Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK 57657, Stanley Genser, Juvenile Court Commissioner.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Mauricio J. Fusco; William D. Caldwell for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Ricardo V. appeals from orders denying his petition for custody or additional reunification services pursuant to Welfare and Institutions Code section 388 and terminating his parental rights to his daughter, Alyssa V. (born in 1999), pursuant to section 366.26. Ricardo contends the dependency court abused its discretion by failing to properly consider evidence of changed circumstances and Alyssa’s best interest when it denied his section 388 petition. He further contends the evidence was insufficient to support the dependency court’s finding that the exception to termination of parental rights under former section 366.26, subdivision (c)(1)(A), does not apply. We disagree and affirm.
All undesignated code section references are to the Welfare and Institutions Code.
The exceptions to termination of parental rights that formerly were under section 366.26, subdivision (c)(1) now appear in subdivision (c)(1)(B) of the same section. Former subdivision (c)(1)(A) is now subdivision (c)(1)(B)(i).
BACKGROUND
On January 6, 2005, DCFS detained Alyssa from Ricardo and Alyssa’s mother, Rachel D., who is not a party to this appeal, after a domestic violence incident on January 2, 2005, in which Ricardo allegedly threw mother against a wall and pointed a real or toy gun at Rachel in Alyssa’s presence. On January 11, 2005, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition alleging that Ricardo and Rachel (parents) had a history of engaging in such conduct. In the accompanying detention report, DCFS noted that Alyssa currently was and long had been living with her paternal great aunt Pat, Pat’s domestic partner Tai, and their two-year-old daughter. For eight months, Pat and Tai (caregivers) had been taking Alyssa to therapy for anger and depression arising from Alyssa’s worries about her parents’ unstable, volatile relationship. Alyssa’s therapist reported that the recent domestic violence incident had left Alyssa “very scared” and unwilling to go back to “her ‘daddy’s home.’” The detention report, however, also noted that Ricardo was affectionate with Alyssa, who enjoyed his company. The detention report discussed Ricardo’s two earlier convictions for domestic violence and both parents’ failure, in earlier proceedings, to follow through on therapy and services DCFS had offered them. At the jurisdiction/disposition hearing on February 15, 2005, the dependency court sustained the petition, restricted the parents to monitored visitation, ordered that DCFS provide them with reunification services, ordered them not to discuss the petition allegations with Alyssa, and left Alyssa in Pat and Tai’s care. (Ricardo V. v. Superior Court (2007) 147 Cal.App.4th 419.)
In March 2006, based on the parents’ claims that their relationship had improved and that Ricardo was regularly attending therapy, the court allowed both parents unmonitored visits with Alyssa as long as both parents remained in therapy. On July 11, 2006, after a contested section 366.22 hearing at which Rachel and Ricardo testified that the violence between them had stopped, the referee maintained jurisdiction over Alyssa, ended the existing placement with Pat and Tai, ordered Alyssa placed permanently in Ricardo’s home, found Ricardo but not Rachel in compliance with the case plan, and terminated Rachel’s reunification services. (Ibid.)
On July 20, 2006, Alyssa’s counsel applied, pursuant to section 252, for a rehearing of the section 366.22 proceeding before a judge, which was granted. On August 25, 2006, Pat and Tai filed a de facto parent request to participate in the rehearing. On August 30, 2006, DCFS reported on troubling new evidence about problems and violence between Alyssa’s parents, including Rachel’s statements that she and Ricardo had lied to the court at the July 2006 hearing, Ricardo had not changed, and the domestic violence continued. On September 12, 2006, a referee granted de facto parent status to Tai, but not Pat. At the September 18-19, 2006 contested rehearing, the judge found that both parents were manipulative and untrustworthy, both had lied at the July 11 hearing, and Ricardo had unresolved anger management and domestic violence issues and had made no progress toward case plan compliance. The judge terminated Ricardo’s reunification services, limited both parents to monitored visits, ordered Alyssa again placed with Pat and Tai, and set the section 366.26 permanency hearing for January 10, 2007. Ricardo filed a writ petition challenging the judge’s orders, which we denied. (Ibid.) Tai also filed a writ petition challenging the denial of Pat’s de facto parental status, which we granted. (Theresa G. v. Superior Court (Jan. 31, 2007, B194422) [nonpub. opn.].)
