Santa Clara Cnty. Dep't of Family & Children's Servs.
v.
D.S. (In re D.S.)

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTSep 12, 2018
H045047 (Cal. Ct. App. Sep. 12, 2018)

H045047

09-12-2018

In re D.S., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. D.S. et al., Defendants and Appellants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 114JD22996)

T.N. (mother) and D.S. (father) appeal from the juvenile court's order under Welfare and Institutions Code section 366.26 terminating their parental rights to their son, D.S. (child, born 2009). Both mother and father argue the court abused its discretion when it failed to find the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applicable. As we explain, we find no merit in their arguments and affirm the juvenile court's order.

Unspecified statutory references are to the Welfare and Institutions Code.

BACKGROUND

1. Events Leading to the Section 366.26 Hearing

On September 8, 2017, we took judicial notice on our own motion of the record filed in mother's petition for extraordinary writ challenging the juvenile court's setting of a hearing under section 366.26 (T.N. v. Superior Court (Nov. 22, 2016, H043931) [nonpub. opn.]). We denied mother's writ petition in a nonpublished opinion, which sets forth the underlying facts of child's dependency that were relevant to the issues raised in the petition. We briefly summarize the facts leading up to the section 366.26 hearing here for completeness.

On October 8, 2014, the Yuba County Health and Human Services Department (Yuba Department) filed a petition under section 300, subdivision (b) alleging child was at a substantial risk of suffering from serious physical harm or illness. Child was taken into the Yuba Department's care after mother was found exhibiting signs of mental illness at a hotel. Mother had previously been diagnosed with schizophrenia and bipolar disorder and admitted at the time that she had not been taking her medication. She was placed on a section 5150 hold.

The Yuba Department filed a jurisdiction report summarizing mother's history with child services and her history of mental health issues. According to the report, mother had abused drugs and had started using methamphetamine when she was a teenager. She had previously stopped using drugs but had recently relapsed.

Mother's father (grandfather) was interviewed by the social worker. Grandfather explained that mother sometimes hallucinated and was at times verbally and physically abusive to child. Grandfather confirmed mother's history of mental health issues. Grandfather also explained that father had a history of domestic violence against mother. Father had previously violated a restraining order protecting mother and child from him.

Father had been in custody when the dependency petition was filed and was released from custody in October 2014. On November 20, 2014, the juvenile court in Yuba County sustained the Yuba Department's section 300 petition and ordered the case transferred to Santa Clara County, where mother had relocated.

In December 2014, child moved from his foster home to live with grandfather and maternal grandmother (grandmother). Around the same time, a social worker with the Santa Clara County Department of Family and Children's Services (Department) interviewed father. Father told the social worker he had a history of substance abuse. He denied he was ever violent with mother despite having an active restraining order for domestic violence against her. Father also had a prior domestic violence conviction.

Grandmother is not mother's biological mother but has been married to grandfather for more than 25 years.

On January 14, 2015, the Department filed a disposition report with the juvenile court recommending various services and classes for both parents, including random drug and alcohol testing. Following a disposition hearing, child was removed from mother's care and both parents were given reunification services. The juvenile court ordered supervised visits for both parents, and the parents retained educational rights.

The Department prepared an interim review report dated March 18, 2015. Mother had participated in and completed a parent orientation and was attending parenting classes. She had completed a psychological evaluation, which recommended mother complete substance abuse treatment, maintain her sobriety, and address her mental health issues with medication and regular psychiatric visits. Mother had taken several drug tests, and two of her tests came back with a dilute result. Father had also participated in and completed a parent orientation and was attending a batterer's intervention program. He had been tested regularly for drugs by the probation department and by the Department. Five out of the six times he was tested by the Department he had negative results with one administrative positive result. The social worker believed both parents were fully engaged with the ordered case plan. There were no issues with the supervised visits between the parents and child.

The Department prepared a status review report dated June 24, 2015, in preparation for the six-month review hearing. Both parents were still complying with their case plans and were consistent with visiting child. Child did not have any reported developmental delays, but he had been diagnosed with adjustment disorder with anxiety. Child, however, was thriving in his grandparents' care. Ultimately, the Department recommended an additional six months of reunification services.

