Opinion
E073064
11-04-2019
In re L.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1700507) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
J.A. (Father) and C.C. (Mother) have a history of abusing controlled substances and a history with child protective services that led the Riverside County Department of Public Social Services (DPSS) to remove their daughter, L.L., from their care and custody. Father challenges the juvenile court's order under Welfare and Institutions Code section 366.26 selecting adoption as the permanent plan for L.L. and terminating his parental rights, and the court's order denying his petition under section 388 seeking custody of L.L. and/or reunification services. Father contends (1) the juvenile court abused its discretion in denying his section 388 petition; and (2) the court erred in terminating his parental rights because there was substantial evidence to support application of the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). We find no error and affirm the judgment.
Mother is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background until reunification services were denied is taken from this court's prior nonpublished opinion in case No. E071396 unless otherwise noted. (J.A. v. Superior Court (Dec. 27, 2018, E071396) [nonpub. opn.].)
A. Prior Dependency
Mother and Father have an older child, J.H.A., who was removed from their care on June 15, 2017, and placed in a foster home. In that prior case, DPSS received a referral alleging general neglect. It was reported that Mother tested positive for barbiturates, amphetamine, and marijuana at the time of the baby's delivery. The baby also tested positive for amphetamine and marijuana at the time of delivery. Mother admitted to using controlled substances and stated that Father used as well. Mother and Father were both unemployed and received general relief and food stamps. Mother reported that there was a history of domestic violence between her and Father, that she and Father had extensive criminal histories, and that there was an active restraining order against each other. However, Father was at Mother's bedside at the time of the baby's delivery.
Upon investigation, Mother disclosed that she used methamphetamine two or three times a month, and marijuana three or four times throughout her pregnancy. She also stated that Father supplied her with the methamphetamine and that they used together. Mother further reported that Father used methamphetamine almost daily. Father denied using drugs with the exception of marijuana. Nonetheless, Father failed to complete an on-demand drug test and declined to drug test the following day on June 16, 2017. In addition, Father was unable to produce enough saliva to complete a saliva drug test on June 19, 2017. DPSS also discovered that there were two no-contact criminal restraining orders between Mother and Father and that they continued to violate the orders.
J.H.A. was formally removed from parental custody at the June 20, 2017 detention hearing. The contested jurisdictional/dispositional hearing was held on July 20, 2017. The juvenile court declared J.H.A. a dependent of the court. The parents were provided with reunification services and ordered to participate in their case plan. The parents' case plan included participation and completion of a substance abuse treatment program, a parenting program, individual counseling, anger management classes, and random drug testing. The six-month review hearing was set for January 22, 2018.
During the six-month reunification period, Father failed to enroll in any services and did not submit to any drug tests. Mother also failed to complete her services. The contested six-month review hearing was held on January 31, 2018. At that time, the juvenile court terminated reunification services as to both parents and set a section 366.26 hearing for May 31, 2018.
The section 366.26 hearing was continued to September 28, 2018, in order to complete the preliminary adoption assessment. A section 366.3 post permanency status review hearing was set for November 30, 2018. J.H.A. continues to remain a dependent of the juvenile court with the permanent plan of adoption.
Father also had a prior substantiated physical abuse allegation involving another child, D., in April 2006. In addition, Father had a prior general neglect allegation involving D.'s half brother, G., in February 2016. In that case, DPSS received a report that there was concern for G. as his whereabouts were unknown, and that G. had told his mother in 2013 that he had been molested by his half brother D. At the time, G. and D. resided with Father. Father refused to acknowledge that D. had molested G. According to the social worker, "This referral was evaluated out as they were unable to locate."
B. Current Dependency
On June 26, 2018, DPSS received an immediate response referral alleging general neglect of L.L. Mother tested positive for marijuana at L.L.'s birth, and Father had threatened to take the child before social workers and doctors could see or examine her. Domestic violence was suspected as Father came across as very controlling and would not allow Mother to speak with the social worker. Father refused to provide any information relating to him, and there were concerns about Father absconding with the child from the hospital.
Prior to visitation with L.L.'s sibling, Father had displayed noncompliant behaviors and an oral drug test was administered. Father tested positive for methamphetamine on June 22, 2018. After the results were shown to be positive, Father refused to go to an on-demand testing site.
