Opinion
H047288
04-17-2020
In re J.S., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17JD024621)
R.S. (father) appeals from the juvenile court's order terminating his parental rights under Welfare and Institutions Code section 366.26. Father argues the juvenile court erred when it found the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) inapplicable. We conclude that the juvenile court did not abuse its discretion and affirm the order terminating parental rights.
Unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The Dependency Petition
On July 12, 2017, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under section 300, subdivision (b)(1) (failure to protect) and (c) (serious emotional damage) alleging that J.S. (daughter, born 2015) came within the juvenile court's jurisdiction. According to the petition, on July 10, 2017, father appeared mentally unstable and unable to care for daughter during a scheduled family court hearing. Father was seen pacing in the courtroom, speaking in an incoherent manner. He also appeared highly agitated. Father, a combat veteran, had been previously diagnosed with depression and posttraumatic stress disorder (PTSD), and had "past suicidal ideation." Father, however, had not received mental health treatment in the last five years.
The petition also alleged that K.D. (mother) had restricted custodial rights over daughter because of concerns over her domestic violence and substance abuse problems. Mother had previously lost physical custody of two of her other children due to neglect and their exposure to domestic violence. Mother had a history of alcohol abuse and had three prior convictions for driving under the influence. In 2014, mother completed an inpatient substance abuse treatment program, but mother continued to abuse alcohol and admitted that she relapsed and drank alcohol on May 20, 2017.
Father and mother are not married. On July 13, 2017, the juvenile court found father to be daughter's presumed father.
Since 2012, mother and father frequently engaged in domestic violence toward each other, which occasionally required police intervention. In 2016, mother was convicted of a domestic violence charge against father. Mother had a history of hitting father, brandishing and swinging knives at him, and once held a gun to him. Mother also had a pending criminal matter for attempting to hit father with her car. In 2013, father was convicted of a domestic violence charge against mother. Father had a history of choking mother, punching her, threatening her, and slashing walls to scare her.
2. The Initial Hearing Report and The Detention Hearing
The day after the dependency petition was filed, the Department filed an initial hearing report recommending that daughter remain detained. The social worker interviewed father, who said he was an Iraqi war veteran who had spent 30 months in combat. Father explained that he had stopped counseling in 2012 because he found it difficult to talk about his wartime experiences. Father, however, said that he had recently sought professional treatment and had an upcoming psychiatric appointment. Father stated that mother frequently attacked him but denied that he ever hit or threatened mother in any way. Father could not recall why he was convicted of a domestic violence charge in 2013. He admitted that he used marijuana once every two months but claimed he did so because mother encouraged him to use it with her.
The social worker also interviewed mother. Mother denied ever hitting or harming father. She acknowledged she had a pending domestic violence charge but said that she was contesting it. Mother admitted she drank alcohol the day that she was arrested for the pending domestic violence charge.
At the detention hearing, daughter was ordered detained and temporarily removed from mother's and father's physical custody. Supervised visits were ordered for both parents.
3. The Jurisdictional Hearing and Order for Family Reunification Services
On August 2, 2017, the Department filed an amended section 300 petition. The allegations in the petition were largely the same as the allegations in the original section 300 petition, with the addition of allegations that mother suffered from anxiety, had been diagnosed with a panic disorder, and had been placed on section 5150 holds in 2006 and 2016.
On August 28, 2017, the Department filed an addendum report and a jurisdiction report recommending that the juvenile court sustain the amended section 300 petition and offer the parents reunification services. The jurisdiction report contained additional details about acts of domestic violence that occurred between mother and father, some of which took place while daughter was nearby.
In 2015, father reported that mother drank and became aggressive with him in their car in daughter's presence. After the family returned home, father placed daughter in her crib, and mother, who was agitated, took a rock and shattered a sliding glass door. Father said that the glass from the door just missed landing on daughter, who was sleeping nearby. Mother admitted that she broke the glass door, but she claimed that nobody was home at the time.
