminating the parental
relationship would be detrimental to the child. (Caden C., supra, 11 Cal.5th
at p. 633.) “[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.” (Id. at p. 632.) This requires the juvenile court to
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.” (Id. at p. 633.) The juvenile
court must then weigh the loss of this relationship with “the benefit of
placement in a new, adoptive home . . . .” (Ibid.)
Father contends the court’s conclusion that severing Child’s
relationship with him would not be detrimental to Child lacked analysis.
Specifically, he claims the court improperly focused on the suitability of the
current placement and did not determine whether termination of his parental
rights would be detrimental to Child. The juvenile court found, however, that
Child did not have a substantial, positive, emotional attachment to Father,
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and we have concluded there is substantial evidence to support this finding.
While this finding addresses the second element, the second and third
elements of the exception “significantly overlap.” (Katherine J., supra,
75 Cal.App.5th at p. 317, fn. 7.) “For example, evidence that terminating the
parental relation would cause harm indicates that the child would lose
important relational benefits if severed from [the] parent.” (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.” (Caden C., supra, 11 Cal.5th at pp. 633–634.) Here, because Child
did not have a substantial, positive, emotional attachment to Father, there
was no such beneficial relationship between them.
Nonetheless, contrary to Father’s claim, the court did not issue a
“conclusory statement” that the benefits of adoption outweighed the harm of
terminating his parental rights. The court again acknowledged that
terminating parental rights would likely have a life-long impact on Child in
different ways at different times throughout life, but on balance when
considering the benefits of adoption, the court concluded terminating the
relationship would not be detrimental to Child—i.e., any harm from
terminating the relationship did not outweigh the benefits of adoption.
(Caden C., supra, 11 Cal.5th at p. 633.) The court was not required to recite
its grounds, reasons, or specific findings regarding any of the three elements
in determining that the parent-child relationship exception did not apply.
(In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) We must affirm the court’s
determination unless it was arbitrary, capricious, or patently absurd.
(Caden C., at p. 641.) We cannot say that it was. Accordingly, the court did
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not abuse its discretion when it declined to apply the beneficial parent-child
relationship exception to adoption and terminated Father’s parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
KELETY, J.
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