Opinion
F076632
08-29-2018
In re A.B., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHARLES B., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV070300D)
OPINION
APPEAL from orders of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
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Appellant Charles B. (father) appeals from the juvenile court's orders denying his modification petition requesting reunification services and terminating parental rights over his now seven-year-old daughter, A.B. He contends he established the requisite showing of changed circumstances and best interest pursuant to Welfare and Institutions Code section 388, subdivision (a)(1) to warrant an order for reunification services. He further contends the termination order was error because there was insufficient evidence A.B. was adoptable and the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) applied. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Protective Custody and Dependency Petition
In December 2016, the Tulare County Health and Human Services Agency (Agency) was notified that S.B. (mother) was living with her two sons, then 12-year-old Michael B. and nine-year-old Matthew B., and two daughters, 10-year-old A.H. and six-year-old A.B., in her mother Debra's garage. Different men reportedly entered and exited the garage, and mother's live-in boyfriend Jeffrey was on parole for armed robbery. Jeffrey was a heroin addict and mother was reported to be using heroin. She also had a history of methamphetamine use.
Mother denied using any drug but marijuana, which she smoked in the backyard with Jeffrey away from the children. She did not have a medical marijuana card. She said she had a criminal history and was on formal probation. She allowed the investigating social worker to enter her home. The social worker did not find any drugs or alcohol and noted the house was clean, the children had clothing, and there was plenty of food. The social worker interviewed the children. Michael saw a needle in mother's room and watched her "mixing stuff" for the shot she gave herself. Matthew saw a needle in the trash can in the backyard and observed Jeffrey place two marijuana plants inside the shed in the backyard. He also saw Jeffrey and mother using marijuana in mother's room and a jar of "green stuff" in her car. A.H. saw needle caps and needles in her mother's makeup drawer and marijuana in her mother's closet and dresser and in Jeffrey's truck. She watched mother injecting something in herself and hand bags of marijuana to people who came to their home.
Mother agreed to a safety plan that allowed the children to remain on Debra's side of the house but prohibited them from being in mother's room. Mother also agreed to drug test but refused when asked to spot test. The social worker attempted to conduct a meeting with mother, Debra and Samantha F., the maternal aunt, but mother kept leaving the meeting. Debra agreed not to allow mother and Jeffrey into the home. Mother was informed of the new plan and told to spot test and schedule an appointment with a drug and alcohol specialist. Mother was unable to produce enough urine for testing and failed to call the specialist. In addition, three of the children stated mother left drugs within their reach and used the children in criminal activity. On January 5, 2017, the social worker obtained protective custody warrants and removed the children from mother's custody. The social worker placed them with Samantha.
Father did not share custody of A.B. with mother but had a visitation order that allowed him four-hour visits on Saturdays. He knew about mother's drug use because he picked A.B. up at mother's home for visits. Although he claimed six months of abstinence from drug use, he was arrested in October 2016 for possession of a controlled substance.
Mother stated father was using heroin and methamphetamine intravenously and visited with A.B. at a storage unit he was renting. She showed the social worker a picture of the storage unit and pointed out the drug paraphernalia in the background and the propane tanks used to heat up the drugs. Mother admitted using methamphetamine intravenously and "shot up" the day before.
The Agency filed an original dependency petition, alleging mother's substance abuse rendered her incapable of providing the children regular care and placed them at a substantial risk of harm. The petition further alleged father knew about mother's drug abuse but failed to protect A.B., and Bryan B., Michael and Matthew's father, and Christopher H., A.H.'s father, failed to provide support because Bryan was incarcerated and Christopher's whereabouts were unknown. (§ 300, subds. (b) & (g).)
Mother and father (the parents) completed the form ICWA-020, "Parental Notification of Indian Status," mother indicating she was a member of the Choctaw Tribe of Oklahoma and father indicating he did not have any America Indian ancestry as far as he knew. The Choctaw Tribe notified the juvenile court mother, Michael, Matthew and A.H. were enrolled members of the tribe and A.B. was eligible for enrollment and it intended to intervene. The tribe requested that the children's placement be coordinated with the tribal worker assigned to the case.
The juvenile court detained the children, deemed father A.B.'s presumed father, found A.B. was an Indian child and allowed father to continue his unsupervised Saturday visits. The court ordered services for mother pending the jurisdictional hearing, which it set for February 2017.
Meanwhile, the Agency filed an amended petition alleging father abused methamphetamine and heroin and was facing criminal charges for possession of drugs and drug paraphernalia in Tulare County. The Agency also filed a motion requesting a change in visitation from unsupervised to supervised visits, citing father's significant criminal history, pending drug-related charges and failure to submit to a drug test. The juvenile court granted the motion for supervised visitation.