At the six-month review hearing, the court continued reunification services for both parents. Both parents were ordered to complete parent coaching sessions with child's therapist, and the court determined the Department had provided reasonable services.

On November 18, 2015, the Department prepared another status review report for the 12-month review hearing. According to the social worker, father had wanted to start overnight visits and had recently done so. Father was already having unsupervised visits with child. Father, however, still denied he perpetrated domestic violence against mother or used drugs in a way that may have impacted child. Mother continued to regularly visit child. She had primarily negative drug tests with a few dilute results. A medical evaluation did not show any physical abnormalities that would explain mother's dilute results. The social worker attempted to contact mother's therapist several times but did not receive a response. Child was continuing to thrive under his grandparents' care.

The social worker recommended child remain in out-of-home care, because the initial reasons for dependency still existed despite progress made by both parents. The social worker believed mother and father either minimized or did not comprehend the trauma, pain, and confusion that child had endured.

Child exhibited some troubling behaviors after visits with his parents. Mother had told child not to call grandmother "grandma," even though he was comfortable calling her that. He would return from visits with mother withdrawn and would return tired from overnight visits with father. After one of the visits with father, child returned with a cigarette burn by his right eye near his temple. Another time he came back from visiting father with scrapes on his left side above his waist. Before one visit, child was emotional and crying while he was getting ready.

The social worker had gotten in touch with mother's therapist and had e-mailed her several times. The therapist indicated mother was being seen once a month for issues related to her stability and employment. The social worker inquired if mother could be seen more often to address her issues, and the therapist responded the program was not a court-mandated program and, as a voluntary clinic, clients were typically seen once every three or four weeks. Based on her correspondence with mother's therapist, the social worker did not believe mother was adequately addressing the issues the court wanted her to address through therapy. The social worker stated she would provide mother with a list of therapists and would attempt to get funding for mother to have therapy sessions. The social worker again expressed concerns over mother's dilute drug test results; mother had a pattern of three or four normal results and one dilute result. Mother had also been present at one of child's overnight visits with father in violation of the court's visitation orders.

On July 22, 2016, the social worker filed a status review report recommending termination of family reunification services for both parents. Mother had started unsupervised visits with child, but child would often display aggressive behavior after visits. He would throw his toys on the floor and bang his forehead with his palm. He refused to do chores and told his grandmother he was supposed to call her by her first name. Child had been seen collecting pennies for mother, and he said he did not believe his mother had money.

Overnight visits between child and father had stopped, because father had exhausted the funds available for hotels to facilitate visits. Both parents were living in separate transitional housing units where child could not live. The social worker had attempted to meet both parents to discuss their living situations, but both parents consistently told the social worker they were working and could not meet.

In May 2016, mother had become angry at the Department when the social worker failed to pay her mileage and hotel costs for a visit. She threatened not to visit child again. The grandparents contacted the Department and expressed frustration with the parents' inconsistencies with visitation and believed the inconsistencies were negatively impacting child. Mother had canceled a visit with child and had suggested a late 11:00 p.m. pickup on another occasion. She also questioned why child needed therapy.

Child's therapist reported that he believed child's issues stemmed from the inconsistencies in his life, including the mixed messages he received from his parents and grandparents.

Mother's psychiatrist, Dr. Victor Chen, believed that mother was stable and her symptoms were controlled. So long as she remained on medication, Dr. Chen saw no reason why she could not parent a child. Dr. Chen, however, remarked that his analysis was based on mother's presentation at clinic; he did not have first-hand knowledge of her behavior at home, and he saw her only once every three months.

Mother had started seeing a new therapist and had completed nine sessions. The social worker, however, did not give much credence to the therapist's conclusions. The therapist had seen mother for only eight weeks and was already strongly advocating on her behalf. Father was also seeing a therapist. Initially, father denied any domestic violence in his relationship with mother. However, he gradually became more open and honest about his issues with his therapist.

On September 1, 2016, the juvenile court terminated reunification services and set a selection and implementation hearing pursuant to section 366.26. Mother filed a writ petition challenging the juvenile court's termination of services, which we denied in an unpublished opinion. (T.N. v. Superior Court (Nov. 22, 2016, H043931) [nonpub. opn.].)

