Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ116909 Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant M.R.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant D.M.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
The parents of D.R. and M.R. appeal an order terminating their parental rights. We will affirm the judgment.
OPINION
McKINSTER, Acting P.J.
FACTUAL AND PROCEDURAL HISTORY
A dependency petition was filed on August 22, 2008, alleging that 15-year-old B.B. and her half siblings, D.R. (age 2) and M.R. (age 19 mos.) (hereafter D. and M.), came within the provisions of Welfare and Institutions Code section 300, after their mother (hereafter mother) was arrested on charges of fraud and identity theft. (All statutory citations herein refer to the Welfare and Institutions Code unless otherwise indicated.) The petition alleged that neither B.B.’s father nor D. and M.’s father resided with them or provided support.
B.B. and her father are not parties to this appeal.
D. and M.’s father (hereafter father) could not be contacted that day, but he returned the social worker’s call the following day. He told the social worker that he had recently been released from jail and was on formal probation for an undisclosed offense, later determined to be possession of a firearm by convicted felon or narcotic addict, in violation of Penal Code section 12021, subd. (a)(1). He admitted to prior substance abuse and a criminal record. He stated that he had been clean and sober since the prior November. He agreed to drug test that day.
The children were detained and ordered placed in suitable care. Visitation was ordered as directed by the Department of Public Social Services (DPSS).
The parents filed ICWA (Indian Child Welfare Act) notification forms indicating that father and the children might have Cherokee ancestry. ICWA notice and inquiries were mailed to the Cherokee Nation, the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokees. The Cherokee Nation responded that the children were not considered Indian children with respect to it. The other tribal entities did not respond. The court found that notice had been provided and found that ICWA does not apply.
An amended petition was filed on September 23, 2008, prior to the jurisdictional hearing. As to mother, the amended petition alleged that she was arrested on or about August 20, 2008, for fraud and identity theft, and had left the children without a caretaker. It alleged that she had placed the children at risk of suffering serious harm as a result of her extensive criminal history and as a result of her failure to take prescribed medication for an unspecified mental illness.
As to father, the amended petition alleged that he was not a member of the children’s household and had failed to provide them with adequate food, clothing, shelter, medical treatment, support and/or protection, and that he was homeless and unable to provide the children with a stable living environment.
At the jurisdiction/disposition hearing, the parents submitted on the amended petition, and the court found the allegations of the amended petition true. The court continued the children’s out-of-home placement and ordered the parents to participate in their case plans as directed by DPSS. The court authorized an increase in visitation and unsupervised visitation if they were in compliance and with the approval of DPSS. The court set a review hearing for March 19, 2009.
At the time of the jurisdiction and disposition hearing, father was unemployed and supported himself by doing odd jobs for friends and collecting cans and bottles to recycle. He maintained that although he did not pay child support, he did buy food and diapers for his children whenever they needed it. He had a lengthy history of use of marijuana and methamphetamine. He believed that he would benefit from parenting education, substance abuse treatment, counseling and transportation and housing services. He stated that he would like to go to a shelter where he would be able to work. He admitted that he did not have suitable housing for the children and needed help with substance abuse issues. He was given a referral to Friends of Jefferson, which provides a vocational employment program and a transitional living program, as well as a referral to the City of Riverside Homeless Outreach Team, which provides housing referrals, employment referrals, substance abuse treatment placements and other services.
Father wanted the children returned to mother, but if that was not possible, he wanted them placed with their maternal aunt. Return to mother was not possible because, in addition to her pending criminal charges, she had current substance abuse issues and unresolved mental health issues.
By the time of the six-month review hearing, father had visited weekly with the children and had completed parenting classes, participated in substance abuse counseling and had apparently maintained his sobriety and remained drug free, although he had missed some random drug tests. He was living in a sober-living home and, as part of the program in that facility, was not yet permitted to work. He was therefore not providing for his children’s physical needs. He was “working toward” being able to provide for those needs, but felt that he needed “to straighten out his life first.” DPSS felt that it was possible that with an additional six months of services he could address the employment and housing issues and that the children could be returned to his care within that time.