The social worker interviewed Mother on June 26, 2018, at the hospital. In relevant part, Mother indicated that she lived in a sober living facility and had been in treatment since January 2018 and could not explain why she tested positive for marijuana. She denied being in a relationship with Father and repeatedly denied knowledge of who L.L.'s father was. Mother also denied any domestic violence in the home. She stated that she did not know why Father was at the hospital, and initially denied knowledge of Father's whereabouts or any contact information for him. Mother later was able to find Father's cellular number in her phone directory and provided that information to the social worker. She acknowledged that there was a no-contact protective restraining order, and explained that she was unable to complete her prior case plan because she was "'not mentally prepared.'"
On June 26, 2018, the social worker made an unannounced visit at Father's residence in Riverside. Father refused to speak with the social worker, because he believed the social worker and DPSS wanted to tear his family apart. Father indicated that the social worker was there to "twist[ ]" his words in order to take his daughter away. Father, however, noted that together he and Mother had been working on "strengthening their relationship." Father was adamant that all social workers had a personal vendetta against him and refused to provide any further information. The social worker was unable to provide a resource packet to Father, ask him to drug test, or obtain a signature for a parent letter "as he was persistent in speaking over [the social worker] and insistent that all social workers have ruined his family."
On June 27, 2018, the social worker spoke with Mother's stepsister who reported that she had concerns about Father. She had witnessed domestic violence between Mother and Father, and that Mother had attempted to get away from Father, but her pregnancy delayed her. Mother's stepsister was also aware of Father's substance abuse and had advised Mother to not have any contact with Father. Mother had resided with her stepsister in March 2017, but returned to Father in April or May 2017.
On June 29, 2018, the social worker called Father to inform him about the detention hearing. Father became frustrated, indicated he did not accept the notice, and stated that he would not attend the detention hearing. Father also stated that he would not submit to any drug tests and that he did not need to attend any domestic violence classes, parenting classes, or substance abuse classes.
On July 3, 2018, a petition was filed on behalf of L.L. pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).
On July 5, 2018, the juvenile court detained L.L. from parental custody and ordered Father to undergo paternity testing. The court ordered services for the parents pending the jurisdictional/dispositional hearing and supervised visits twice a week.
DPSS recommended that the allegations in the petition be found true and that reunification services be denied to the parents pursuant to section 361.5, subdivisions (b)(10) and (b)(13). Mother continued to have contact with Father, despite the active no-contact order that had been in effect since February 23, 2017, and was not set to expire until February 23, 2020. Mother also stated that she had planned on raising L.L. with Father together once they learned about her pregnancy. She admitted that they had failed to adhere to the no-contact order, but stated that for the past year, they had not had any domestic violence incidents. She attributed her failure to complete prior reunification services to "'major post-partum depression,'" and her positive drug test to being around people who smoked marijuana recreationally. Following the detention hearing, Mother enrolled in a substance abuse treatment program, but was later discharged from the program without completing it. She also failed to drug test as directed by DPSS.
Despite several attempts by the social worker, Father did not make himself available to DPSS to be interviewed. Father continued to assert that DPSS had abducted his child. He also stated that he would not submit to on-demand drug tests, but noted that he would bring hair follicle drug test results to the next court hearing and certificates of completion from the services he had completed.
Father missed several of his separately scheduled supervised visits with L.L. and was often late to the visits he did attend. Nonetheless, it was reported that Father had provided appropriate care and affection to L.L. during the visits. Father demonstrated an ability to comfort L.L., change her diaper, soothe her when she cried, and feed her. However, the parents were observed communicating with each other in violation of the no-contact order. Further, at the August 21, 2018 visit, Father was making statements that he was going to leave the visitation office with L.L. The visitation monitor informed Father that if he left with the child, she would have to contact law enforcement. Father responded that he should contact law enforcement as DPSS had "kidnapped his child."
Father failed to participate in the court-ordered paternity test three times. He eventually submitted to a paternity test. On September 18, 2018, Father's paternity test results established that he was L.L.'s biological father. In August 2018, the social worker again requested that Father complete an on-demand drug test. Father refused to do so avowing he would not complete any drug testing requested by DPSS.
The contested jurisdictional hearing was held on September 20, 2018. DPSS submitted the social worker's reports into evidence, as well as Father's saliva drug test results from June 22, 2018. Father testified that he had completed a substance abuse program with Sovereign Health on June 13, 2018, and had been drug tested randomly two or three times a month. He explained that he had enrolled in the three-phase substance abuse program at Sovereign Health on March 13, 2018, completing the 30-day inpatient phase on April 13, 2018, and a 30-day outpatient phase on May 13, 2018. During this time, Father asserted that he had drug tested regularly, two to three times a month, with negative results. He submitted evidence of drug test results from March 28, April 10, April 23, May 8, May 22, June 1, and June 11, 2018. DPSS's and minor's counsels objected to the admission of the drug tests because there was no identifying information that specified Father actually tested or whether the tests were negative. Over counsels' objections, the juvenile court admitted the results into evidence.
