IN RE J.B.

No. A149074.

In re J.B., et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.R.B., et al., Defendants and Appellants.

Court of Appeals of California, First District, Division Four.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

STREETER, J.

J.R.B. (Father) and G.B. (Mother) appeal from an order terminating their parental rights and selecting adoption as the permanent plan for their sons, ages four and five. Father contends the beneficial parent-child relationship exception applies and a permanent plan less final than adoption should have been selected—either guardianship or long-term foster care—so he and the children might continue to enjoy and further develop the close relationship they share. Mother joins in Father's brief but does not seek application of the beneficial parental relationship herself. She does contend if Father's argument is successful, her parental rights also must be reinstated as a matter of law. (Cal. Rules of Court, rule 5.725(a)(1).)1 Both parents seek reversal of the orders terminating their parental rights.

I. BACKGROUND

In September 2014, when the boys were two and three years old, they came to the attention of the Alameda County Social Services Agency (Agency), brought in by the police because they had been exposed to a domestic altercation between their parents that resulted in Father's arrest and prosecution. The Agency filed petitions under Welfare and Institutions Code section 300, subdivisions (b) and (g),2 and the children were detained. The subdivision (b) allegations related to the state of the home as a safety hazard, the parents' violation of a restraining order and subsequent domestic violence incident in the presence of the children, Mother's previous receipt of family reunification services for and failure to reunify with a different child, and Mother's substantiated history of problems with alcohol and mental health. Father had also been involved in the child welfare system with another child, but the mother of that child had reunified with her. The subdivision (g) allegations concerned Father's arrest and incarceration, after which he allegedly failed to provide for the care of the children.

Both parents had criminal histories. Father had been arrested 15 times since 1992 and had been convicted a total of seven times for driving under the influence and other driving offenses, grand theft, and assault with a deadly weapon. Most recently he had been convicted in May 2014 of a domestic violence offense. (Pen. Code, § 273.5.)

The brothers, especially the older one, exhibited some aggressive behaviors, which the Agency attributed to their having witnessed domestic violence. Both were diagnosed early in the dependency with Adjustment Disorder and Attachment Disorder. The juvenile court assumed jurisdiction over the boys in March 2015, placed them out of the home, and ordered family reunification services. In January 2015, the brothers began visiting with a paternal great aunt, who ran a daycare center, and her husband. In April 2015, they were placed in that home and remained there through the hearing under section 366.26 in July 2016. By the time of that hearing, the great aunt and great uncle wanted to adopt the boys.

At the time of disposition, Father remained incarcerated at Santa Rita jail.3 While incarcerated he participated in parenting, domestic violence, and substance abuse programs, and had visitation with his sons every other Saturday. Father was released on June 8, 2015. After his release, he enrolled in an outpatient drug recovery program and a domestic violence program, and he tested negative for drugs. He last attended the violence prevention program on July 10, 2015, however. Father had therapeutic visitation with the children twice a month after his release from custody. The therapist reported the visits were going well, but the great aunt and great uncle complained the children suffered from nightmares and tended to act out after the visits. Father was working two jobs but had difficulty finding housing due to his criminal history. He was initially staying with relatives, but in November 2015 he started renting a room in a sober living house, a converted garage, and Mother moved in with him.

At the six-month review hearing in September 2015, the court found Mother had made no progress toward alleviating the causes that necessitated the children's placement in foster care, while Father had made partial progress. It ordered reunification services continued. In October 2015, Father was referred to a domestic violence program but failed to attend. That same month the social worker instructed him to attend substance abuse classes three times a week and to drug test twice a week. He did not go to the classes but did test negatively numerous times.

The twelve-month review hearing was scheduled for October 29, 2015, and the Agency recommended termination of services. The parents contested that recommendation, and the hearing was continued to January 2016, when substantial testimony was taken. The 12-month hearing was not concluded until March 30, 2016, which was past the 18-month mark, at which time the court terminated reunification services and set a hearing under section 366.26 for July 25, 2016.4

On July 22, 2016, Father filed a petition in juvenile court under section 388 seeking return of the children to him and reinstatement of family maintenance services based on (1) completion of a drug treatment program; (2) completion of 52 weeks of domestic violence classes; (3) consistently clean drug tests; and (4) having bonded with the children. On July 25, 2016, the court summarily denied the section 388 petition on grounds that Father had not demonstrated changed circumstances and proceeded with the hearing under section 366.26.