However, in an addendum report prepared for the six-month review hearing, DPSS requested that two psychological evaluations to determine father’s ability to benefit from services. Although he had apparently made much progress in his substance abuse treatment, DPSS was concerned that he maintained frequent contact with the mother, including “going to her house for lunch and riding together to visits.” He had also been observed “drawing hand puppets and communicating through them during a meeting.” The social worker believed that although father was actively working on his case plan, he had not demonstrated that he had benefitted from the services. He continued to be “extremely dependent on others, ” including mother, for his care and support. The social worker was concerned that he might have difficulty processing information and might be unable to transfer the knowledge he learned in classes to actually caring for his children. In addition, father still felt that rather than focusing on establishing a home for his children, he needed to “better himself by obtaining more education or specializing in a trade” before he could provide for his children. He hoped to be able to provide for them “on a long term basis.”
At the six-month review hearing, the court found that mother had failed to benefit from the services she was provided because she had eight unexcused absences from a behavioral health program and four positive drug tests, and because methamphetamine and drug paraphernalia were found in her bedroom during a search of the residence by law enforcement. During the search, they also found “possible evidence... of a new fraud case.” The court described her as “totally uncooperative” in drug testing. However, because it found that father had made “adequate, but incomplete” progress toward completing his case plan and that there was a substantial probability that the children could be returned to his physical custody by the next review hearing, the court ordered continued services for both parents. The court informed mother that unless she made substantial progress before the next hearing, it would terminate her services. The court also ordered father to participate in a psychological evaluation.
In its report for the 12-month review/permanency hearing, DPSS recommended terminating services. Mother was by then serving a 16-month sentence in state prison. Father had completed his case plan but still continued to reside in a sober-living facility and did not have housing for the children. He was also not yet employed. He stated that he was having trouble securing employment because of his criminal background. He requested assistance in finding housing, but the social worker stated that he was ineligible for “section eight” or HUD housing because of his criminal background. The social worker commended father’s efforts to maintain a bond with his children and reported that his visits were always positive. The children were in a stable placement and were bonded to their caregiver and doing well.
An addendum report stated that father had obtained part-time work as a house painter but was still living at the sober-living facility. The psychological evaluation report had been received, and stated that father’s ability to benefit from services to the point of being able to be an active and effective parent to two young children was “remote.”
At the 12-month review/permanency hearing, father submitted on the recommendation that services be terminated and the case set for a section 366.26 hearing because, although he had maintained suitable employment and had otherwise completed his case plan, he had still not obtained suitable housing for the children. Mother had been released from custody and asked for additional services. The court found that reasonable services had been provided to both parents and that mother had failed to make substantive progress toward completing her case plan and that father had made “minimal” progress. The court found by clear and convincing evidence that there was no substantial probability of returning the children to either parent if further services were granted. Moreover, as of the following day, 18 months had elapsed since the children were taken into custody. The court terminated services. It advised the parents of their right to seek writ review and set a section 366.26 hearing. Neither parent filed a writ petition.
On June 24, 2010, the court held a contested section 366.26 hearing and a hearing on father’s petition for modification of the order terminating his services. The petition stated that father had completed his case plan and had steady employment but was still looking for suitable housing for himself and the children. It stated that the children had a strong bond with him and that they would benefit by maintaining the relationship. The court found that the modification petition did not demonstrate that father’s circumstances had changed but at most were changing. Further, it found that the children were doing well in their prospective adoptive home, where they had been for some period of time, and stated that it could not conclude that granting the petition and reinstating services would be in their best interest. Accordingly, it denied the petition.
At the contested section 366.26 hearing, the parents asserted the beneficial relationship exception to the statutory preference for termination of parental rights. They requested that the children be placed in a legal guardianship rather than placed for adoption. The court found by clear and convincing evidence that it was reasonably likely that the children would be adopted and that a sufficient basis for termination of parental rights existed based on the findings made at the 12-month review hearing, i.e., that reasonable services had been provided or offered to the parents and that despite the services offered or provided, the children could not be returned to the parents’ custody and there was no substantial probability of return within six months. The court found by clear and convincing evidence that the termination of parental rights would not be detrimental to the children and that none of the exceptions provided for in section 366.26, subdivision (c)(1)(A) or (c)(1)(B) applied. The court found by clear and convincing evidence that adoption was in the children’s best interest, and it therefore terminated parental rights and referred the children for adoptive placement.