Jurisdictional/Dispositional Hearing
In February 2017, following a contested jurisdictional hearing, the juvenile court adjudged the children dependents under section 300, subdivisions (b) and (g). In its report for the dispositional hearing, the Agency recommended the court deny mother and father reunification services under section 361.5, subdivision (b)(13), because of their "extensive, abusive and chronic use of drugs" and resistance to prior court-ordered treatment. The Agency asserted the statute applied to father because he was ordered to comply with deferred entry of judgment in 2002, to complete a driving under the influence program in 2008 and placed on five years of summary probation. In 2015, he was arrested for possession of a controlled substance and ordered to register as a controlled substance offender. In 2016, he was arrested for possession of a controlled substance and scheduled to appear in criminal court on March 6, 2017. There were also text messages he sent mother in January 2017, describing selling "dope," stating he did some "h" and asking mother to "hit me." Mother explained that "hit me" meant he wanted her to "shoot" him up with methamphetamine.
In April 2017, the juvenile court ordered the children removed from parental custody and found active efforts had been made to prevent the breakup of the Indian family. The court denied the parents and Bryan reunification services under section 361.5, subdivision (b)(13), and set a section 366.26 hearing as to Michael, Matthew and A.B. on August 7, 2017. The court ordered reunification services for Christopher as to A.H. and set a six-month review hearing for October 2, 2017. Neither the parents nor Bryan challenged the juvenile court's setting order by extraordinary writ petition. Section 366.26
In July 2017, the Agency filed its report for the section 366.26 hearing, recommending the juvenile court terminate parental rights as to Michael, Matthew and A.B. and free them to be adopted by Debra and Samantha, the prospective adoptive parents. The children were placed with Debra and Samantha in January 2017 in the home they were living in when they were removed. The adoptive parents had a "profound life-long relationship with the children" who lived with them for most of their lives. The adoptive parents were committed to adopting the children and the children were clear in their desire to be adopted and remain in their home. The caretakers were approved for placement of the children by the Tulare County Relative Assessment Unit, and the Choctaw Nation supported the adoption.
The Agency reported the children were developmentally on target and were "articulate and bright with excellent gross and fine motor skills." They each successfully completed their academic year. They completed the "Strengths and Difficulties Questionnaire" and "SCARED Brief Assessment of Post-Traumatic Stress Symptoms" and were referred for counseling services in May 2017. They were still in the intake stage of the referral process. Though the Agency considered the children adoptable, it considered them difficult to place as a sibling group for various reasons, including their American-Indian heritage and tribal membership, age and mental health status.
The Agency opined it would be detrimental to return the children to parental custody but not to terminate parental rights because the parents had not provided for the children's day-to-day emotional, developmental, social or physical needs since their removal in January 2017.
In September 2017, father filed a modification petition under section 388, asking the juvenile court to offer him reunification services. As changed circumstances, he alleged he engaged in parenting classes, domestic violence education, drug treatment, drug testing and Alcoholics/Narcotics Anonymous meetings. As to why providing him reunification services would serve A.B.'s best interest, father stated a relationship with him was essential to her health and development. Except for two years during which mother and Debra prevented him from seeing A.B., father further alleged, he lived with and supported her. Attached to the petition were certificates of completion and attendance records as well as a letter from the probation department dated September 25, 2017, reporting that father was placed on formal probation and sentenced to the "Recovery Court/Prop 36" on May 26, 2017, for a period of three years. As a requirement of probation, he was required to submit to random narcotic/chemical testing. Since his enrollment in May, he tested 39 times; 35 with negative results and four times (June 1 and 2 and August 2 and 10) with positive results for amphetamine. The same report showed he tested negative on August 10.
On October 2, 2017, the juvenile court convened a contested hearing under sections 388 and 366.26 (contested hearing). As father's attorney called him to testify, county counsel objected to an evidentiary hearing on father's section 388 petition, arguing he failed to demonstrate his sobriety or complete a program. Father's attorney told the court father completed parenting and domestic violence classes, which were not required, and three of the positive drug test results were dismissed. He also stated he consistently visited A.B. once a week, which the social worker confirmed. The court continued the hearing to November 13, 2017, to give the parties an opportunity to present evidence that supported their positions. At another hearing on the same date, the court continued Christopher's reunification services to the 12-month review hearing, which it set for February 2018.