2. The Reports Prepared for the Section 366.26 Hearing

On January 30, 2017, the court denied the parents' request for a court-ordered bonding study but permitted the parents to obtain a bonding study at their own expense. Whatever experts they retained would be allowed to observe two visits with child but would not be able to interview him.

On May 23, 2017, the Department filed a section 366.26 report. The social worker recommended terminating both parents' parental rights and freeing child for adoption by his grandparents. The social worker opined that if child was adopted, both parents would still be able to see child during family functions. Furthermore, child had spent most of his childhood in his grandparents' care. The grandparents believed adoption would be a legal formality since they already took care of child's needs, and they were committed to raising child and ensuring him continued permanency.

In an addendum report, the social worker recommended giving the grandparents educational rights over child and taking away the parents' educational rights. The Department had been having trouble getting the parents to sign paperwork on child's behalf. The parents were also against mental health services for child.

In another addendum report, the social worker recounted some of the interactions child had with his parents. Mother had canceled several visits, but child was not upset about the cancellations since he knew about them beforehand. One morning before school, child seemed distressed and asked his grandmother why his mother had no money. Later, he visited mother at her new apartment where he had his own bed. His grandparents reported he looked confused and sad afterwards. Child was exposed to rap music while with his mother, which contained age inappropriate material like foul language and references to drug use. Child had some behavioral issues at school but was doing well overall.

Father had been late to several visits but started being punctual after being reprimanded. The grandparents had reported that child had asked to play Grand Theft Auto, a violent video game with sexual content, after visiting father. Child told his grandparents that during visits, father would take him to a fast food restaurant where they would eat. After they ate, they would go home and father would take a nap. While father napped, child was free to play whatever games he wanted to play on father's computer.

The social worker asked child about what he did with father during visits. Child told the social worker a similar story. Child said that he and father would eat, then father would take him to the library. At the library, father would take a nap, and child would play on the computer. Child said he would browse YouTube and listen to rap music. The social worker asked child what kind of rap music he listened to, and child made rap sounds while emulating a person smoking marijuana or holding a pipe.

Overall, the social worker expressed concerns with the irregularity of parents' visits with child. Both parents were not being consistent with their visitation and were not adhering to the visitation rules. The social worker believed child was being confused by the mixed messages he received from the parents and grandparents.

The social worker assessed that both parents had been receiving services for close to 24 months. Despite the amount of services they had received, both parents were still in denial over their history of domestic violence and the impact their substance abuse had on child. The social worker opined the parents did not understand child's needs and did not place his interest first. For example, the parents enrolled child in a baseball team but did not provide the Department with a schedule of games and practices. Later, child's grandparents found out that practices and games did not always fall during the parents' visitation times. Grandmother changed her schedule to ensure child would be able to make it to all baseball games, because child was looking forward to being part of the team and would be disappointed if he had to withdraw.

The social worker assessed that the parents were not able to provide adequate supervision even during the several hours of visits they had with child per week. The parents also did not appear to understand child's need for stability in his life.

In contrast, the social worker believed child had stability while living with his grandparents. He referred to his grandfather as his "bestest buddy." He was close with his grandparents' two other children. The grandparents acted as child's parents. Both grandparents also worked on integrating child's parents into his life. Child, however, did not express wanting to spend more time with his parents after having visits. When visits with his parents were canceled, child remained happy and simply went on with his day.

On May 23, 2017, the Department filed an addendum report that attached and summarized father's bonding study prepared by Dr. Harmony Satre, a licensed psychologist. According to the bonding study, father did not want his parental rights to be taken away. He wanted mother to take care of child, and he acknowledged he needed time to plan his own future. The study concluded father seemed to have child's best interest in mind. Father believed he did not presently have enough resources to support child or to provide child with a stable environment.

As part of the bonding study, Dr. Satre observed father and child interacting at a park. Father and child displayed affection toward each other during the visit. Following the visit, Dr. Satre concluded that there was a beneficial bond between father and child and from child's perspective the bond outweighed the benefits of adoption. The bonding study recommended that father retain his parental rights.