Each parent filed a timely notice of appeal.
Mother joins in father’s arguments and presents none of her own on the premise that if we reverse the order terminating his parental rights, we will have to reverse the order terminating hers as well. We need not address that issue, which DPSS disputes, because we are not reversing the termination order as to father.
LEGAL ANALYSIS
FATHER’S DUE PROCESS RIGHTS WERE NOT VIOLATED
Father contends that the court failed to make a finding, by clear and convincing evidence, that awarding him custody of the children would be detrimental to them. He contends that such a finding is necessary before termination of his parental rights. He contends that this was a violation of his due process rights arising out of his fundamental interest in the companionship, care, custody and management of his children. (See Santosky v. Kramer (1982) 455 U.S. 745, 758.) Father’s argument fails, however, because he is neither the children’s presumed father nor a so-called Kelsey S. father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S).) Under those circumstances, as a “mere biological father, ” he has no due process right not to have his parental rights terminated without a showing of his unfitness as a parent or detriment to the children by clear and convincing evidence. (In re A.S. (2009) 180 Cal.App.4th 351, 362.)
A finding of detriment to the child is the equivalent of parental unfitness. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.)
Under the dependency statutes, presumed fathers have far greater rights than “mere biological” fathers. (In re Zachariah D. (1993) 6 Cal.4th 435, 448, 451.) A man is a presumed father if he meets the criteria of Family Code section 7611. Under that statute, “a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both ‘receives the child into his home and openly holds out the child as his natural child.’” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051, italics omitted; see In re Zachariah D., supra, at p. 449 [“‘parental rights are generally conferred on a man not merely based on biology but [rather] on the father’s connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child’”]; and Fam. Code, § 7611, subd. (d).) A “biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in [Family Code section 7611].” (In re Zachariah D., supra, at p. 449, fn. 15.)
An unwed biological father who does not qualify as a presumed father may nevertheless attain parental rights equal to those of the mother by showing that “he promptly stepped forward to assume full parental responsibilities for the child’s well-being, including a financial, emotional or other commitment; the child’s mother thwarted his efforts to assume his parental responsibilities; and he demonstrated a willingness to assume full custody of the child.” (In re Jason J. (2009) 175 Cal.App.4th 922, 932, fn. omitted, citing Kelsey S., supra, 1 Cal.4th at p. 849; and Adoption of Michael H., supra, 10 Cal.4th at p. 1060; see also Kelsey S., at pp. 825-826, 848-851.) Kelsey S. pertained to a private adoption. (Kelsey S., supra, at p. 821.) In the context of dependency proceedings, Kelsey S. allows a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process and who displays a commitment consistent with the standard set forth in Kelsey S., “to participate as a ‘parent’ in, or end the need for, the dependency proceedings.” (In re Zachariah D., supra, 6 Cal.4th at p. 451.) If the biological father makes the necessary showing, his parental rights may not be terminated without a showing of unfitness or detriment to the child. (Kelsey S., supra, at p. 849.)
Here, although father’s biological paternity is undisputed, he has never asserted that he qualifies either as the children’s presumed father or as a Kelsey S. father, and the court made no such finding. Consequently, he has not established that he has any due process right to require a finding of unfitness or detriment by clear and convincing evidence before his parental rights could be terminated. (In re A.S., supra, 180 Cal.App.4th at p. 362; In re Jason J., supra, 175 Cal.App.4th at p. 935.)
At the section 366.26 hearing, the court referred to father as the presumed father. However, we are unable to find in the record any actual finding that he is the presumed father. The social service reports, including the one submitted for the section 366.26 hearing, for the most part refer to him as the alleged father or the biological father, and never refer to him as the presumed father.