On November 9, 2017, A.B.'s counsel filed a declaration by mother's friend, Lauren D., attesting to father's erratic behavior and substance abuse. She spent time with the parents in 2008 when they were first dating. In March 2011, the parents engaged in a "particularly bad fight." Father left and Lauren and her husband had to search for him to make sure he did not hurt himself. She saw him smoke marijuana and appear drunk and strung out on cocaine or methamphetamine. He beat mother in front of the children and drove while under the influence. She heard him curse at and ridicule the children and call mother names. The children shook in fear that he would take his anger out on them. Lauren's husband helped father get a job in 2011, but he was fired for missing so many days of work while in jail for domestic violence. Recently and on numerous occasions, she and her husband had seen father walking down the street near her house, appearing to be under the influence of some substance, looking unkempt and yelling at himself or an unknown person or object.
On November 13, 2017, father testified he used drugs for two years and had been clean and sober since May 25, 2017. He last tested three days before the hearing and the results were negative. He disputed the positive drug test results for June and August, testifying the results for June 1 and 2 were dismissed for lack of evidence. His attorney showed him a minute order, which was entered into evidence, indicating the superior court dismissed a violation of probation based on the June test results. Father said the positive result for August 10 was a mistake because the probation report also showed he tested negative on the same date. He could not explain the positive result for August 2 since the report showed he tested negative on August 3, making that impossible based on the metabolic rate of excretion of methamphetamine. County counsel objected to his answer on the grounds he was not an expert. The court sustained the objection, stating father could tell the court he was not positive even though his was not expert testimony. Father further testified he was participating in aftercare and attended Alcoholics Anonymous meetings six to eight times a week. He completed 26 parenting classes and a 12-course "Safe Care" class. When A.B. was born, he helped with the children and provided financial support. However, he was asked to leave in 2013. He moved to Indiana, where he stayed for seven months. When he returned, he moved in with mother, Debra and the children. He and mother separated at the end of 2013 or beginning of 2014.
Since the case began, father visited A.B. once a week for two hours. Asked how she reacted, he stated, "It's amazing. She loves me. She runs in the room with open arms. She says, I love you, Daddy. We play immediately right there. I throw her up. We spin around. We have a blast. She loves me." Father believed they had a strong bond because of the way they interacted. He also believed it was in her best interest to have him in her life. He explained that his father left him when he was two, leaving him devastated. He promised A.B. he would never abandon her. He believed Debra was "an amazing woman" and a "provider." He even supported her taking custody of A.B. as her legal guardian as long as he was able to see her. He did not believe, based on past experience, Debra would allow him access to A.B. if she adopted her.
Father knew Lauren as mother's "drinking buddy." He saw Lauren the month before. He was walking down the street and stopped to talk to her husband. Prior to that, he had not seen her for several years, when he worked with her husband.
Debra testified A.B. began living with her in July 2012 at the age of two years. Samantha, mother and the children also lived in the household. Father was there for approximately a month and went to Indiana, where he remained for a year. He returned to Debra's home sometime around August 2013. Meanwhile, he and mother had married and the children stayed with Debra. Father lived in Debra's house for about six months and moved out in February 2014. While there, his focus was on mother and not the children. After he left, he did not call to inquire about A.B. He and mother divorced and father began visiting A.B. on Saturdays when A.B. was about five years old. Debra took the children to school, helped them with their homework and cooked and cleaned for them. If they fell, they went to her. If they needed somebody, they went to her. "Name something parental," she testified, "I did everything."
The juvenile court denied father's section 388 petition, finding A.B.'s best interest lies in remaining in Debra's home. The court stated:
"[W]hat's best for [A.B.] is a single home that's going to be there 365 days a year, food on the table, clothes on her back, someone who is going to pick her up from school, someone who is going to take her to the doctor, and someone who is not going to be under the influence and prevent her from doing any of those things. [¶] That's what [A.B.] needs and that's what she has with her grandmother, which has been ... the majority of her life."
Father's attorney asked the juvenile court to use the evidence presented in the section 388 phase of the hearing to rule under section 366.26. His attorney did not challenge A.B.'s adoptability or argue any of the exceptions to adoption applied. Rather, she opposed termination of father's parental rights in favor of legal guardianship with Debra to ensure his continued contact with A.B.
The juvenile court deemed Debra to be the children's Indian custodian, found none of the exceptions to adoption applied and terminated parental rights.