Dr. Satre submitted a second report after receiving more information about child's case. In preparation for the second report, Dr. Satre observed father and child together at a restaurant. She also spoke with grandmother. Based on this second visit, Dr. Satre determined her initial conclusion from the first bonding study remained valid.

Lastly, in a separate addendum report, the social worker summarized some of the difficulties mother had with adhering to the rules set forth for visitation. For example, mother would sometimes pick child up early or drop him off late.

On June 29, 2017, child's court appointed special advocate recommended that visits with the parents continue and child remain in his current placement.

3. The Section 366.26 Hearing

The contested section 366.26 hearing began on May 23, 2017. During the hearing, the court admitted the Department's reports, addendum reports, and the report prepared by child's court appointed special advocate.

The social worker, an expert in risk assessment, placement of dependent children, and permanency planning, was cross-examined by father and mother. The social worker acknowledged she had not observed visits between either of the parents and child. The social worker testified that mother had consistent unsupervised visits with child and talked to child on the phone every day. However, the social worker opined that child saw his parents as visitors and not as parents in a parental role. Furthermore, the social worker believed that even if parental rights were terminated, the parents would still have contact with child during holidays. The social worker had not spoken to child about adoption, but she did not recommend legal guardianship with limited visitation for the parents since the parents had both violated prior visitation orders.

Mother testified that child had lived with her until he was removed by the Department when he was approximately four and a half years old. She, child, and father had all lived together for about a year. When she lived with child, mother believed she met his needs and provided him with care and support. During visits with child, mother would help child complete his homework, go to the park, meet friends, and have dinner. Mother did not let child play video games at her house but would occasionally let him play nonviolent games at the library or bookstore. She and father paid for child's baseball fees. Mother denied that she listened to rap music. Mother believed child loved her and would be disappointed if he was not permitted to see her or father. Mother said child had recently told her that he wished to live with her.

Dr. Satre's two bonding studies, which evaluated the relationship between father and child, were admitted into evidence. Dr. Satre testified and summarized that she had observed father and child on two different visits, once at the park and once at a restaurant. Dr. Satre reiterated that she believed child had a meaningful parent-child relationship with father, and severing that relationship would be detrimental to child. Dr. Satre likened child losing his relationship with father as similar to experiencing a death in the family. Dr. Satre opined it may be even worse than experiencing a death in the family, because child would know father was there but would not understand why he cannot see father and perceive father's absence as a rejection, leading to a variety of issues like decreased self-esteem, anxiety, depression, and lack of security. Dr. Satre believed a legal guardianship would be preferable because it would permit father to remain in child's life.

On cross-examination, Dr. Satre admitted that statements in the reports she had prepared were very similar to statements she had made in a report prepared in connection with a different case. Dr. Satre explained she used a template to prepare her reports. However, she believed the information recounted in her reports was accurate. Dr. Satre acknowledged her report stated that child had lived primarily with mother and father for the first four years of his life. However, mother herself had testified that she and child had resided with father for only around a year.

Father testified on his own behalf. Father said he had only ever missed one visit with child. He took public transportation to meet child, which took around two hours. During visits, father and child would go to the library and watch movies. Father denied giving child access to violent video games. On cross-examination, he admitted he permitted child to play games on the library computer. Father, however, denied napping during visits. Father believed that terminating his parental rights would be detrimental to child, because child would wonder where he had gone.

Grandmother testified that the parents had signed child up to participate in a baseball team, but she ended up having to transport him to most of his games. According to grandmother, both parents had difficulty adhering to their visitation schedules.

4. The Juvenile Court's Order Terminating Parental Rights

Mother and father argued against terminating their parental rights. The Department and minor's counsel argued in favor of terminating parental rights and pursuing adoption as the permanent plan. After hearing arguments from the parties, the juvenile court terminated mother and father's parental rights on August 18, 2017. In coming to its decision, the court noted that the case was close. However, the court ultimately concluded the parents did not meet their burden to prove the beneficial parent-child relationship exception existed.

First, the juvenile court determined that both parents had met the first prong of the beneficial parent-child relationship because both parents had maintained regular visitation with child. The court further remarked that child's case was unusual, because both parents had unsupervised visits with child.