In any event, even if we assume that father had a due process right to a finding by clear and convincing evidence that returning the children to his care would be detrimental, that finding was made at the disposition hearing. There, the court found by clear and convincing evidence, pursuant to section 361, subdivision (c)(1), that there would be substantial danger to the children’s physical or emotional well-being if they were returned to the custody of either parent. Repeated findings of detriment by the clear and convincing standard are not required prior to termination of parental rights. In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, the court explained that while the disposition order removing the child from parental custody must be based on a finding of detriment by clear and convincing evidence, subsequent orders continuing the child in placement outside the parent’s home need not be supported by that standard of evidence in order for California’s dependency scheme to comport with due process. Rather, the statutory scheme satisfies due process because it involves a series of hearings at which it is presumed that the child will be returned to the parent’s custody unless the social services agency can prove that return would be detrimental to the child. (Id. at pp. 253-256.) Moreover, appellate review, by direct appeal or by writ petition, is available at every stage of the proceedings, up to and including termination of parental rights. (§ 395; In re S.B. (2009) 46 Cal.4th 529, 531-532.)
Father did not challenge that finding by filing an appeal from the disposition order, and he cannot challenge it now. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
Citing In re G.S.R. (2008) 159 Cal.App.4th 1202, and In re P.C. (2008) 165 Cal.App.4th 98, father contends that a finding of detriment cannot be based solely on his “poverty and homelessness.” In In re G.S.R., the court held that the parental rights of a nonoffending father, whose children lived with his relatives while he “stayed close, maintained familial ties and worked to raise rent money” so that he could provide housing for his children, could not be terminated simply because he was unable to obtain suitable housing, particularly since the social services agency failed to provide him with assistance in obtaining affordable housing. (In re G.S.R., supra, at pp. 1207-1213.) In In re P.C., the court held that the parental right of a mother, whose actions were the cause of the children’s dependency, could not be terminated when she had fully and successfully completed her case plan and the only remaining problem was her inability to obtain housing suitable for the children, despite her diligent efforts to do so. The court based its ruling in part on testimony of the social worker at the termination hearing, which established that the agency had “failed to do its part” in helping the mother to find suitable housing. (In re P.C., supra, at pp. 101-102, 105-107.)
This case differs from In re P.C., supra, 165 Cal.App.4th 98, and In re G.S.R., supra, 159 Cal.App.4th 1202. Father completely ignores the fact that the evidence before the court showed that, despite 18 months of services—the sufficiency of which father never challenged, until now—father was still unable to provide adequate care for the children, both in that he did not have housing which could accommodate them and in that he had not achieved the ability to be an effective parent. In the addendum report, dated May 14, 2009, prepared for the six-month review, the social worker stated that father remained dependent upon others, including mother, for his care and support, that there continued to be a concern that that he may have difficulty processing information and transferring the knowledge he had acquired in parenting classes to the actual care of his children, and that he did not appear to have benefitted from services sufficiently to be an effective parent. This concern was supported by the court-ordered psychological evaluation. The psychologist concluded, based on a number of factors discussed in the report, that father, at the age of 39, was dependent on others in various ways and had “a ways to go to be able to establish himself as independent, let alone doing that while caring for 2 young children, ” and that “the probability is high that if he were to be given custody of young children, they would have to rear themselves.”
The court did not explicitly rely on the psychological evaluation in deciding to terminate services. However, the report was attached to the addendum report filed November 4, 2009, which was admitted into evidence at the 12-month review/permanency hearing.
Father challenges this report as stale. However, by the time of the 12-month review/permanency review hearing, father had not progressed to unsupervised or overnight visits with the children, even though such visits had been authorized and had therefore not demonstrated that he had learned how to act in a parental role, nor had his circumstances materially changed in any other respect. All of this information was before the court when it found, by clear and convincing evidence, that there was no substantial probability that the children could be returned to father’s custody if additional services were offered.
He also complains that the report erroneously stated that he was dependent on his mother for support. This appears to be a typographical error, in that the report also states that father’s mother died when he was eight. Presumably, the comment as to father’s dependence on others is taken from the social worker’s report, which states that father is dependent on others, including the children’s mother.
An additional significant difference between this case and In re G.S.R., supra, 159 Cal.App.4th 1202, and In re P.C., supra, 165 Cal.App.4th 98, is that unlike the parents in those cases, father never actually sought custody of the children. Rather, he repeatedly told DPSS that he needed to work on his own problems first, including his sobriety and his need for education or training in order to be able to earn a living and provide a home for the children. Even at the section 366.26 hearing, he did not assert that he was ready and able to take custody of the children. Instead, he asked the court to place the children in a guardianship so that he could seek custody at some undefined future time.