After considering the social worker's report and hearing testimony from Father and the social worker, the court terminated the parental rights of both parents and selected adoption as the permanent plan for both boys, orders with which the boys' attorney concurred. The juvenile court did not articulate its reasoning in detail.

II. DISCUSSION

Father claims the court erroneously failed to find a beneficial parental relationship as a basis for refusing to terminate his parental rights. (§ 366.26, subd. (c)(1)(B)(i); In re Laura H. (1992) 8 Cal.App.4th 1689, 1697 [§ 366.26, subd. (c)(1) expresses the "Legislature's recognition that a plan other than adoption may be appropriate and less detrimental to the rights of both parent and child"].) He seeks reversal of the order terminating his parental rights and a remand to the trial court with direction to select a permanent plan that less drastically cuts him off from his children. Mother supports this argument on Father's behalf but does not argue that the beneficial relationship exception applies to her personally. She does argue, however, that if we reinstate Father's parental rights, we must also reinstate her parental rights, as the court was not authorized to terminate one parent's rights alone unless that parent was the sole surviving parent, which is not true here. (Rule 5.725(a)(1); In re Mary G. (2007) 151 Cal.App.4th 184, 208; In re Dejohn B. (2000) 84 Cal.App.4th 100, 110.) We agree with Mother's last point. Hence, both appeals turn on whether Father qualified for the beneficial parental relationship exception.

Section 366.26, subdivision (c)(1) provides, in pertinent part, "If the court determines, based on the assessment provided . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." Thus, adoption is clearly mandated as the preferable permanent plan for a child who cannot be returned to the natural parents. (§ 366.26, subd. (b)(1); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Use of the word "shall" indicates, if the court finds the child adoptable, it must terminate parental rights unless it finds a "compelling reason" that termination would be detrimental to the child due to one of six circumstances. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Accordingly, once reunification services are terminated, "the decision to terminate parental rights at the section 366.26 hearing is `relatively automatic' if the child is going to be adopted." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) It is only in "`an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.'" (In re J.C. (2014) 226 Cal.App.4th 503, 533 (J.C.).) And once the Agency shows a child is likely to be adopted, the burden shifts to the parent to show by a preponderance of the evidence that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (Id. at pp. 528-529; Jasmine D., at p. 1350; In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).)

The statutory exception that Father seeks to apply is section 366.26, subdivision (c)(1)(B)(i): "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Father did consistently visit with the children twice monthly during the dependency, including while he was incarcerated. The Agency does not dispute this prong of Father's showing.

But on the second prong—the benefit to the children of continuing their relationship with him—Father's showing was less convincing. A beneficial parent-child relationship under the statute 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 other words, 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord, J.C., supra, 226 Cal.App.4th at pp. 528-529; Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1349.)

To establish the exception under section 366.26, subdivision (c)(1)(B)(i), "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; see also, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418; J.C., supra, 226 Cal.App.4th at p. 529; Jasmine D., supra, 78 Cal.App.4th at p. 1350.) And showing "some" benefit to the child is not enough (In re Breanna S. (2017) 8 Cal.App.5th 636, 646; In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.)), for every parent-child contact will "confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court implicitly found the benefit to the boys from continuing a relationship with Father did not outweigh the benefits of adoption, or in other words, there was no "compelling reason" to decline to terminate parental rights to avoid a "detrimental" impact on the children. (§ 366.26, subd. (c)(1)(B).)

Because reunification services had been terminated, the juvenile court was required to be guided by the children's best interests, not Father's or the family's. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309; Angel B., supra, 97 Cal.App.4th at p. 464.) Nor was Father's continuing compliance with his case plan the focus of the hearing. We commend Father on his steady employment, efforts at sobriety, clean drug tests, regular visitation, and progress with parenting skills. But this was a sibling group with one child under age three at the time of initial removal, which triggered a shorter time limit on reunification services and made the need for permanency more urgent. (§§ 361.5, subd. (a)(1)(C), 366.21, subd. (e); Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027.) We find no error in the court's ruling.