The juvenile court then discussed the second prong of the beneficial parent-child relationship exception, which required the parents prove child's relationship with them promoted his wellbeing and outweighed the benefits of adoption. The court considered the social worker's opinion and noted the deficiencies in her report and her testimony during cross-examination. The social worker did not observe visits between the parents and child, and she seemed to minimize the short-term and long-term detriment that child may suffer if he was not permitted to see his parents again. The social worker also failed to consider the child's wishes regarding permanency. Based on these deficiencies, the court did not find the social worker's expert opinion on the existence of the beneficial parent-child relationship persuasive.

The court also considered Dr. Satre's opinion. Although the court found Dr. Satre's opinion that there was a bond between father and child to be credible, the court did not give credence to her opinion that it would be detrimental to child to terminate parental rights. The court also did not find credible Dr. Satre's opinion that father occupied a large and positive role in child's life. The court noted that Dr. Satre made several mistaken assumptions, such as her belief that father had raised child for the first few years of his life. Additionally, the court believed Dr. Satre minimized the impact father's domestic violence had on child and failed to give weight to the fact that father had violated visitation orders and had reportedly fallen asleep during visits with child. The court also noted there were deficiencies in Dr. Satre's reports, including the fact that her report contained passages that were very similar to passages used in a report she prepared in a separate case. In sum, the court found Dr. Satre's opinion to be unpersuasive.

After finding none of the experts credible, the juvenile court weighed the rest of the evidence. Based on the evidence presented, the court concluded that although child knew who his parents were, the parental role in his life was fulfilled by his grandparents and not by mother and father. The court also believed the parents were a "frequent source of anxiety and turmoil" for child and there was no doubt that child needed stability and structure in his life. Mother lacked insight into how her disregard for visitation orders may confuse child. Father still minimized his domestic violence, and he was still under a criminal protective order and domestic violence protective order protecting mother. Child enjoyed visits with his parents, but often displayed behavioral problems after visiting them. Thus, the court concluded the parents had not met their burden to prove the beneficial parent-child relationship exception existed.

Mother and father appealed.

DISCUSSION

Mother and father join in each other's arguments on appeal. --------

On appeal, mother and father argue the court erred when it terminated their parental rights and failed to apply the beneficial parent-child relationship exception to adoption. As we explain, we reject their contentions.

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 court also determines by clear and convincing evidence that it is "likely the child will be adopted," the court "shall terminate parental rights and order the child placed for adoption" (§ 366.26, subd. (c)(1)) unless certain exceptions apply.

Mother and father rely on the beneficial parent-child relationship exception set forth under section 366.26, subdivision (c)(1)(B)(i). Under section 366.26, subdivision (c)(1)(B)(i), the 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 parent . . . 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.) "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).) Accordingly, when "the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (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.)" (Bailey J., supra, 189 Cal.App.4th 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." (Ibid.)

2. The Juvenile Court's Decision that the Beneficial Parent-Child Relationship Exception was Inapplicable

Both mother and father argue the beneficial parent-child relationship exception applies, and the trial court should have found that termination of their parental rights would be detrimental to child's well-being. The Department disagrees with mother's and father's assessment and argues the juvenile court's decision that the exception did not apply was supported by the record. We find merit in the Department's argument.

" '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.).)

As the juvenile court noted, mother and father satisfied the first prong of the beneficial parent-child relationship exception, because they maintained regular visitation with child. In fact, mother talked to child every day over the phone. The court, however, concluded the parents failed to satisfy the second prong of the exception, because mother's and father's relationship with child negatively impacted him. This determination is supported by the evidence in the record. The grandparents had reported that child acted out and displayed behavioral problems after visiting his parents. Mother and father exposed child to inappropriate music and video games during visits. The parents often failed to adhere to the court's visitation orders. The grandparents believed the inconsistent visits caused child anxiety. The parents also did not seem to understand why child needed therapy. Although mother and father loved child, there was evidence that both lacked insight into how their actions, such as their past domestic violence with each other, negatively impacted child. The social worker's report described that if he was informed the parents could not visit, child would remain happy and would go about his day. Child did not express wanting more visits with his parents.