Father criticizes the juvenile court for failing to state the factual basis for finding detriment as the basis for terminating his parental rights. However, due process is satisfied if the decision to terminate parental rights is based on the court’s prior decision to terminate services, along with the finding that the child is likely to be adopted. (§ 366.26, subd. (c)(1); Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 249-250, 256.) Accordingly, no further factual basis is required at the section 366.26 hearing. We agree that at the 12-month review/permanency hearing, the court was required to state a factual basis for its finding that returning the children to father’s custody would be detrimental and that it did not do so. (§ 366.21, subd. (e).) However, a court’s failure to state the factual basis for an order removing a child from parental custody is harmless unless there is a reasonable probability that “such findings, if made, would have been in favor of continued parental custody.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137.) Here, no such reasonable probability exists, in light of the evidence, discussed above, that father failed to benefit from the services provided to him. Moreover, father’s failure to challenge the order terminating services and setting the section 366.26 hearing precludes any challenge to the basis of that order in the current appeal. (§ 366.26, subd. (l)(1).)
Father appears to believe that because he has couched his argument in terms of denial of due process, his failure to appeal or seek writ review from any prior order does not constitute a waiver of issues which could have been raised in such an appeal or writ proceeding. He contends, for example, that the court failed “throughout” the dependency proceedings to articulate a factual basis for finding detriment apart from father’s homelessness. Father is correct that under some circumstances, the waiver rule does not apply if due process forbids its application. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150, 1151-1152; In re S.D. (2002) 99 Cal.App.4th 1068, 1079-1083.) As we have discussed, however, his due process contention is based on the erroneous premises (1) that, as an alleged father, his due process rights are implicated in these proceeding and (2) that no finding of detriment was made by clear and convincing evidence. Because we have found no due process violation, father’s failure to raise these issues in timely appeals or writ proceedings precludes review at this juncture. (In re S.B., supra, 46 Cal.4th at pp. 531-532.)
We have, nevertheless, fully addressed his contentions.
THE COURT PROPERLY DENIED THE SECTION 388 PETITION
Section 388 permits “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court” to petition “for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court” on grounds of “change of circumstance or new evidence.” (§ 388, subd. (a).) “If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held....” (Id., subd. (d).) “[I]f the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. [Citation.]” (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450.) In order to avoid summary denial, the petitioner must make a prima facie showing of “facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593; accord, In re Marilyn H. (1993) 5 Cal.4th 295, 310.) “[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891.)
Father filed a section 388 petition, asking the court to change its order terminating services and setting the section 366.26 petition and instead order an additional six months of reunification services. He stated that he had “completed substance abuse treatment, parenting, [sic] and ha[d] obtained employment... [and was] currently looking for suitable housing for himself and his children, ” and that the requested change would be better for the children because he “visits consistently with his children, they have a strong bond with [him]... [and] [i]t would benefit them to reunify with [him].” The court found that he had made a prima facie showing and ordered a hearing on the petition.
On the date set for the hearing, father’s attorney made a brief argument in support of the petition. Mother’s attorney voiced mother’s support of the petition. The children’s attorney had no comment. County counsel made a brief argument in opposition, stating that the information in the petition did not reflect any change in father’s circumstances from the prior hearing, at which the court terminated father’s services. The court stated that it had reviewed the evidence presented at the prior hearing, including the psychological evaluation report which stated that father’s ability to be an effective parent was remote and not likely to change in the immediate future. The court stated that that was “one factor” it was considering. The court went on to state that according to its review of the reports in evidence at the prior hearing, the petition did not reflect a change in father’s circumstances, and that it could not conclude that “it’s in the best interest of the children... to grant the motion and reinstate services.” Rather, the court stated, the best interest of the children “would be moving on and providing the finality of a... good permanent home.” Accordingly, it denied the petition.
