NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Evan M. (the father) appeals from a November 16, 2016 order terminating his parental rights. He argues the juvenile court should have applied the parent-child relationship exception pursuant to Welfare and Institutions Code
II. PROCEDURAL HISTORY
On May 21, 2013, the Department of Children and Family Services (the department) filed a section 300 petition on behalf of four-month-old Evan M., Jr. The petition alleged the mother was a current abuser of heroin, codeine, morphine, opiates, hydrocodone, hydromorphone and prescription medication.
On September 16, 2013, the juvenile court sustained the petition under section 300, subdivision (b). The child was declared a dependent of the court and removed from the parents' custody. Under their case plans, the parents were ordered to attend parenting classes and individual counseling. In addition, the mother was required to participate in a drug and alcohol treatment program, a 12-step program, and weekly random or on demand drug testing. The father was to submit to three random or on demand drug tests. If any drug test was missed or positive, the father was required to attend a drug treatment program with random testing. The parents were granted monitored visits for three times per week for three hours each visit. In January 2014, the department liberalized the parents' visitation to unmonitored visits.
At the April 7, 2015 contested 12-month review hearing, the juvenile court found the parents were not in compliance with their case plans and terminated family reunification services. The juvenile court explained: "The court finds parents have not made significant progress in resolving the problems that led to the child's removal from the home, and that they have not demonstrated the capacity and ability both to complete the objectives of the treatment plan and to provide for the child's safety, protection, physical and emotional well being, and special needs." The juvenile court terminated the parents' overnight and weekend visits. The parents were granted monitored visitation to be monitored by the maternal grandmother or paternal grandfather.
On September 30, 2016, the parents and paternal great aunt Patricia N. filed separate section 388 petitions. In her section 388 petition, Patricia requested reinstatement of reunification services for the parents with the child being placed in Patricia's "guardianship if need be." Patricia argued that the requested order would benefit the child because he would be among blood relatives. On October 4, 2016, the juvenile court set a hearing for the three section 388 petitions. At the November 16, 2016 hearing, the juvenile court denied the section 388 petitions, finding the best interest of the child would not be promoted by the proposed change of order.
At the contested section 366.26 hearing held on November 16, 2016, the juvenile court received various reports into evidence and heard testimony from the parents. The juvenile court rejected the parents' argument that the beneficial parent-child relationship exception applied. The juvenile court reasoned, "Based on father's own testimony in which he did not know the services Evan was receiving or even his current school, based on mother's testimony, while the court understands her love for her child and that she visits him once a week and snuggles, this interaction does not raise to the level of someone who's been actively parenting and working with Evan to develop his skills." The juvenile court determined it was in the child's best interest to remain with his prospective adoptive parents. The juvenile court found the child would likely be adopted by clear and convincing evidence and terminated parental rights.
At the time of detention in May 2013, the child was placed with paternal great aunt Patricia. On June 26, 2013, the juvenile court ordered the child's continued placement with Patricia. During this period, the parents visited the child every day for three to seven hours. The parents bathed, fed and cared for the baby. The visits were monitored by Patricia and the maternal grandmother. In January 2014, the department liberalized visitation and allowed the parents to have unmonitored visits with the child.
On March 13, 2014, the child was placed with the maternal grandmother because of changes in Patricia's work schedule. Between September 2013 and March 2014, the parents regularly visited the child. Weekday visits were at least two hours while weekend visits were up to six hours. During visitation, the parents were appropriately responsive to the child's needs. From June through November 2014, the parents had daily visits with the child, including some overnight visits, at the maternal grandmother's home.
On April 3, 2015, the department reported the parents had failed to comply with the court-ordered services. The mother had not informed the department of her arrest on October 27, 2014 for possession of heroin. When asked about the mother's arrest, the father stated he did not believe there was an issue. Further, the department reported the mother had submitted an unsigned drug program progress letter. The program informed the department the letter had not been written by any of its staff. The department recommended termination of family reunification services and monitored visitation for the parents because of: the mother's arrest; her failure to disclose the arrest; her non-compliance with court-ordered services; her "apparent falsification of documents"; and the father's complacency. On April 7, 2015, the juvenile court terminated family reunification services and ordered the parents' visitation revert back to monitored visits.
In June 2015, the child was diagnosed with global developmental delay with autistic tendencies by the regional center. In October 2015, the maternal grandmother indicated she could no longer care for the child because of his extensive and ongoing regional center appointments. The department reported after family reunification services were terminated, the parents made no attempts to schedule visits with the maternal grandmother. However, the parents were residing with the paternal grandfather and had monitored visits with the child on Sundays for 2-3 hours when the maternal grandmother brought the boy over to the paternal grandfather's home. The department requested a continuance of three months to assess the maternal aunt and uncle living in Nevada for adoption placement. On December 8, 2015, Nevada denied the request for a foster home study of the maternal aunt and uncle because they did not cooperate with the process.
In December 2015, a paternal cousin expressed interest in adopting the child. However, the paternal cousin later stated she could not adopt the child because of his special needs. The paternal cousin did not know of any other relatives who would be able to provide the child with a permanent home.
In February 2016, the department social worker met with the maternal grandmother and paternal grandfather to discuss joint legal guardianship of the child. But the department concluded joint legal guardianship would not work because the maternal grandmother and paternal grandfather were not able to provide the child with a permanent home. The maternal grandmother felt her job did not allow her to care full time for the child given his special needs. Neither the maternal grandmother nor the paternal grandfather knew of any other family members who could provide the child with a permanent home.