Although there is evidence the parents were affectionate with child during visits, and child reciprocated the affection, evidence that a parent has maintained " '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.) Here, evidence supports the juvenile court's conclusion that the parents' relationship with child, though largely positive, still fell short of what is required for the exception to apply.

Mother's and father's arguments on appeal merely direct us to evidence in the record that support a conclusion different from that ultimately reached by the juvenile court, such as Dr. Satre's assessment of father's and child's relationship. Like in many dependency cases, this case had evidentiary conflicts that required the juvenile court to make "highly subjective evaluations about competing, not necessarily conflicting, evidence." (I.W., supra, 180 Cal.App.4th at p. 1528.) It is not our function to retry the case or reweigh the evidence. (Ibid.) Substantial evidence supports the trial court's factual determinations, and "[t]his is simply not a case where undisputed facts lead to only one conclusion." (Id. at p. 1529.)

Furthermore, even if mother and father had met their burden to establish the existence of a beneficial parent-child relationship, the trial court did not abuse its discretion when it determined the benefits derived from child's parental relationships did not outweigh the benefits derived from adoption. The parents argue there is evidence that child would suffer harm if their rights are terminated. We agree that such evidence exists, but disagree with the parents' conclusion that because child will suffer some harm, the juvenile court's order was erroneous. The beneficial relationship exists if a child's relationship with his or her parents " '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 Casey D. (1999) 70 Cal.App.4th 38, 50.) The court's decision to terminate parental rights is not governed by one single factor; it is a balancing test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 231 (Dakota H.).) The fact that a child may be harmed from termination of parental rights does not by itself mean that adoption should not be pursued.

Both parents ignore evidence that adoption would greatly benefit child. Child needed stability in his life, and his grandparents were providing him with that stability. Gaining a permanent home with his grandparents, which would provide child with much-needed consistency, would promote child's well-being. Child was close with his grandparents and referred to his grandfather as his "bestest buddy." Although there are alternatives to adoption that would preserve parental rights, such as guardianship, alternatives are "not equivalent to the security of a permanent home." (Dakota H., supra, 132 Cal.App.4th at p. 231.) "Even guardianship is 'not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' " (Ibid.)

Mother argues the juvenile court abused its discretion and misapplied the law when it confused the determination of whether child had a beneficial relationship with his parents with the issue of whether termination of the parents' rights would cause child detriment. Mother insists the trial court should have first determined whether the parents had a beneficial relationship with child and then determined if that relationship constituted a compelling reason not to terminate parental rights.

We reject mother's claim that the juvenile court's statements indicated it misunderstood the law. During the hearing, the court stated that it must determine if the "parents have proven by a preponderance of the evidence that [child] would benefit from continuing his relationship with them." The court also noted that "[t]he beneficial relationship defense requires the parents to prove that [child's] relationship with them promotes his wellbeing to such an extent as to outweigh the benefits of adoption." We believe this is a correct statement of the law, and we fail to see how the trial court's conclusions—that child derived some benefit from his relationship with his parents, but the benefits that were derived did not outweigh the benefits of adoption—demonstrated it abused its discretion.

Mother also insists the court abused its discretion when it drew comparisons between the grandparents, who were child's primary caregivers, and the parents. Mother insists neither she nor father were required to prove child had a " 'primary attachment' " to them. (In re S.B. (2008) 164 Cal.App.4th 289, 299 (S.B.).) We agree with mother that the parents did not have to demonstrate child maintained day-to-day contact with them, or show that he was more attached to them than to the grandparents. As we have explained, what is required is that the parents demonstrate child has a " 'substantial, positive emotional attachment' " to his parents. (Ibid.)

Mother's argument, however, is premised on the trial court's statements that it believed the grandparents were child's primary source of comfort, structure, care, and stability, and that the evidence reflected the parents played a distant secondary role in parenting child. We do not believe these statements demonstrate the trial court misinterpreted the law. The court did not state it found the parental relationship exception inapplicable because the parents were not child's primary caregivers.

Moreover, the court was correct to examine the parental role the parents did occupy in child's life. When determining whether the beneficial parent-child relationship exception applies, the trial court must examine the attachment between the parent and the child. As we explained, "[t]he relationship [between parent and child] arises from day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.) When weighing the significance of the relationship, the trial court looks to factors such as "[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 . . . ." (Id. at p. 576.)