These drug test results are not in the record on appeal.
Father further testified that he had learned the triggers and process of addiction and that he had no triggers. He denied using drugs, except marijuana, and reported he last used marijuana in February 2018. Father acknowledged that he had arrests in 2016 and 2017, and a conviction for possession of controlled substances in 2017. The court took judicial notice of Father's 2017 conviction for possession of methamphetamine.
The social worker testified that she had called Sovereign Health but was informed the program no longer existed and was no longer in service. The social worker was unable to verify the validity of the certificates of completion and drug tests because all of the company's locations had been shut down within the past year. The social worker also could not obtain any information about the individual who signed Father's certificates. The social worker acknowledged that it was not until September 17, 2018, that she had requested Father's June 22, 2018 drug test result from the initial social worker, and that Father's June 22, 2018 drug test result was negative.
Following argument, the juvenile court found true the allegations in the petition as amended. In addition, the court specifically stated that the testimony of Father "lacks credibility." The contested dispositional hearing was continued.
The contested dispositional hearing was held on September 26, 2018. Father filed certificates of completion from Sovereign Health, dated June 13, 2018, in family resolutions, stress management, anger management, and domestic resolutions. The parties stipulated that the court could consider Father's testimony from the jurisdictional hearing for purposes of the dispositional hearing. The court again took judicial notice of Father's 2017 conviction for possession of methamphetamine and the court's previous finding that Father's testimony lacked credibility. After argument, the juvenile court declared L.L. a dependent of the court, denied reunification services to both parents pursuant to section 361.5, and set a section 366.26 hearing. The court found by clear and convincing evidence that section 361.5, subdivisions (b)(10) and (b)(13), applied to both parents and that reunification services were not in L.L.'s best interest.
On October 2, 2018, Father filed a timely notice of intent to file writ petition.
On December 27, 2018, this court denied Father's writ petition.
Meanwhile, Father continued to visit L.L. The court ordered supervised visits between Father and L.L. a minimum of twice a month at the dispositional hearing. Father had eight visits with L.L. between August and December 2018. The visits were described as appropriate with no concerns. Father fed L.L. when she was hungry, comforted her when she cried, and changed her diaper when appropriate. The social worker, however, noted that Father "did not develop a bond with [L.L.] during" the reporting period.
Both the maternal grandmother, who resided in Texas, and L.L.'s caregivers were interested in adopting L.L. The maternal grandmother was initially identified as the prospective adoptive parent and an Interstate Compact on the Placement of Children (ICPC) with Texas was initiated. The ICPC for placement of L.L. with the maternal grandmother was denied on December 19, 2018, due to the maternal grandmother's failure to respond. On January 10, 2019, a packet was resubmitted to the Texas ICPC liaison for an assessment of the maternal grandmother's home.
On January 24, 2019, the juvenile court ordered that L.L. was not to be removed from her current foster home and L.L. could not have out-of-state visits without further order. The court also ordered that the maternal grandmother could visit L.L. while she was in California and reduced the parents' visits with L.L. to a minimum of once a month. On this same day, the court granted L.L.'s foster parents' request for de facto parent status.
On February 13, 2019, the social worker conducted a phone interview with the maternal grandmother. Due to concerns identified during the interview, the social worker determined that the best placement for L.L. was with her foster parents. The foster parents were meeting L.L.'s developmental, emotional, and financial needs, and L.L. was developing a bond with the foster family. L.L. was described as a joyful, charismatic, and happy baby who constantly smiled at everyone. She was developing a stable routine with her foster parents who were very patient and loving towards L.L. The foster parents also made efforts to keep L.L. and her sibling, J.H.A., connected with regular visits including overnight visits. The foster parents were fully committed to adopting L.L. and providing her with a loving, permanent home. L.L. had been placed with the foster parents since July 5, 2018.