In 2017, father reported that he got into an argument with mother, who was intoxicated. Mother asked father where he had been, got angry, backed her car into the property fence, and attempted to hit father with her car. Father went into the house, and mother followed. Afterwards, an altercation occurred between mother and father, and father said that mother physically hit him. Mother told officers that she did not see father when she backed up her car, and she denied hitting father. During a later interview, mother said that father had yelled at her, and in response, she had pressed her keys against his arm and had attempted to flee from him in her car. She again denied that she tried to hit father with her car. The officers that responded to the incident did not find any damage to the outside fence.
According to the jurisdiction report, both parents consistently visited daughter, and it was clear that daughter had a close relationship with them. Daughter screamed with excitement when she saw her parents during visits, and the parents engaged in age-appropriate activities with her. The maternal grandparents, who had also visited daughter, requested that child be placed with them.
In a second addendum report that was also filed on August 28, 2017, the social worker described that the parents and maternal grandparents continued to regularly visit daughter, and the visits had gone well. Daughter had some trouble separating from her parents, and it was difficult to get her into her car seat after visits. Daughter's foster parents reported that they would be unable to care for daughter starting August 31, 2017, but the maternal grandparents were close to being approved as a placement.
On August 28, 2017, the juvenile court held a jurisdictional hearing, sustained the amended petition, and found the allegations set forth in the petition to be true. Reunification services were ordered for both parents. Father was directed to complete a parent orientation class, a 16-week parenting without violence class, a program of counseling or psychotherapy addressing domestic violence, PTSD, and depression, a psychological evaluation, a domestic violence assessment, and on-demand testing. Daughter was placed with the maternal grandparents, and supervised visits were ordered for both parents.
4. Initial Progress with the Case Plan
On January 31, 2018, the Department filed a status review report recommending that family reunification services be continued for both parents. Daughter remained in the maternal grandparents' care. Father had not completed the parenting without violence class because of a health condition, and he was receiving therapeutic services through the Veteran's Administration. Father tested positive for marijuana on January 11, 2018. Both parents consistently visited daughter, and daughter cried when the parents said their goodbyes. Under a new visitation plan, the parents were able to give daughter baths, feed her, and put her to bed before leaving. Father said he wanted to move into the maternal grandparents' home to take care of daughter because he did not have housing. The social worker described father as "very controlling" and that he felt he was "entitled to services." The social worker concluded that father had made only minimal progress in alleviating his mental health problems, and he tended to exhibit "a high level of emotion."
Father had participated in a court-ordered psychological evaluation and was determined to suffer from PTSD and depression. According to the evaluator, the parents' relationship was volatile and the family had a history of violence. The evaluator recommended that father have an assessment through the Veteran's Administration.
At the six-month review hearing, the trial court ordered reunification services be continued for both parents.
5. Temporary Removal From Maternal Grandparents' Home
On March 29, 2018, the Department prepared a supplemental dependency petition under section 387 seeking a more restrictive placement for daughter. According to the petition, the Department had placed daughter into protective custody after discovering that the maternal grandparents had violated the juvenile court's supervised visitation order. The maternal grandparents had permitted the parents to spend the night at their home on the parents' respective visitation days, and on February 17, 2018, the maternal grandparents had allowed the parents to go on a week-long out-of-county vacation with daughter. The parents, however, were not authorized to have unsupervised visits with daughter, and the Department never authorized overnight visits with the parents.
That same day, the juvenile court found that the Department had made a prima facie showing that placement with the maternal grandparents was no longer appropriate and placed daughter in protective custody.
On May 10, 2018, the Department filed an interim review report. According to the report, both parents continued to have supervised visits with daughter. Daughter was doing well in her new foster home and was presently enrolled in daycare. Father had started a parenting without violence class and had completed his first class on March 27, 2018. Father was enrolled in counseling through the Veteran Affairs program but was in the process of switching to another therapist who was licensed to provide therapy. Father missed calling for substance abuse and alcohol testing on several occasions. Father was referred to substance abuse treatment services, but he could not be assessed because he had private insurance. Father also told the assessor that he had no drug or alcohol issues, and he believed the Department had unnecessarily referred him for the program.