We acknowledge both parents' argument that their relationship with child should be examined with the understanding that they were limited to court-sanctioned visitation and could not see child whenever they wished. (See In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1535.) Nonetheless, it was not an abuse of discretion for the court to consider the role mother and father filled in child's life when evaluating the significance of their relationship with child. Moreover, it was not an abuse of discretion to consider how important the grandparents were to child. Weighing the relationships assists the juvenile court in determining whether the parents' relationship with child promoted his well-being to such an extent as to outweigh the benefits child would receive from a permanent home with his new adoptive parents—his grandparents. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Mother claims the court abused its discretion when it determined, contrary to Dr. Satre's testimony, that ameliorating the anxiety and confusion suffered by child due to his parents' inconsistent visitations would outweigh the damage he would suffer if their rights were terminated. First, we note mother's argument incorrectly frames our review as grounded in the abuse of discretion standard. As we have explained, the juvenile court's factual determinations are reviewed for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

Additionally, based on the evidence presented to the juvenile court, substantial evidence supported its factual determinations. The social worker's reports contained numerous references to the grandparents' concern over child's confusion and anxiety over his parents' inconsistent visitation. Mother argues that because the court found the social worker's opinions to be unpersuasive, the social worker's report cannot be used to support the juvenile court's factual determination. We disagree with this assessment. Although the court was not persuaded by the social worker's opinions, there is nothing in the record to indicate the court discredited all the information recounted in her report. The social worker's report summarized conversations she had with the grandparents about child's wellbeing. The report also summarized interviews she had with the parents and child. There was thus ample evidence supporting the court's determination that child suffered from anxiety and confusion due to his parents' inconsistencies with adhering to visitation schedules and rules.

Mother further argues the "proposition that [child's] loss may be healed by time and support, even if true, does not support a finding [child] would not be greatly harmed by termination of parental rights." (S.B., supra, 164 Cal.App.4th at p. 300.) In principle, we agree with mother's argument. However, her argument is premised on the assumption that the parents shared a strong parental-child bond with child and he would be greatly harmed if parental rights were terminated. As we previously described, the juvenile court found neither of these statements to be true, and substantial evidence supports the court's conclusions.

Finally, mother claims the juvenile court erred when it terminated both parents' rights without receiving a direct statement from child explaining his wishes. At all proceedings under section 366.26, the juvenile court is required to consider the wishes of the child and act in the child's best interests. (§ 366.26, subd. (h).) Evidence of the child's wishes may be presented by direct formal testimony in court, informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court or electronic recordings. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.)

The record does not contain a direct statement from child reflecting his wishes. Child, however, was represented by counsel throughout the proceedings. Child's counsel advocated for termination of the parents' rights and permanency for child through adoption. Under section 317, subdivision (e)(2), child's counsel was obligated to interview him, determine his wishes, and advise the court of those wishes. We must presume counsel complied with these duties when it advocated for adoption on child's behalf. (In re Jesse B. (1992) 8 Cal.App.4th 845, 853.)

Additionally, mother must not only show error but also show the error was prejudicial. (In re Michael G. (2012) 203 Cal.App.4th 580, 591.) Mother has not met her burden to demonstrate prejudice here. She cannot show there is a reasonable probability the court would have reached a different result had child voiced a preference against adoption. (Ibid. [applying harmless error standard set forth under People v. Watson (1956) 46 Cal.2d 818 to omission in adoption assessment report].) During the hearing, the court specifically stated it would assume, for the purposes of its decision, that child would have said he wanted to continue visits with both parents. Thus, any error in failing to obtain a direct statement of child's wishes was harmless.

In sum, we agree with both mother and father that they presented evidence that showed child would benefit from maintaining a relationship with them. However, substantial evidence still supported the juvenile court's contrary factual determinations, and we find it did not abuse its discretion when it terminated parental rights.

DISPOSITION

The juvenile court's order is affirmed.

/s/_________


Premo, J. WE CONCUR: /s/_________


Greenwood, P.J. /s/_________


Grover, J.