The trend in recent cases has been to employ a hybrid standard of review on appeal, using the substantial evidence standard to review the issue of the existence of a beneficial parental relationship and the abuse of discretion standard to decide whether the court erred in finding no compelling reason to depart from the legislatively preferred plan of adoption. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300-1301; In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) Put otherwise, the substantial evidence standard applies to findings of historical fact and the abuse of discretion standard to qualitative judgments arrived at by weighing and balancing. A ruling adverse to Father on either prong would be upheld under any arguably applicable standard of review.5

The factors to be considered in assessing the strength of the parent-child bond include the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, the child's particular needs, and whether the child has any particular needs that can be met by the parent, but not by the prospective adoptive family. (Angel B., supra, 97 Cal.App.4th at pp. 466-468; see also Autumn H., supra, 27 Cal.App.4th at pp. 575-576; Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.) The boys here were five and three when the parents' rights were terminated, and they had been out of their parents' custody for nearly two years, which was a substantial portion of their lives. When in their parents' custody, they had witnessed domestic violence damaging enough that their own behaviors and mental health were affected.

True, Father was consistent in visitation, his visits with the boys went well, and his parenting skills improved over time. But in assessing the strength of the bond, the juvenile court was entitled to credit reports that, following the visits, the brothers suffered from nightmares and were hard to settle down. Visitation remained supervised throughout the dependency because Father had difficulty setting limits. The child welfare worker had observed visitation and testified that, although Father and his sons had a friendly relationship, it was not a parent-child relationship. The brothers did not seem particularly upset when visitation ended, and they looked to their prospective adoptive parents for comfort. Thus, there was substantial evidence to support a finding that Father did not occupy a true parental role in the boys' lives, or at least that the bond was not very important to the boys' well-being.

Moreover, no evidence was presented that Father was able to meet any of the boys' needs that their prospective adoptive parents could not meet. In fact, it was the great aunt and great uncle who advocated for the children in the therapeutic and educational settings. And the boys' behavior, which had been problematic at the beginning of the dependency, had improved under the prospective adoptive parents' care, including apparent improvement in mental health issues.

But even if Father did have a meaningful parental relationship with his sons, the court did not abuse its discretion in ascribing to it less weight than the security and sense of belonging the boys would obtain by being adopted. (See Anthony B., supra, 239 Cal.App.4th at pp. 396-397.) "The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Although Father obviously loves his sons, the court did not abuse its discretion in deciding his relationship with them was not so vital to their well-being as to constitute a "compelling reason" to choose a permanent plan other than adoption. (§ 366.26, subd. (c)(1)(B).) This is especially true because the prospective adoptive parents, with whom the boys were well-bonded, were not interested in a guardianship and wanted to discontinue parental visits after the adoption, in part because of recent conflict with Father.6 The juvenile court decided the benefit of a stable adoptive family was not outweighed by any benefit the boys would derive from a continuing relationship with Father. That conclusion was neither irrational nor unsupported. Upholding it also relieves us of any need to discuss Mother's appeal further.

III. DISPOSITION

The orders of July 25, 2016, terminating Father's and Mother's parental rights and selecting adoption as the permanent plan are affirmed.

Ruvolo, P.J. and Reardon, J., concurs.

FootNotes


1. Subsequent references to rules are to the California Rules of Court.
2. Undesignated statutory references are to the Welfare and Institutions Code. References to subdivisions without section designation are to subdivisions of section 300.
3. Mother's interaction with the children is irrelevant to the issues before us. Suffice it to say she had drug and alcohol problems, problems with the law, no stable home, and had been inconsistent in visiting the boys.
4. Both parents initially filed notices of intent to file a writ petition under rule 8.452. Mother's counsel ultimately filed a no-merit letter, and Father never followed through with filing a timely petition. We dismissed both cases on June 29, 2016.
5. Some courts apply a substantial evidence standard (Zachary G., supra, 77 Cal.App.4th at p. 809; Autumn H., supra, 27 Cal.App.4th at p. 576); others, abuse of discretion (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; Jasmine D., supra, 78 Cal.App.4th at p. 1351). Still others, incorporating the two strands of authority, hold the decision encompasses two separate determinations and apply a hybrid standard of review, as described in the text. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) The practical differences among the articulated standards are not significant. The ultimate question is whether "`"`under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.'"'" (Jasmine D., at p. 1351.)
6. In June 2016, as the hearing under section 366.26 neared, the paternal great aunt and great uncle told the social worker Father had been leaving voice mail, sending text messages, and posting Facebook messages they viewed as threatening or harassing. These included threats by Father to show up at their home, saying he had "nothing to lose." The caregivers no longer felt comfortable supervising visits between the parents and the children.

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