Father had completed a domestic violence assessment, and the assessment concluded that it was clear that there was violence in mother and father's relationship. Father, however, adamantly denied being violent with mother and minimized any emotional abuse that may have occurred. Father acknowledged he was on disability due to his "PTSD, Traumatic Brain injury and Depression," but he had not followed through with consistent care since his military discharge in 2012. Father also refused medication. The assessor recommended that father complete an "Eye Movement Desensitization Reprocessing" to treat his PTSD, complete a 52-week gender-based treatment, and engage in a batterer's intervention program. The assessor found that father acknowledged that daughter had been impacted by her exposure to violence, but he was "unable to articulate the impact."
The Department filed a section 387 jurisdiction report that was dated April 19, 2018. In the report, the social worker opined that the maternal grandparents lacked insight and minimized the risk the parents posed to daughter by failing to set boundaries and permitting unsupervised visits with the parents. The social worker concluded that it would be in daughter's best interest not to be in their care.
On July 16, 2018, the Department filed a disposition report dated June 25, 2018. In the disposition report, the social worker reversed her earlier recommendation and recommended that daughter return to the maternal grandparents' care. The maternal grandparents had made efforts to identify the reasons for daughter's removal and had gained insight on how to protect daughter. The maternal grandparents had attended weekly family therapy since April 13, 2018. According to their therapist, they had gained an increased understanding of how to establish clear and healthy boundaries with mother, father, and daughter.
In an addendum report, the Department summarized that a safety plan had been developed by the maternal grandparents, and the safety plan was approved by everyone who attended daughter's family team meeting. Daughter had since been returned to the maternal grandparents' care, and upon her return, the maternal grandparents reported that daughter was " ' very happy' " and acted like she had never left.
6. Events Leading To The Section 366 .26 Hearing
On October 1, 2018, the Department filed a status review report that recommended terminating reunification services to both parents and setting a section 366.26 hearing. Father had attended 15 out of 16 parenting classes but " 'did not take any responsibility for [the] referral' " and had a hard time applying the class to his own situation. Father had missed substance abuse testing on numerous occasions, and when asked by the social worker why he missed the tests, father said that "substance abuse was never his issue." Father admitted he used marijuana but said he only used it occasionally for pain. Father had not completed a substance abuse assessment and explained that he felt that the Department had unnecessarily referred him for the program. He had completed a domestic violence assessment, and the social worker had referred him for a 52-week batterer intervention program. Father regularly visited with daughter. He had missed a few visits, but some of the visits were cancelled because daughter was ill. The social worker opined that father had completed portions of his case plan but did not demonstrate insight into what brought daughter within the juvenile court's jurisdiction.
The social worker also opined that the maternal grandmother was "blinded with love" for mother, and the maternal grandfather was willing to do anything for the maternal grandmother. As a result, the maternal grandparents enabled mother's "destructive behavior." However, the maternal grandparents reported that they were working on setting boundaries with mother.
The social worker concluded that it would be detrimental to return daughter to her parents' care because they had not resolved the issues that brought her within the juvenile court's jurisdiction.
On October 1, 2018, the juvenile court held a 12-month review hearing and continued reunification services for an additional six months.
Subsequently, the Department filed another status review report on January 10, 2019. The report indicated that father had not yet enrolled in counseling or psychotherapy. Father had also failed to regularly call for drug testing, had tested "dilute" twice, and had tested positive for marijuana once.
At the initial assessment for the 52-week batterer's intervention program, father stated that he believed the referral was a " 'vindictive act' " from the social worker, the social worker was trying to " 'kidnap his children and traffic them to India,' " and she " 'did the same thing with another [sic] cases.' " The program coordinator reported that she did not believe the program was "equipped to meet [father's] mental health issues." Earlier, father's domestic violence assessment recommended that father first complete treatment and, once his therapist concluded that he could benefit from a " 'group process,' " then complete a 52-week batterer's intervention program. Father, however, had not yet enrolled in therapy.