Father now contends that the court abused its discretion by denying the petition without a hearing. He appears to contend that in order to afford a hearing for purposes of section 388, the court must allow the petitioning parent to present evidence and to cross-examine adverse witnesses. However, father did not seek to present any evidence or to cross-examine the social worker or the psychologist as to any adverse evidence contained in the reports. In the absence of a request to present testimony or to cross-examine adverse witnesses, due process is not violated by a hearing which consists solely of documentary evidence and argument, nor does such a proceeding constitute a summary denial of the petition. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079-1081 [Fourth Dist., Div. Two].) In re Lesly G. (2008) 162 Cal.App.4th 904, on which father relies, is distinguishable. In that case, after having indicated on the Judicial Council form that it would hold a hearing, the court cut off any attempts to introduce evidence or argue the merits of the petition, saying that the petition “‘has been denied at this time.’” (Id. at pp. 910-911.)
In any event, it would not have been an abuse of discretion if the court had summarily denied the petition, because father failed to make the required prima facie showing. County counsel correctly argued, and the juvenile court correctly found, that the petition failed to show a change of circumstances, in that it alleged precisely the same circumstances which father conceded at the prior hearing, i.e., that although he had otherwise completed his case plan, he did not yet have suitable housing for himself and the children. As of the hearing on the section 388 petition, he was still looking for suitable housing. Furthermore, the petition did not allege any facts which showed how granting the petition would promote the best interests of the children; it merely stated that he and the children have a strong bond and that it would benefit them to reunify with him. This conclusory statement is not sufficient to constitute the prima facie showing required by section 388. (In re Edward H., supra, 43 Cal.App.4th at p. 593.) Rather, a prima facie showing requires facts which would sustain a favorable decision if the evidence were credited by the trier of fact. (In re Josiah S. (2002) 102 Cal.App.4th 403, 418-419.)
Father appears to contend that the trial court was compelled to consider the factors posited in In re Kimberly F. (1997) 56 Cal.App.4th 519 as those essential to a determination of the child’s best interests in the context of a section 388 petition. However, the court need examine those factors only if the parent has made a prima facie showing, as required by section 388.
THE COURT DID NOT ABUSE ITS DISCRETION BY FINDING THAT THE BENEFICIAL RELATIONSHIP EXCEPTION DOES NOT APPLY
Once the juvenile court has terminated reunification services, adoption becomes the presumptive plan for the child. “Whenever the court finds ‘that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.’ (§ 366.26, subd. (c)(1).) The circumstance that the court has terminated reunification services provides ‘a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more’ of specified circumstances. (Ibid.) The Legislature has thus determined that, where possible, adoption is the first choice. ‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ [Citation.] ‘Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Accordingly, if a child is adoptable, a juvenile court must order adoption unless the juvenile court finds, because of exceptional circumstances, one of the exceptions provided for in section 366.26, subdivision (c)(1) applies. (In re Celine R., supra, at p. 53.) Because the statutory presumption favors adoption, the burden rests with the parent to prove that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
One of the statutory exceptions is the so-called “beneficial parent-child relationship” exception. That exception provides that the court may decline to terminate parental rights if it finds a compelling reason for determining that termination would be detrimental to the child and the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Benefit to the child, under this exception, means that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile court “balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (Ibid.) “If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.)
Father asserted that exception at the section 366.26 hearing. The court found that none of the exceptions applies. Father now contends that substantial evidence supported a finding that the beneficial relationship exception applies and that, consequently, the juvenile court “should” have applied the exception.
The standard of review which applies to a ruling that one of the statutory exceptions does not apply is the subject of some dispute. Some courts have applied the traditional substantial evidence rule, i.e., whether, when viewed in the light most favorable to the judgment, there is substantial evidence which supports the juvenile court’s ruling. (See, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 575 [finding that “no exceptional circumstance exists” to justify application of the exception is challenged under substantial evidence rule].) Others have applied an abuse of discretion standard. (E.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Departing from either approach, the court in In re I. W. (2009) 180 Cal.App.4th 1517 concluded that because the burden is on the parent to demonstrate the existence of facts which support application of one of the exceptions, a ruling that the exception does not apply is, in effect, a finding that the parent failed to carry his or her burden of proof. (Id. at p. 1527.) The court rejected an argument that the substantial evidence rule applies: “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, 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.’ [Citation.]” (Id. at p. 1528, italics added.) The substantial evidence test, in contrast, is implicated when the party which did not bear the burden of proof contends that the party which did bear the burden of proof succeeded at trial in spite of insufficient evidence. (Ibid.)