On January 9, 2007, Ricardo filed a section 388 petition seeking modification of the September 19, 2006 orders placing Alyssa with Pat and Tai and limiting Ricardo to monitored visits. Ricardo requested either that Alyssa be placed with him or that he be granted unmonitored, weekly weekend overnight visits, plus reinstatement of his reunification services and unmonitored overnight visits for Alyssa with her paternal grandmother.
On January 10, 2007, in a report for the scheduled section 366.26 hearing, DCFS asserted that Alyssa was well-situated and thriving with her caregivers, noting that she had lived with them most of her life, saw their home as her home, viewed their four-year-old daughter as her own “‘baby sister’” and had a strong sibling relationship with her, had developed close friendships at her school and in her neighborhood, and had said that she wanted to live with her caregivers but visit with Ricardo and Rachel. The report noted that Alyssa’s therapist had diagnosed her with post-traumatic stress disorder and adjustment disorder, but the therapist found that Alyssa’s anxiety level had decreased since she was returned to her caregivers’ home.
DCFS also addressed Ricardo’s weekly monitored visits with Alyssa, which Ricardo had regularly attended since September 28, 2006. Regarding the first such visit, a DCFS caseworker recounted that when Ricardo and his new wife, Marguex, came to DCFS’ monitored visiting room, Ricardo and Alyssa were reluctant to make eye contact with each other or show affection toward each other, although Ricardo engaged Alyssa more later in the visit. At the second visit, Alyssa did not want Tai to come to the waiting area with her because “‘I don’t want my dad to hurt Tai.’” The monitor noted that Ricardo’s interaction with Alyssa was improving, but he had to be reminded not to speak hostilely to the monitor and still showed “a lot of anger and hurt.” In November, 2006, Ricardo hired a private monitor for his Saturday visits, and the first went well, but at the second, on December 9, 2006, when Ricardo and Marguex took Alyssa to the zoo, the monitor warned Marguex about whispering to Alyssa and about discussing forbidden topics. Ricardo then “‘went off yelling that they are not whispering and that [the monitor] was a mean monitor.’” The monitor cut the visit short.
The record gives several different spellings of Marguex’s name, so we have standardized the spelling according to the spelling she herself gave during her testimony in April 2007.
The DCFS report also stated that Pat and Tai’s adoptive home study application was approved in December 2006. The report noted Alyssa’s “strong and healthy attachment” to both of her caregivers and their daughter and recommended adoption by Pat and Tai as “the best and most secure permanent plan for Alyssa.” Regarding Ricardo, DCFS reported that he continued to display hostile and aggressive behavior.
During February and March 2007, after we issued our decisions on the parties’ writ petitions, because of one party or another refusing to stipulate to a hearing officer or filing an affidavit of prejudice, the case was transferred to four different hearing officers before it was assigned to the commissioner who ruled on the matters Ricardo here appeals. After additional delays resulting from changes of counsel, the commissioner set the section 388/366.26 hearing for April 24, 2007.
In an interim review report filed in early April 2007, DCFS discussed additional visits between Ricardo and Alyssa. At a visit on October 23, 2006, Ricardo told Alyssa, “‘[T]hey’re [Pat and Tai] not your family Alyssa, they’re nothing to you[,] they’re nothing but a bunch of liars so whatever they tell you the[y’re] lying to you.’” The caseworker noted that she had “observed [Ricardo] making inappropriate comments about the caregivers in front of Alyssa[,]” he had “repeatedly stated that he does not want Alyssa to have any contact with the caregivers,” and he “continue[d] to display explosive and manipulative behavior[.]” Regarding Ricardo’s reliance on a series of interns for therapy, the caseworker reported, “To date, [Ricardo] has not completed a domestic violence/batterer program and continues to seek therapy with interns who are not fully informed or trained to address [Ricardo’s] history of domestic violence.”
The report for the April 24, 2007 hearing described additional visits at which Ricardo was affectionate toward Alyssa, and Alyssa showed no anxiety regarding Ricardo. The report noted that Ruth Lenard, who monitored Ricardo’s visits from November 2006 through early March 2007, had reported favorably on Ricardo’s interactions with Alyssa, but DCFS removed Lenard as monitor because of “concern about [her] objectivity and ability to redirect [Ricardo’s] discussion of case related topics.” Rachel, who was living in New York but had been having regular weekly telephonic visits with Alyssa, alleged that Alyssa had told her that Ricardo said bad things about Rachel. DCFS repeated its recommendation that Pat and Tai be allowed to adopt Alyssa.