DISCUSSION
Section 388Once reunification is no longer the objective in a dependency proceeding, the focus shifts to the needs of the child for permanency and stability. Section 366.26 governs the selection and implementation of a permanent plan for a dependent child. At a hearing under section 366.26, the juvenile court need not consider the issue of reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388, subdivision (a)(1), allows a parent of a child who is a dependent of the juvenile court to petition the court, "upon grounds of change of circumstance or new evidence, ... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." The parent bears the burden of showing a legitimate change of circumstances or new evidence exists and that undoing the prior order would serve the child's best interest. (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
Thus, section 388 provides a means through which the juvenile court may consider new information that bears on the child's ultimate placement. The ability to present new evidence is critical, especially for a parent seeking to reunify, given the court's singular focus on finding a permanent placement for the child in the home of someone other than the parent. Consequently, section 388 serves as an "'escape mechanism'" in the short, final period before the actual termination of parental rights for a parent who can show he or she has reformed. "As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, italics omitted (Kimberly F.).)
A parent seeking to demonstrate the reformation contemplated under section 388 must show a change so compelling as to overcome the child's need for permanency and stability in a new home. This is so because the parent's interest in the care, custody and companionship of the child are no longer paramount and the focus shifts to the needs of the child. 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 (Stephanie M.).)
The juvenile court's decision whether to change an order by granting a section 388 petition is "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (Stephanie M., supra, 7 Cal.4th at p. 318.) Consequently, the reviewing court will not disturb a trial court's "'"decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination"'" or, put another way, the trial court has exceeded the bounds of reason. (Ibid.)
Father contends he met his burden under section 388 by proving his circumstances "significantly changed," citing his successful completion of programs, including drug treatment, and evidence of recovery. He further argues the strength of his bond with A.B. supported a finding reunification would serve her best interests. We disagree.
At best, father demonstrated he made recent inroads toward recovery from longstanding and active drug abuse. When the juvenile court intervened in January 2017, he was using heroin and methamphetamine, selling "dope" and facing criminal charges for drug possession. It was not until May 2017, when father was placed on formal probation, that he began to participate in drug treatment in earnest. Though he had sustained recovery for six months by the time of the hearing in November 2017, the court could conclude it was insufficient given his history to justify reopening reunification. "Not every change in circumstance can justify modification of a prior order." (In re A.A., supra, 203 Cal.App.4th at p. 612.) Rather, the change in circumstances must constitute a resolution or improvement of the problem that necessitated the court's intervention and compel a setting aside or modification of the challenged order. (Ibid.) Father did not establish that such a change had occurred.
Father asserts that he proved the "four positive amphetamine tests were false positives by the minute orders that dismissed this as violations." Respondent does not agree that dismissal of the violations "proved" the tests were inaccurate absent a specific statement by the criminal court or testing agency and declines to address it since the court gave father the benefit of the doubt as to his clean date. It is not clear from the record the positive test results were dismissed as father contends. Nevertheless, we will assume for the sake of argument that father's declared clean and sober date of May 25, 2017, was accurate.
Father asserts six months of sobriety are substantial considering his testimony he only used drugs for two years prior to attaining sobriety in May 2017. Father ignores, however, the juvenile court's finding he had an "extensive, abusive and chronic use of drugs" based on a history of drug use dating back to 2002.
Nor did father show that family reunification services inured to A.B.'s best interests. By the time he filed his petition, A.B. was on a solid path to adoption. She was living with her grandmother and aunt and expressly stated she wanted them to adopt her. Father nevertheless asserts that reunifying with him served A.B.'s best interest because they shared a "loving and positive relationship" and he promptly resolved his drug abuse. To that end, he applies factors identified by the appellate court in Kimberly F., supra, 56 Cal.App.4th at pages 530-532, which he contends should guide our analysis in reviewing the juvenile court's best interest determination.
In Kimberly F., the Court of Appeal rejected a juvenile court's use of a simple best interest test (a simple comparison of the parent's and caretakers' households) in analyzing a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th at pp. 526-530.) The appellate court then identified a list of factors to consider: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530-532.)