The status review report described a recent visit between father and daughter. At the end of the visit, daughter had a hard time separating from father. The social worker told father to leave first, but father picked daughter up and started to carry her to the maternal grandfather's car. The social worker told father that it would be best if the social worker walked daughter to the maternal grandfather's car. Father raised his voice and used a threatening tone with the social worker before leaving.
The social worker believed that the parents did not demonstrate insight into their actions and did not demonstrate a willingness to complete their case plans. Since daughter needed stability and permanency in her life, the social worker recommended terminating reunification services to both parents.
On January 10, 2019, the juvenile court found that returning daughter to her parents would create a substantial risk of detriment to daughter's safety, protection, or physical or emotional well-being. The juvenile court further determined that reasonable services had been provided to both parents. Thereafter, the juvenile court terminated reunification services to both parents and set a section 366.26 hearing.
7. The Section 366 .26 Report
On September 11, 2019, the Department filed a section 366.26 report recommending that the juvenile court terminate both parents' parental rights. Daughter, who had been diagnosed with PTSD, was still in her maternal grandparents' care. According to the report, the maternal grandparents were committed to raising daughter. Daughter had known the maternal grandparents since birth because her parents previously lived with them. She had been living with the maternal grandparents since August 29, 2017, though she was briefly removed from their care from March 26, 2018 to July 11, 2018. Daughter loved her grandparents and looked to them for her basic needs. In contrast, she considered her parents "visitor[s] or . . . good friend[s]." The maternal grandparents were capable of meeting daughter's needs, took her on vacations, and had enrolled her in classes like swimming and horse-riding lessons.
Father regularly visited daughter and brought toys and games for her. Father was always on time for visits, and he followed the supervising social worker's instructions to clean the room where visits took place and get ready to say goodbye to daughter. Occasionally, father and daughter had a hard time saying goodbye to each other.
After a recent visit between father and daughter, mother confronted father outside the visitation area in daughter's presence. Mother made disparaging and vulgar remarks to father.
According to an addendum report filed by the Department, father had recently married and was now bringing his wife, who had been cleared by the Department, to visit daughter. The social worker reported that father's wife was a "very positive" influence on him. Father was on time to his scheduled visits with daughter, and he read, played games, and watched videos with her during visits.
The social worker opined that father loved daughter, but he lacked insight. Daughter did not see her parents as an "important component" of her life but instead saw them as visitors. Daughter continued to rely on the maternal grandparents for her needs.
8. The Contested Section 366 .26 Hearing
a. Father's Testimony
Father was present when daughter was born and was her primary caregiver. Father remained daughter's primary caregiver until she was removed from his care in July 2017. Father always ensured that daughter had a clean place to live. Before she was removed from his care, he would take her to parks, read with her, and watch television shows with her. He would also sing her to sleep and play instruments for her.
After daughter was removed, father visited daughter regularly. Father held her and watched videos with her. He also brought her food and toys. Father tried to reassure daughter during visits, and daughter sometimes asked why she could not go home with him. Ending visits was always difficult, and there were times when the Department had to "peel[] [daughter's] fingers off of [him]." During the last visit that he had with daughter, daughter told father that she liked talking to him on the phone, but she needed "more than that." Daughter said she needed to "touch [father]" and needed father to "sing to [her]."
Father acknowledged that mother got into a confrontation with him after a recent visit with daughter. That day, daughter had asked father to stay with her until mother arrived for her visit. Father chose to stay because daughter asked him to.
b. Mother's Testimony
Mother described daughter as her best friend and the "best thing in [her] life." She had never seen anyone treat daughter as well as she and father had. Mother said that father only hurt her when he was defending himself from her, and she believed that if father had "done the stupid domestic violence class," daughter would have remained under his care.
c. Maternal Grandfather's Testimony
The maternal grandfather disputed father's claim that he was daughter's primary caregiver after her birth. The maternal grandfather explained that mother, father, and both maternal grandparents were "very much involved in taking . . . care of [daughter]." The parents lived with the maternal grandparents at their house after daughter was born, but the parents did not pay rent. In January or February 2017, the parents left daughter in the maternal grandparents' care for a period of two months. The parents occasionally visited during that time period. On another occasion, father left daughter in the maternal grandparents' care while he was out of state for a month. Before he left, father asked the maternal grandfather for money and initially said that he did not intend to return.