At the April 24, 2007 hearing, the court considered only Ricardo’s section 388 petition. Dr. Michael Ward testified, and the court admitted his psychological evaluation of Ricardo dated November 30, 2006. Dr. Ward found “no clear, current data” showing that Ricardo had a problem with domestic violence or posed any threat to Alyssa, but did not rule out the possibility. The principal DCFS caseworker testified, and the court admitted the various DCFS reports into evidence. Alyssa’s therapist for more than three years testified that Alyssa sometimes said that she wanted to see Ricardo and occasionally spend the night at his home, but that Alyssa changed the subject when the therapist asked her whether she enjoyed her visits with Ricardo. Marguex and Alyssa’s paternal grandmother described Alyssa’s visits with Ricardo positively. Ricardo also testified. He denied that he had shouted at the private monitor during the zoo visit. Regarding an allegation that he had spat at Tai, he stated that he had spat in the street at a distance from her due to congestion, but Tai had misinterpreted it. Ricardo admitted having called the caretakers baby-snatchers in August 2006 and having told Alyssa, regarding Pat and Tai, that God does not condone same-sex unions, but he stated that he had changed, therapy had helped him, and he would not repeat his insensitive or hostile acts and statements of the past.
The section 388 hearing was continued to May 16, 2007, then to June 13, June 14, and July 16, 2007, because of attorneys’ schedule conflicts or illness. On May 16, Ricardo moved for the court to order a bonding study to be considered at the section 366.26 hearing; the court denied his motion as premature.
On July 16, 2007, at the continued section 388 hearing, Ruth Lenard testified regarding Ricardo’s visits with Alyssa between November 2006 and March 2007. Lenard stated that in early November 2006, Alyssa did not want to attend the visits, but by late November or December 2006, Alyssa “was more relaxed and . . . looked forward to” visits with Ricardo and Marguex at which they all watched movies, played at the computer, or made posters. Another DCFS monitor, who had monitored Ricardo’s visits with Alyssa both before and after Lenard, recounted that there was a lot of tension at the visits before November 2006, but the visits were much better, and without tension, from March through June 2007, with Ricardo, Marguex, and Alyssa playing games, working on puzzles or coloring books, and talking.
A private monitor reported that at a February 2007 father-daughter dance at Alyssa’s school, Alyssa was “very excited about the dance and . . . to see her father[,]” that she enjoyed the dance, and that on the way home, she “got really, really sad” and when asked what was wrong, “she just said, ‘I miss my daddy.’” A different private monitor whom Ricardo hired to monitor Alyssa’s attendance at various special family events similarly reported that Alyssa was happy and excited to see Ricardo and her cousins, Ricardo’s interaction with Alyssa was “loving and attentive,” and on the way home from one event, Alyssa told the monitor “that she loved her father and that she wanted to live with him. That was a secret.”
During a break in testimony, the commissioner asked Alyssa’s counsel to assess Alyssa’s feelings about the case, if this could be done without causing detriment to her. The next day, July 17, 2007, Alyssa’s counsel reported that when she tried to question Alyssa, Alyssa was hyperactive, hyperkinetic, and agitated, and would hardly calm down enough to answer questions; that “no matter what question I asked, she was trying to please me”; and that when Alyssa could not tell whether she had given the answer that she thought her counsel wanted to hear, she again became uncontrollably hyperactive. The court agreed with counsel that it would be detrimental to Alyssa to compel her to testify.
Later on July 17, 2007, Tai testified. She described how Alyssa began living with her and Pat for weekends two or three months after her birth, then ended up living with them full time from her eighth to fourteenth month. Alyssa had spent at least six of her eight years living at Pat and Tai’s home and was closely bonded to their four-year-old daughter, whom Alyssa had known from the daughter’s birth. Tai stated that she and Pat treated Alyssa as their own daughter, took Alyssa on family vacations and to dental and medical appointments, attended her parent-teacher conferences, and had paid for and taken her to therapy for the preceding three years. Tai asserted that Ricardo had shown little interest in Alyssa’s education or her medical or dental issues. She stated that her relationship with Ricardo was “very, very tense” and that he made her nervous.