Although we acknowledge that In re I.W., supra, 180 Cal.App.4th 1517 correctly states and explains the standard of review of issues which turn on the appellant’s failure of proof below, we nevertheless believe that, as expressed by the court in In re Jasmine D., supra, 78 Cal.App.4th 1339, a ruling that one of the statutory exceptions is inapplicable is best understood as an exercise of discretion. Section 366.26, subdivision (c)(1) requires the juvenile court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child....” That is, as the Jasmine D. court put it, “a quintessentially discretionary determination.” (In re Jasmine D., supra, at p. 1351.) Review of a determination that the exception does or does not apply “involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis.... [Accordingly, ] [b]road deference must be shown to the trial judge. The reviewing court should interfere only ‘“if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Of course, as the courts in both In re Jasmine D. and In re Robert L. pointed out, in evaluating the factual basis for an exercise of discretion, the reviewing court applies the substantial evidence rule. (In re Robert L., supra, 21 Cal.App.4th at p. 1067; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) And, because the trial court must find a compelling reason to decide against terminating parental rights, the rule stated in In re I.W., supra, also comes into play, in the sense that, assuming that the court applied the appropriate legal principles, it can be found to have abused its discretion only if the evidence presented in support of the exception is of “‘such a character and weight’” as to compel the court to find that exception applies. (See In re. I.W., supra, 180 Cal.App.4th at p. 1528.) But this is true in any fact-based exercise of judicial discretion: As long as the trial judge applied the correct legal principles, his or her exercise of discretion can be reversed on appeal only if no judge, considering the relevant evidence most favorably to the court’s action, could reasonably have made the order that he or she did. In contrast, if reasonable minds can differ as to the correct outcome, based on the same facts and legal principles, the trial court’s ruling must be upheld. (See In re Robert L., supra, 21 Cal.4th at p. 1067; see also Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) It is merely a recasting of that rule to say that the court’s exercise of discretion must be upheld unless the evidence, even when viewed most favorably to the ruling, required a different ruling.
Here, the evidence did not demonstrate any extraordinary circumstances which would compel that conclusion that adoption is not in the children’s best interest. Father did maintain consistent and positive contact with the children, but, as we have previously observed, he never moved beyond supervised visitation to a point at which he acted in a parental role toward them. Thus, even though father had a bond with the children and the children called him “dad” and were happy to see him and were affectionate with him, there is no evidence that they actually recognized him as a parental figure, as opposed to a pleasant visitor who read to them, played with them and brought them snacks. (In re Jason J., supra, 175 Cal.App.4th at p. 938.) “To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. [Citation.]” (In re I.W., supra, 180 Cal.App.4th at p. 1527.) In the absence of evidence that a true parent-child relationship actually exists, the exception does not apply. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Furthermore, there was no evidence that “severing the natural parent/child relationship would deprive the [children] of a substantial, positive emotional attachment such that the [children] would be greatly harmed....” (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) Father asserts that the children are bound to feel a loss if he is no longer part of the their lives, and points to an absence of any evidence which would support the conclusion that they would not suffer from the loss of their relationship with him. However, it was his burden to establish that the children would be greatly harmed by termination of his parental rights. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) It may reasonably be supposed that there is “some measure of benefit” in continued contact between a parent and child who have a positive bond and that the child will suffer some negative effects from its severance, but that is not sufficient to establish that the child would be greatly harmed by termination of parental rights. (In re Jason J., supra, 175 Cal.App.4th at p. 922; see also In re Brittany C. (1999) 76 Cal.App.4th 847, 853 [“to require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law”].) Father did not introduce any evidence, such as a bonding study or other evidence from a psychological expert, which showed that termination of parental rights would be detrimental to the children within the meaning of In re Autumn H., supra, 27 Cal.App.4th 567. In the absence of such evidence, the juvenile court did not abuse its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350-1351.)
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., MILLER J.