Both parents were not working when daughter was born. Eventually, mother got a job, and father stayed home to take care of daughter while mother was at work. Approximately a month later, mother left her job. Mother told the maternal grandparents that she left her job because father did not want to take care of daughter by himself and wanted mother to stay home to help.
Daughter called both parents twice a week. Sometimes daughter declined the opportunity to call her parents. Daughter also visited her parents twice a month. Daughter loved father and appeared happy when she saw him. The maternal grandfather described that daughter had a "great relationship with both parents." Daughter became sad after ending visits with mother but was back to normal by the time the maternal grandfather drove her back home. Daughter occasionally talked about her parents between visits and sometimes asked why she was not living with them.
The maternal grandfather believed daughter was doing well with the maternal grandparents and described her as sociable. The maternal grandfather also believed that the maternal grandparents and daughter had "melded" into a family. The maternal grandparents and daughter had been working with a therapist, who was helping daughter work through some behavioral issues.
d. Social Worker's Testimony
The social worker assigned to daughter's case had been involved with the family since October 2017. Since daughter was removed from father's care, she had been placed in therapy, and the maternal grandparents had been given resources to help them provide structure for daughter. As a result of the structure and therapy that daughter was currently receiving, some of her difficult behaviors had decreased.
e. The Juvenile Court's Ruling
After considering the evidence and the parties' arguments, the juvenile court determined that daughter was likely to be adopted. The juvenile court then determined that the beneficial parent-child exception to adoption did not apply.
First, the juvenile court concluded that the parents had maintained regular visitation with daughter. With respect to father, the juvenile court then found that although father and daughter had a "very strong bond" and there was no doubt that father and daughter loved each other, father no longer occupied a parental role in daughter's life. The juvenile court also determined that father had not met his burden to demonstrate that his relationship with daughter promoted her well-being to such a degree that it would outweigh the benefits of stability and permanency that would come with adoption. The juvenile court further opined that the recent conflict between mother and father that occurred after father visited daughter demonstrated that father was not always able to put daughter first. Rather than leave after his visit and avoid conflict with mother, father chose to stay with daughter, putting her in a position to witness some of the conflict between her parents.
Subsequently, the juvenile court terminated both parents' parental rights and freed daughter for adoption. Father appealed.
DISCUSSION
On appeal, father argues that the juvenile court erred when it terminated his parental rights. Father claims that the benefits stemming from his relationship with daughter outweighed the benefits of adoption.
1. Overview and Standard of Review
"By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) "[N]atural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "Adoption is the Legislature's first choice because it gives the child the best chance at such a commitment from a responsible caretaker." (Jasmine D., supra, at p. 1348.)
Section 366.26 sets forth the procedure for terminating parental rights. Under section 366.26, subdivision (c)(1), a prior order under section 361.5 terminating a parent's reunification services "shall constitute a sufficient basis for termination of parental rights." If the juvenile court also determines by clear and convincing evidence that it is "likely the child will be adopted," it "shall terminate parental rights and order the child placed for adoption" (§ 366.26, subd. (c)(1)) unless certain exceptions apply.
Father relies on the beneficial parent-child relationship exception described under section 366.26, subdivision (c)(1)(B)(i). Under section 366.26, subdivision (c)(1)(B)(i), the juvenile court shall not terminate parental rights if it finds a compelling reason that termination would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
"[T]he proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship, which is a factual issue." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Thus, we apply the substantial evidence standard of review to the juvenile court's determination of whether a beneficial parent-child relationship exists. (Ibid.) "The other component of . . . the parental relationship exception . . . is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.)" (Id. at p. 1315.) Whether a relationship is a " 'compelling reason' " for finding detriment is not a factual issue. It is a discretionary decision made by the juvenile court after it weighs "the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child . . . against the benefit to the child of adoption." (Bailey J., supra, at p. 1315.)