Following closing arguments, in which counsel for the various parties addressed both changed circumstances and Alyssa’s best interest, the court found no change in circumstances and tentatively denied Ricardo’s section 388 petition on that basis, but announced that it would leave the determination of Alyssa’s best interest until the later section 366.26 hearing. The court denied Ricardo’s counsel’s requests to call Alyssa to testify.
After an additional continuance due to counsel’s illness, on August 27, 2007, the court held the section 366.26 hearing. Alyssa’s therapist testified regarding her April 22, 2007 report, admitted into evidence, in which she opined that Alyssa badly needed stability and that the dependency process was “beginning to impact her in very adverse ways[.]” The therapist described Alyssa’s complete emotional “‘melt down’” when she was confronted with questions about with whom she would live and “her feelings about the instability of her life.” The therapist questioned the extent of Ricardo’s bond to Alyssa and observed that Alyssa had “a tremendous amount of anxiety when we discuss [Ricardo] or living with him.” Pat and Tai, however, had provided “a very stable, loving, and supportive home life[,]” and Alyssa expressed love and loyalty to Pat and Tai and felt safe and secure with them. The therapist noted that Alyssa seemed conflicted about whether she wanted to live with her father or with Pat and Tai. At different times she spoke of wanting to live with Ricardo, with Pat and Tai, or even with Rachel, and longed to be loyal to all of them simultaneously. Although section 388 was not discussed at the hearing on August 27, 2007, the minute order from that date states, “The WIC 388 Petition is denied. The best interest of the child(ren) would not be promoted by proposed change of order.”
On August 28, 2007, the private monitor who had attended the father-daughter dance in February 2007 testified regarding two additional happy visits between Alyssa and Ricardo, Marguex, and their new baby daughter in July 2007. The monitor described how after the second visit, Alyssa became upset when the monitor told her she could not sleep at Ricardo’s house and refused to leave the monitor’s car when they arrived back at Pat and Tai’s house. Ricardo testified that between ages 2 and 5, Alyssa had lived with him 75 percent of the time, from age four and a half to age six she had lived with the caregivers about 50 percent of the time, and this was because the caregivers agreed to pay for Alyssa’s health insurance, which Ricardo then could not afford.
In closing arguments, counsel for Alyssa and for the caregivers joined with counsel for DCFS in urging Alyssa’s adoption and arguing that Ricardo had not shown a parental bond with Alyssa and so had not established an exception to adoption under section 366.26, subdivision (c)(1)(A). The court, noting that it had been a “difficult and contentious case[,]” took the case under submission pending its written opinion and took judicial notice of the entire case file.
On September 27, 2007, the court, in its written opinion, first discussed its reasons for denying Ricardo’s section 388 petition. It concluded that Ricardo had not shown changed circumstances regarding either his domestic violence issues, which the court found had not been sufficiently addressed, or his relationship with Alyssa, which the court found to have remained fundamentally strong and positive throughout the period since these dependency proceedings began in January 2005. The court also found that Ricardo, in his testimony, had exaggerated his role as Alyssa’s caretaker, given that even the paternal grandmother, in January 2005, had stated that Pat and Tai had cared for Alyssa for 80 percent of her life. The court noted, “On August 27, 2007 . . . this court denied the 388 Petition on a finding of no substantial change in circumstances . . .; and that there was not sufficient evidence that the best interests of the child would be promoted by the granting of the petition.”