On May 22, 2019, Father filed a section 388 petition requesting reunification services or family maintenance services with an authorization to liberalize visits. As to changed circumstances, Father claimed that he had completed a substance abuse program, parenting classes, a domestic violence program, and an anger management program. He asserted that he had suitable housing, obtained stable employment, and had the financial ability to support his child. In regard to the best interest of the child, Father noted that he had benefitted from his programs and had obtained employment and suitable housing. He described his visits with L.L. as noted by the social worker and argued that by granting services, his child-parent bond would be strengthened. In support, Father attached letters from his program provider, R.A.Y. Institute Inc. (RAY). The section 388 petition was set for a hearing.
On May 29, 2019, the section 388 hearing was held at the same time as the section 366.26 hearing. At that time, the juvenile court heard testimony from Father and Father's adult son, D. Father testified that he enrolled in a year long substance abuse program at RAY after services were denied to him. He attended the program twice a week and submitted to random drug tests, all of which had been negative. He stated that he had been sober for over two years and that he attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. Father also asserted that he had completed 34 parenting classes and was enrolled in an anger management class. He was enrolled in a year long domestic violence program at RAY and had attended 34 classes out of 52. Father further testified that he believed he had benefitted from his services and that he had suitable housing living with his brother. He stated that he was employed working with his brother at his brother's carpet company. He noted that he visited L.L. twice a month and had raised his 19-year-old son, D. He explained that L.L. recognized him and reached out to him during visits and that he brought clothes, toys, or food for her to each visit.
D. testified Father supported him throughout his life and that he attended approximately six or seven visits with Father. L.L. appeared happy at visits. D. loved L.L. and believed he (D.) had a bond with her.
Following argument, the juvenile court denied Father's section 388 petition, finding Father's circumstances had not changed sufficiently enough to change the current order and that it was not in L.L.'s best interest to grant the section 388 petition. The court noted L.L. had only known her foster parents' home and was bonded to them. Thereafter, the court found L.L. to be adoptable and that none of the exceptions to the termination of parental rights applied and terminated parental rights.
On June 20, 2019, Father filed a timely notice of appeal.
III
DISCUSSION
A. Denial of Section 388 Petition
Father argues the juvenile court abused its discretion when it denied his section 388 petition. We disagree.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["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 . . . ."].) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) We review the juvenile court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Father contends the juvenile court abused its discretion in denying his petition, because he had established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of L.L. Father alleged his changed circumstances consisted of refraining from domestic violence for two years, remaining sober for 15 months, completing a three-month drug program, enrolling in a second drug treatment program, testing negative for drugs, regularly attending NA meetings, completing a parenting program and an anger management program, obtaining housing and employment, and effectively caring for L.L. Although we commend Father for the changes he has made, we need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances, because Father failed to make a prima facie showing that granting the section 388 petition and providing Father with reunification service or returning L.L. to Father's care on family maintenance was in L.L.'s best interest.
Parent and child share a fundamental interest in reuniting up until reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the time of the section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) After reunification efforts have terminated or have been bypassed, as in this case, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been terminated or bypassed. This is because, "[a]fter the termination [or bypass] of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
At the time Father filed his section 388 petition, approximately eight months after services were bypassed, L.L.'s interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of returning L.L. to Father's care on family maintenance or granting Father reunification services to see if Father would and could do what he was required to do to regain custody would not have promoted stability for L.L., and thus would not have promoted L.L.'s best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) Father attached no evidence to his petition showing the requested change would be in the L.L.'s best interest. L.L. was a newborn when she was removed from Father's care in June 2018. By the time of the hearing on the petition on May 29, 2019, L.L. had been out of Father's care for approximately one year. L.L. had never resided in Father's care and her only contact with him throughout her life was during supervised visitation. On the other hand, while Father was combating his substance abuse issues, L.L. had been in her prospective adoptive home most of her young life and was bonded to her prospective adoptive parents, their son, and extended family. L.L. was thriving in her prospective adoptive home and the prospective adoptive parents were committed to adopting L.L. and providing her with stability and permanence. In addition, L.L.'s prospective adoptive parents had developed a friendship with L.L.'s sibling's prospective adoptive parents and would continue to support sibling contact after adoption.
Returning L.L. to Father's care on family maintenance or providing Father with reunification services would not have promoted L.L.'s best interest. Rather, it would have only delayed L.L.'s adoption in a stable and loving home. The juvenile court reasonably concluded that, under such circumstances and in light of Father's history with DPSS and of abusing drugs, Father had not made a prima facie showing that returning L.L. in Father's care on family maintenance or providing Father with reunification services would promote stability for L.L. and be in her best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.)
In Angel B., supra, 97 Cal.App.4th 454, the court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.) The mother in Angel B. did not make such a showing. Nor did Father here.