In his reply brief, father notes that there is a split of authority over the appropriate standard of review for an order determining the existence of the beneficial parent-child relationship. (Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying abuse of discretion standard]; In re G.B. (2014) 227 Cal.App.4th 1147, 1166 [applying substantial evidence standard]; Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315 [applying hybrid abuse of discretion and substantial evidence standard].) Father further notes that the California Supreme Court recently granted review in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. One of the issues the Supreme Court asked the parties to brief in Caden C. is what standard governs appellate review of the beneficial parent-child relationship exception to adoption.
Father argues that "the juvenile court failed to consider the split of authority [recognized in Caden C.] and that the issue is on review." However, the split of authority and the issue raised in Caden C. governs the standard of appellate review. There is no split of authority about what standard a juvenile court must apply when determining in the first instance whether a beneficial parent-child relationship exists. Moreover, until the Supreme Court resolves the split of authority on the appropriate standard of appellate review, we will adhere to the hybrid approach. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315; In re E.T. (2018) 31 Cal.App.5th 68, 76.)
2. Application to Father's Case
Father argues that the beneficial parent-child exception applies, and the juvenile court should have found that terminating his parental rights was detrimental to daughter's well-being. The Department disagrees and argues that the record supports the juvenile court's decision. As we explain, we agree with the Department.
" 'The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.' " (Bailey J., supra, 189 Cal.App.4th at p. 1315.) "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
In this case, the juvenile court concluded that father satisfied the first prong of the beneficial parent-child relationship exception by maintaining regular visitation. The juvenile court then concluded that although father and daughter had a loving bond, father no longer occupied a parental role in daughter's life. Thereafter, the juvenile court determined that the benefits of adoption were not outweighed by the benefits of maintaining a parental relationship with father.
First, we find that substantial evidence supports the juvenile court's determination that the second prong of the beneficial parent-child relationship exception had not been met because father did not occupy a parental role in daughter's life. (In re K.P. (2012) 203 Cal.App.4th 614, 621 [to satisfy second prong of beneficial parent-child relationship exception, " 'the parents must show that they occupy "a parental role" in the child's life' "].) Based on the social worker's assessment, daughter considered her parents to be "visitor[s] or . . . good friend[s]," not parental figures. Daughter also looked to the maternal grandparents, not father, for her everyday needs.
Father argues that the social worker's assessment that daughter viewed him as "friend" was conclusory and unsupported by the evidence because daughter regularly asked when she could go home with her "dad." Father also insists that he assumed a parental role during visits by teaching daughter and providing her with learning opportunities. However, the social worker's assessment of father and daughter's relationship was based on her interactions with father, mother, and the maternal grandparents. Father only had supervised visits with daughter. Moreover, the maternal grandparents reported to the social worker that although daughter had difficulty separating from father after visits, she generally recovered quickly. Daughter also sometimes declined speaking with father over the phone.
Citing In re Casey D. (1999) 70 Cal.App.4th 38, father insists that "day-to-day contact" is not a prerequisite to finding a beneficial parent-child relationship, and a beneficial parent-child relationship can exist even in the absence of daily contact. (Id. at p. 51.) But even though daily contact is not a requirement, a "parental relationship is necessary for the [beneficial parent-child relationship] exception to apply, not merely a friendly or familiar one." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) We agree with father that the record reflects that he visited daughter frequently, and the visits were generally positive. However, "[e]vidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.)
Next, father observes that under Autumn H., when a juvenile court determines if the child will benefit from continuing a relationship with a parent, "the 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." (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) Father argues that daughter was not in a "tenuous placement" because she remained with the maternal grandparents, whom she had known since birth, so that "factor" did not need to be weighed into the juvenile court's analysis of the beneficial parent-child relationship exception.