Regarding the section 366.26 hearing, the court noted that there was no dispute that Alyssa was adoptable, and that the issue was only “whether [Ricardo] has established a [section 366.26, subdivision] (c)(1)(A) defense that would preclude termination of his parental rights.” The court found that Ricardo’s testimony as to his parental role in Alyssa’s life was vague, inconsistent, and not credible, and that despite successful visits, Ricardo had not established a parental role in Alyssa’s life. The court also discussed its findings that termination of parental rights would be in Alyssa’s best interest, a separate sufficient ground for denying the section 366.26, subdivision (c)(1)(A) exception. The court acknowledged that “Alyssa has a strong emotional attachment to her father and is now enjoying her monitored visits with him[.]” She had, at various times, told her therapist or her social worker that she wanted to live with Ricardo, with Pat and Tai, even with Rachel. In therapy, however, Alyssa had consistently indicated her love for Pat, Tai, their daughter, and for her school, neighborhood, and friends. The court found that a guardianship over Alyssa by Pat and Tai would be uncertain, unstable, and unsatisfactory under the facts of this case, and would be detrimental to Alyssa, “because of the antipathy, hostility, and anger [Ricardo] displays toward Pat and Tai” and the constant threat of future section 388 petitions to challenge the guardianship. The court found that Alyssa would not suffer detriment from the termination of parental rights because Pat and Tai had steadfastly promoted a continuing relationship between Alyssa and Ricardo and had reached out to Ricardo in the past “despite his negativity, hostility, and anger, and there is no evidence that they will not continue to do so.” The court concluded that adoption by Pat and Tai could allow Alyssa to “have the best of both worlds”—a stable, happy home, and a relationship with her father—if Ricardo cooperated. The court terminated Ricardo and Rachel’s parental rights to Alyssa and ordered DCFS to refer the parties to the Consortium for Children’s Rights “in order to explore a voluntary post-adoption contract between the parties for visitation between [Ricardo] and Alyssa.” Ricardo timely appealed the denial of his section 388 petition and the termination of his parental rights to Alyssa.
DISCUSSION
I. Section 388
Ricardo contends the dependency court erred by denying his section 388 petition. We disagree.
A parent who petitions to modify an existing dependency court order under section 388 must show, by a preponderance of the evidence, both changed circumstances and that the modification would be in the child’s best interest. (§ 388; Cal. Rules of Court, rule 5.570(a), (h); In re Casey D. (1999) 70 Cal.App.4th 38, 47, 48.) A trial court has discretion in determining changed circumstances and the child’s best interest (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704), and a reviewing court will not disturb the trial court’s decision unless the trial court abused its discretion by making an arbitrary, capricious, or patently absurd determination that exceeds the bounds of reason (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319). “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Section 388, subdivision (a) provides, in pertinent part, “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made[.]”
Regarding section 388, Ricardo invokes In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.), in which the Fourth District set forth various factors for determining a child’s best interest in the section 388 context, including: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The Kimberly F. court emphasized that these factors are not exhaustive or exclusive (ibid.); naturally, such a determination is necessarily highly fact- and case-specific.
Ricardo contends “the court did not apply [Kimberly F.] factors, or any other factors, to the question of . . . Alyssa’s best interests[.]” Ricardo, however, cites no authority holding that a court must expressly state in the record its findings on the Kimberly F. factors to demonstrate that it has applied and considered them. We note that findings may be implied rather than explicit, and a reviewing court “will infer a necessary finding provided the implicit finding is supported by substantial evidence.” (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.) Ricardo’s counsel’s closing argument at the August 27, 2007 hearing discussed the Kimberly F. factors at length, and opposing counsel all addressed Alyssa’s best interest, so the record demonstrates that the dependency court was aware of these factors. Regarding the first and third of the Kimberly F. factors, these dependency proceedings began because of domestic violence, a serious problem, and in the course of making its findings regarding changed circumstances, the court necessarily considered the key elements of the first and third factors in concluding that Ricardo had not sufficiently demonstrated the eradication of the problem.
More importantly, the court heard and considered a large volume of evidence and testimony addressing the second factor, the relative strength of a child’s bonds to her parent and to her caretakers, which is crucial to both a section 388 determination and a section 366.26, subdivision (c)(1) determination. (See Kimberly F., supra, 56 Cal.App.4th at p. 531.) “While the bond to the caretaker cannot be dispositive,” our Supreme Court has held that “the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.” (Ibid.; see also In re Jasmon O. (1994) 8 Cal.4th 398, 408, 414-422.) Here, substantial evidence showed that Alyssa, although bonded to Ricardo, was more closely bonded to Pat and Tai, who had cared for her for most of her life; she also was bonded to their daughter; and Ricardo, based upon past statements and conduct, posed a significant risk not merely of disrupting those bonds, but of breaking them altogether, if he regained custody of Alyssa. Substantial evidence also showed that Alyssa was suffering from the prolonged dependency proceedings and resulting custody limbo she had endured; she needed stability and permanency immediately; and Pat and Tai had a track record of many years of providing an excellent home for her. In the section 388 context, Ricardo bore the burden to show, by a preponderance of the evidence, that it was in Alyssa’s best interest either to remove her from Pat and Tai and place her with him, or to grant him additional reunification services and further prolong this dependency case. We cannot find that the court abused its discretion by determining that Ricardo did not carry that burden.