Father argues that the prospective adoptive home was not stable or permanent because L.L. was possibly going to be moved out of state to a relative's home. However, this assertion is not supported by the evidence in the record. According to the record, while both the maternal grandmother, who lived out of state, and L.L.'s foster parents were interested in adopting L.L., it was ultimately determined that the foster parents would adopt L.L. and a preliminary adoption assessment was conducted of the foster parents.
Father's section 388 petition asserted that he believed granting his section 388 petition was in L.L.'s best interest because he had benefitted from his programs, obtained employment and suitable housing, maintained regular contact with L.L., and attended to L.L.'s needs with no noted concerns. Other than the statements Father visited L.L. regularly and attended to L.L.'s needs, Father's allegations are conclusory, not a factual showing that granting reunification or family maintenance services would promote L.L.'s best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348, 1349 ["allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing"].) Father's petition offered no evidence of the nature of his bond with L.L. or that L.L. showed a desire to live with Father. (See Angel B., supra, 97 Cal.App.4th at p. 465 [the mother's petition, denied without a hearing, stated that she had bonded with the child, who was happy to see her and reached for her on their visits].) We conclude Father failed to make a prima facie showing that L.L.'s best interest would be served by placing her with Father on family maintenance services or providing Father with reunification services.
Based on the foregoing, the juvenile court did not abuse its discretion in denying Father's section 388 petition.
B. Beneficial Parental Relationship Exception
Father also contends that the juvenile court erred in terminating his parental rights because there was substantial evidence to support application of the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A).
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "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." (§ 366.26, subd. (c)(1)(B)(i).)
"When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.' [Citation.]" (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235 (B.D.).)
"'[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' [Citation.]" (In re Jason J. (2009) 175 Cal.App.4th 922, 938 (Jason J.).) "'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' [Citation.]" (Id. at p. 937, italics omitted.) "The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.)
In determining the applicability of the parental relationship exception, the court considers "'"[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs."'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) "A showing the child derives some benefit from the relationship is not sufficient ground to depart from the statutory preference for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).) Furthermore, evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (Ibid.) The parent must also show he or she occupies a parental role in the child's life. (Ibid.) "The relationship that gives rise to this exception to the statutory preference for adoption 'characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621.)
Our review of the juvenile court's ruling is deferential, incorporating both the substantial evidence and abuse of discretion standards. We generally review the juvenile court's finding as to the existence of a beneficial parental relationship for substantial evidence. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) But where the juvenile court found the parent failed to carry his or her burden of proof, the question is more properly stated not in terms of substantial evidence, but rather "whether the [appellant parent's] evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) We apply the abuse of discretion standard to the juvenile court's determination of whether termination of the parental relationship would be detrimental to the child as weighed against the benefits of adoption. (Anthony B., at p. 395.) We will not reverse the juvenile court's order as an abuse of discretion unless the court made an arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
We note that this "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301 (S.B.)), this is not such a case.
The record amply shows Father failed to establish that he occupied a parental role in L.L.'s life. L.L. was removed from Father's care at birth. For the most part, Father regularly visited L.L. and attended to her needs during supervised visitations. But evidence of frequent and loving contact is not enough to establish that Father occupied a parental role in L.L.'s life. (See Breanna S., supra, 8 Cal.App.5th at p. 646.) The juvenile court could reasonably conclude that the parental role was occupied by L.L.'s day-to-day caretakers and prospective adoptive parents.
Furthermore, even if Father had demonstrated the existence of a beneficial parental relationship, the juvenile court did not abuse its discretion by determining that the benefit of L.L.'s relationship with Father was outweighed by the benefits of adoption. Although Father's interaction with L.L. during visitation was positive, there is little if anything in the record to support the conclusion that L.L. would be harmed, much less "greatly harmed," by termination of parental rights. (B.D., supra, 159 Cal.App.4th at p. 1235.) The record shows L.L.'s primary attachment was with her prospective adoptive parents. The prospective adoptive parents had demonstrated that they were ready, willing, and able to provide L.L. with a safe, stable, and loving home, and had already done so for approximately a year. L.L.'s prospective adoptive parents were meeting L.L.'s daily emotional, physical, and developmental needs. By contrast, Father was, at best, little more than an uncle or a "'friendly visitor.'" (Jason J., supra, 175 Cal.App.4th at p. 938.) The record demonstrates that it was in L.L.'s best interest to be adopted by the prospective adoptive parents. Father simply did not meet his burden of showing that the bond between him and L.L. was so strong and beneficial to L.L. that it outweighed the benefit L.L. would receive from having a stable, adoptive home.