Although father interprets the Kimberly F. factors as those applicable to determining a child's best interest on a section 388 request, the Kimberly F. court described the factors it identified as a "basis on which to evaluate a section 388 motion," that is both elements: changed circumstances and best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) We agree with Kimberly F. that the nature of a change, the ease by which a change could be brought about, and the reason a change was not made earlier bear on the element of changed circumstances. (Id. at p. 531.) However, as we concluded above, father failed to establish the requisite change of circumstances. We also agree with Kimberly F. to the extent it rejects a "simple best interests" analysis in favor of determining best interest based on the strength of the child's bond to his or her parent as compared to the caretaker. (See Stephanie M., supra, 7 Cal.4th at pp. 324-325.) However, we do not agree with father that the court employed such an analysis here. The court decided that A.B.'s best interest would be served by remaining with Debra who raised her for the majority of her life in an environment that was consistent and met her needs. The court did not, as father contends, ignore his familial attachment and bond with A.B. At this stage of the proceedings and given the evidence before it, the court had no reason to redirect its focus from permanency and stability for A.B. to reunification with father. Adoptability
"Once [the juvenile court] sets a hearing pursuant to section 366.26 to select and implement a permanent plan for a dependent child, the [supervising agency] must prepare an assessment [citations], frequently referred to as an adoption assessment. Such an adoption assessment provides the information necessary for the juvenile court to determine whether it is likely the child will be adopted [citation] and to consequently order termination of parental rights." (In re G.M. (2010) 181 Cal.App.4th 552, 559.) The assessment must include "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent ...." (§ 366.21, subd. (i)(1)(D).) "A child's current caretaker may be designated as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).)" (G.M., supra, at p. 559.)
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Father contends the beneficial parent-child exception applies, which we discuss in the next section.
In determining adoptability, the juvenile court assesses the child's age, physical condition and emotional state and how these characteristics affect a prospective parent's willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "To be considered adoptable, a [child] need not be in a prospective adoptive home and there need not be a prospective adoptive parent '"waiting in the wings."' [Citation.] Nevertheless, 'the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [child's] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]. In other words, a prospective adoptive parent's willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.'" (In re R.C. (2008) 169 Cal.App.4th 486, 491, italics omitted (R.C.).)
In assessing adoptability, some courts distinguish between the "generally adoptable" and "specifically adoptable" child. A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) "'When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.'" (Id. at p. 494.) In our view, general versus specific adoptability is unnecessary as those terms are not mentioned in section 366.26 and the juvenile court is not required to assess adoptability in those terms. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time.
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to the juvenile court's findings, and draw all inferences from the evidence that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Here, although the Agency anticipated it would be difficult to place the children together as a sibling group, there was nothing about A.B.'s personal characteristics that rendered her unadoptable. She was developmentally on target and academically successful. In addition, she was adoptable by virtue of her placement with prospective adoptive parents. Father argues nevertheless, relying on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), there was insufficient evidence Debra and Samantha were suitable to jointly adopt her.
In Valerie W., a mother and her adult daughter applied jointly to adopt two children, one with a potentially serious genetic or neurological disorder and the other with emotional problems. (Valerie W., supra, 162 Cal.App.4th at pp. 5-7, 11, 14.) The children were considered adoptable only because the mother and her daughter were willing to adopt. (Id. at p. 15.) The agency failed, however, to provide sufficient evidence that either the mother or her daughter would be willing or able to adopt the children if the other were found unsuitable, or to identify another prospective adoptive parent. The appellate court concluded there was insufficient evidence to support the court's adoptability finding and remanded the case to the juvenile court. (Id. at pp. 13-16.)
Here, there was no evidence Debra or Samantha's suitability to adopt depended on the other or that either was unwilling or unable to adopt A.B. as a single adoptive parent. Thus, at a minimum, the juvenile court could find A.B. was adoptable because she had prospective adoptive parents committed to adopting her. Beneficial parent-child relationship exception to adoption
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependent child. The express purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the court determines it is likely the child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B).)
Father contends the exception found in section 366.26, subdivision (c)(1)(B)(i), i.e., the beneficial parent-child relationship exception, applies in this case. The beneficial parent-child relationship exception pertains where the evidence supports "a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] ... [¶] ... regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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 Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial parent-child relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some "'emotional bond'" with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) "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." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The juvenile court's decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the beneficial parent-child relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528; In re Breanna S. (2017) 8 Cal.App.5th 636, 647.) "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (In re Breanna S., at p. 647; see In re K.P., supra, 203 Cal.App.4th at pp. 621-622.)
Here, there was no dispute father maintained regular visitation and contact with A.B. However, he did not present any evidence, nor is there any evidence on the record, that he occupied a parental role in A.B.'s life. Rather, he was absent from her life for long periods of time, and when he lived in the same household, he did not perform the duties of a parent. Debra performed those duties. Consequently, father failed to show that continuing his relationship with A.B. would benefit her and that severing it would be detrimental to her. Thus, the evidence did not compel a finding in favor of father as a matter of law. Therefore, the court did not err by refusing to apply the beneficial parent-child relationship exception.
DISPOSITION
The juvenile court's orders denying father's section 388 petition and terminating parental rights, filed on November 13, 2017, are affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
ELLISON, J.
Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------