Because we have found no abuse of discretion in the court’s finding regarding Alyssa’s best interest, which is a sufficient basis in itself for denying a section 388 motion, we need not and will not address Ricardo’s arguments on changed circumstances.
II. Section 366.26
Ricardo contends the dependency court erred by finding that the exception to adoption pursuant to section 366.26, subdivision (c)(1)(A), did not apply. We disagree.
Former section 366.26, subdivision (c)(1)(A), substantially identical to the current section 366.26, subdivision (c)(1)(B)(i), provided that if, at a section 366.26 hearing, the court found that the dependent child was likely to be adopted, then the court should terminate parental rights and order the child placed for adoption “unless 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: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The alternatives to adoption at the section 366.26 hearing are legal guardianship or long-term foster care. (§ 366.26, subd. (c)(4)(A).) After family reunification services cease, the clear legislative preference is for adoption as the most stable, permanent placement choice. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Courts have interpreted the subdivision (c)(1)(A) exception to require a relationship that promotes the child’s well-being to a degree that outweighs the benefits the child would gain from a permanent home with adoptive parents. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) The juvenile court enjoys considerable discretion in selecting permanent placement options and determining whether exceptions apply under section 366.26. Appellate courts generally apply the deferential substantial evidence standard in reviewing such determinations. (See, e.g., id. at pp. 1533-1534; In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577; In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) Under this standard, we must accept as true the evidence most favorable to the order, and we may not reweigh the evidence or substitute our judgment for that of the trial court. (See In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
A minority of appellate courts have applied the similarly deferential abuse of discretion standard instead. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For our purposes, “[t]he practical differences between the two standards of review are not significant” because both require that we show broad deference to the trial judge on factual findings. (Ibid.)
Under the abuse of discretion standard, a reviewing court must view all evidence most favorably in support of the trial court’s order and reverse only if no judge reasonably could have made that order. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Because both Alyssa’s adoptability and Ricardo’s regular visitation never were in doubt, the court focused on the issues of Ricardo’s parental role and whether his relationship with Alyssa outweighed the benefits of her adoption by Pat and Tai. The court concluded, “[Ricardo] has not established a [section 366.26, subdivision] (c)(1)(A) defense on the basis of three separate but independent reasons: (1) termination of parental rights would not be detrimental to Alyssa because [Ricardo] does not occupy a ‘parental’ role in her life; (2) it would be in the best interests of Alyssa to be adopted by Pat and Tai in order to maintain, on a permanent basis, the love, nurturing, and care she is now receiving from them; (3) termination of parental rights would not be detrimental to Alyssa because she will be permitted ongoing visitation and contact with her father after termination of parental rights.” Ricardo maintains that there is no substantial evidence to support any of these three separate, independent bases for the court’s order terminating Ricardo’s parental rights. We disagree.
As Ricardo correctly notes, balancing the parental relationship against the benefits of adoption must be done on a case-by-case basis. (See In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.) Here, the court found that “placement of Alyssa with Pat and Tai under guardianship would always be uncertain and unstable because of [Ricardo’s] antipathy, hostility and anger” toward them, and because of the ongoing threat of future section 388 petitions from Ricardo challenging the guardianship “without regard to Alyssa’s best interests.” In so concluding, the court relied upon substantial evidence from Alyssa’s therapist, among other sources, that Alyssa was suffering severely from the ongoing custody tug-of-war over her. This evidence supported a conclusion that it was in Alyssa’s best interest that the tug-of-war end. Thus, under the particular circumstances of this case, the court determined, based upon substantial evidence, that the benefits to Alyssa of stability and certainty from adoption by Pat and Tai outweighed the benefits to her from Ricardo’s relationship with her. Accordingly, we may not reweigh the evidence to reach a different conclusion.
Ricardo contends the court misinterpreted the requirements of section 388 by suggesting that a permanent plan of guardianship would give Ricardo the “unilateral power to ‘terminate the guardianship without regard to Alyssa’s best interests.’” The court was not concerned with Ricardo’s power unilaterally to terminate the guardianship, however, but with his power to continue the custody tug-of-war by repeatedly seeking to terminate the guardianship.
Because substantial evidence supports one of the court’s three independent grounds for termination of Ricardo’s parental rights, we need not and will not address the other two.
DISPOSITION
The orders are affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.