Adoption, however, has been determined to be the Legislature's first choice "because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker." (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Even if daughter remained in the maternal grandparents' care under a plan of guardianship, such an arrangement would still prove more "tenuous" than adoption. "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." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)
Father also argues that the juvenile court should have taken into consideration the mitigating facts that he is a combat war veteran with PTSD who had suffered traumatic brain injuries as a result of his deployments. We are sympathetic to father's situation and find his military service commendable, but the juvenile court had no occasion to consider father's experiences as a veteran when determining whether the beneficial parent-child relationship applied. By the time of a section 366.26 hearing, after reunification efforts have ceased, the child's interest in stability is the juvenile court's foremost concern. (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) And the statutory exceptions to the preferred plan of adoption, including the existence of the beneficial parent-child relationship exception, applies only in "exceptional circumstances." (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.) As we have discussed, to demonstrate the existence of a beneficial parent-child relationship, father had to show that there was a "significant, positive, emotional attachment" between him and daughter. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In this case, father failed to meet his burden to demonstrate the existence of such exceptional circumstances.
We further find that the juvenile court did not abuse its discretion by concluding that the relationship between father and daughter was not a compelling reason to find that termination of parental rights would be detrimental. (See Bailey J., supra, 189 Cal.App.4th at p. 1315 [abuse of discretion standard applies to juvenile court's conclusion that the existence of a beneficial parent-child relationship is not outweighed by benefits of adoption].) In part, daughter was removed from father's care because of her exposure to the domestic violence between mother and father. Yet father failed to enroll in counseling or psychotherapy and had not completed a batterer's intervention program. Father's recent behaviors, including his decision to stay with daughter after a visit, which had the effect of exposing daughter to a conflict between mother and father, demonstrated that he lacked insight into how his actions impacted daughter's well-being. The social worker consistently noted that father and daughter were bonded and had a loving relationship, but daughter was also bonded with the maternal grandparents. The maternal grandparents provided for daughter and enrolled her in preschool and other activities, including swimming and horse-riding lessons. The maternal grandparents also attended therapy sessions with daughter, and as a result of the therapy sessions, some of daughter's difficult behaviors had since decreased.
Finally, father also argues that In re E.T., supra, 31 Cal.App.5th 68 is analogous to his case. In E.T., the juvenile court terminated the mother's parental rights over her twins. (Id. at p. 75.) On appeal, the First Appellate District reversed the order terminating parental rights after determining that the juvenile court erred by failing to recognize that the mother's relationship with the children outweighed the benefits of adoption. (Id. at pp. 77-78.) The children, who were then four years old, had spent nearly half of their lives with the mother. (Id. at p. 77.) The evidence in the record demonstrated that the children loved the mother, the mother provided them with comfort and affection, and the mother continued to participate in programs designed to maintain her sobriety and make her a better parent even though she was denied services. (Id. at pp. 76-77.) The "insight [that the mother] had into her own development" was also clear from her testimony before the juvenile court. (Id. at p. 77.) Moreover, the First Appellate District observed that the juvenile court may have considered that the children would still have contact with the mother even if her parental rights were terminated because of the longstanding relationship between the mother and the children's caretakers, but a court " 'cannot nevertheless terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent, even if substantial evidence supports that expectation.' " (Id. at p. 78, quoting In re C.B. (2010) 190 Cal.App.4th 102, 128-129.)
The facts of father's case are distinguishable from E.T. The mother in E.T. demonstrated insight and actively participated in programs to address her issues. Father, however, failed to complete portions of his case plan, such as seeking counseling or psychotherapy, despite receiving 18 months of reunification services. The social worker also repeatedly found that father lacked insight into his own behaviors and how they impacted daughter. Additionally, there is nothing in the record that indicates that the juvenile court improperly considered that daughter may still have contact with father even if his parental rights were terminated because of the relationship between father and the maternal grandparents.
Here, the juvenile court determined that the beneficial parent-child exception did not apply, and this determination is supported by the record. "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Such extraordinary circumstances are not present here, and we must affirm the juvenile court's decision.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Danner, J.