Father's reliance on S.B., supra, 164 Cal.App.4th 289 is unhelpful. There, the sole issue was whether the father occupied a parental role in his daughter's life. In concluding that he did, the appellate court relied on circumstances that simply are not present in this case. Unlike Father here, the father in S.B. was his daughter's primary caregiver for three years, which was well over half of her life. (Id. at pp. 293, 298.) In addition, a bonding study revealed a "'fairly strong'" bond between the father and his daughter—one that was reflected during visits when she would nestle into his neck and whisper that she loved him and missed him and wanted to live with him. (Id. at pp. 295, 298.) Finally, the father had complied with "'every aspect'" of his case plan, "immediately" obtaining and maintaining sobriety and seeking medical and psychological services as soon as his daughter was removed from his care. (Id. at p. 298.) Here, not only was L.L. too young to express her opinion about where she wanted to live, but, more importantly, L.L. had never resided with Father and Father was never L.L.'s primary caregiver. In addition, unlike S.B., the evidence in the record does not show that Father and L.L had an emotionally significant relationship. Furthermore, Father's efforts to resolve the issues that led to the dependency fall drastically short of the father's in S.B. Therefore, we disagree with Father that the facts in S.B. are analogous to this case.
Father also relies on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) and In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.) to support his position that L.L. would benefit from a continued parent-child relationship with him. Neither case aids Father's argument because Father has only had supervised visits with L.L.
Although the Amber M. court concluded the juvenile court erred by declining to apply the beneficial relationship exception, the evidence there was markedly different from the facts of this case. In Amber M., supra, 103 Cal.App.4th 681, all three children spent a significant time with the mother prior to removal, including the oldest having spent her first five years in the mother's care. (Id. at p. 689.) Moreover, in Amber M., the child advocate, bonding psychologist, and one of the children's individual therapists opined the mother had a strong bond with the children, and the court noted that "[t]he common theme running through the evidence from the bonding study psychologist, the therapists, and the [child advocate] is a beneficial parental relationship that clearly outweighs the benefit of adoption," while also noting "[t]he social worker, the only dissenting voice among the experts, provided no more than a perfunctory evaluation of Mother's relationship to the children." (Id. at p. 690.) Finally, in Amber M., the children were able to verbalize that they missed their mother, and at least one of the children had a difficult time parting with the mother at the end of visits. (Id. at pp. 689-690.) Contrary to Father's claim, the evidence here is markedly different. L.L. was removed from Father's custody at birth, she had no distress transitioning from visitation, she had lived most of her young life with her prospective adoptive parents, and she could not verbalize her wishes. We conclude Amber M. is factually distinguishable.
Father also compares this case to Brandon C., supra, 71 Cal.App.4th 1530, an appeal by a child welfare agency from a juvenile court's decision to apply the beneficial parent-child relationship exception and order legal guardianship. In Brandon C., the appellate court affirmed the juvenile court's order selecting guardianship with the paternal grandmother as the permanent plan for twin boys, rather than adoption, after finding the parent-child relationship exception to termination of parental rights applied. Noting the governing legal standard, the appellate court stated, "Courts have required more than just 'frequent and loving contact' to establish the requisite benefit for this exception." (Id. at pp. 1533-1534.) Evaluating conflicting evidence under the substantial evidence standard of review, the court concluded it was sufficient to support the juvenile court's decision to order guardianship. (Id. at p. 1538.) That analysis, of course, which properly deferred to the juvenile court's assessment of the nature of the interaction between parent and child, fails to demonstrate the court in this case was compelled to find Father's relationship with L.L., while loving and, perhaps, frequent, was parental in nature. The juvenile court's decision in Brandon C., affirming the application of the exception, does not support the juvenile court's contrary decision here, which is based on different facts. Furthermore, Brandon C. is factually distinguishable because in that case the caregiver (the paternal grandmother) was elderly, had multiple health problems, and told the court she "did not think it would be in the boys' best interest to terminate their relationship with mother and father." (Brandon C., at p. 1533.) There is no indication here that L.L.'s prospective adoptive parents have any similar barriers to caring for L.L.
Father has failed to show that the juvenile court erred by terminating his parental rights and not applying the beneficial parent-child relationship exception to adoption.
IV
DISPOSITION
The juvenile court's order denying Father's section 388 petition and order terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.