In April 2016, the department reported the parents had moved out of the paternal grandfather's home in January 2016. The department also discovered that as of January 2016, the parents had not had any monitored visits with the child or even contact with the maternal grandmother and paternal grandfather. The maternal grandmother remained the child's caregiver. However, the maternal grandmother continued to state she was unable to provide the child with a permanent home because of her age and job responsibilities. The paternal grandfather was concerned he would not be able to care for the child as a legal guardian because of the paternal grandfather's age and health conditions. On April 5, 2016, the juvenile court ordered the department to evaluate the maternal grandmother and paternal grandfather for co-guardianship of the child. The department reported co-guardianship would not work because the maternal grandmother and paternal grandfather had repeatedly stated they could not provide the child with permanent care.
On May 25, 2016, the child had his first pre-placement visit with the prospective adoptive parents, Mr. and Mrs. O. The prospective adoptive parents were well versed on the child's special needs and wanted to adopt him. They were open and willing to allow the child to have continued contact with the maternal grandmother and paternal grandfather after adoption. The maternal grandmother attended the pre-placement visits with the child. She liked the prospective adoptive parents and thought they would be good parents for Evan Jr. The child appeared comfortable with the prospective adoptive parents during the visits.
On August 15, 2016, the child was placed with the prospective adoptive parents. The child did well at the homes of the maternal grandmother and the prospective adoptive parents. Evan Jr. had night terrors that were resolved when the maternal grandmother purchased a device that soothed him when he was asleep. He could speak simple words and had fewer tantrums, but still periodically had crying fits. Mr. and Mrs. O met Evan Jr.'s physical, developmental and emotional needs and he had adjusted well in their home. Both the maternal grandmother and paternal grandfather felt Mr. and Mrs. O were best suited to meet the child's needs. They enjoyed working together with Mr. and Mrs. O to make the transition smooth for the child and accepted the prospective adoptive parents as members of their own family. Mr. and Mrs. O wanted to provide the child with stability and love and were willing to commit to meeting his needs through adoption.
The October 4, 2016 status review report stated the parents had little contact with the department. The parents had monitored visits with Evan Jr. when the child visited with the paternal grandfather and interacted appropriately with the child during those occasions. But after visits, the paternal grandfather believed "the parents revert back to their old lifestyles (drug usage) where they continue to make choices that would place [the child's] safety in jeopardy."
At an October 4, 2016 hearing, the child's counsel requested the father's visits be terminated because they were detrimental to the child. According to the foster parents and maternal grandmother, the child's development regressed during the father's visits. The child's counsel stated the child had "a melt down and was hitting himself" at the last visit with the father. The juvenile court terminated visitation for the father at the hearing.
On November 8, 2016, a department social worker visited the child at Mr. and Mrs. O's home. The child was receiving speech and occupational therapies, sensory integration work, an enrichment program that occurred four times a week, and specialized gymnastics classes. In addition, the child attended a school program five days a week through his individualized education program. Since being placed with the prospective adoptive parents, the child had made great progress in the following areas: expressive and receptive communication; self-help skills; increased eye contact; sleeping (he no longer had night terrors); gross and fine motor skills; increased patience and frustration tolerance; social skills and affection (he sought out affection and proximity to Mr. and Mrs. O); and "increased expressions of joy and happiness." The prospective adoptive parents were paying out of pocket for services not offered by the regional center. They had an approved home study and were committed to adopting the child. The maternal grandmother strongly supported the child remaining in the prospective adoptive home and was concerned his progress would be hindered if removed from the home.
In response to the section 388 petitions, the department filed a report recommending denial of the petitions. It reported the parents had about four years to comply with court-ordered services but had not resolved their case issues. Although there were some visits in September and October 2016, the parents did not seem to understand the child's special needs and how autism affected him. The department reported there were periods of time when visits were consistent; however, once visits were unmonitored, the visits became more inconsistent.
Concerning Patricia's section 388 petition, the department noted that the child was removed from Patricia's home at her request because she could no longer care for him. Also while the child was placed with the maternal grandmother for a six month period, she only visited him once.
The department stated it would be in the child's best interest to have him remain in the current placement. The section 388 report explains: "[T]he Department feels that . . . Paternal Great Aunt may not be the best option as she will only provide [the child] with a less permanent plan of Legal Guardianship as opposed to adoption with a family that has demonstrated their commitment to Evan and their resourcefulness to get him what he needs. In addition, [maternal grandmother], who knows Evan very well and is invested in his well-being, has stated her grave concerns if Evan is removed from his current home. [Maternal grandmother] speaks very highly of the prospective adoptive parents and of how much Evan has progressed since being in their home (they have sought out specialized services for Evan, they have adjusted their work schedules to be available for Evan and his various appointments, advocated for him with his school setting and [individualized education program], etc.)." The section 388 report adds, "Mr. and Mrs. O [have] made great efforts in ensuring that Evan is getting services to meet his special needs and feels that mother and father's involvement is detrimental to Evan's progress, especially since mother and father [have] not provided Evan with services nor fully understand what Evan is going through."
At the section 388 petition hearing, the paternal great aunt Patricia stated she did not give up the child to the maternal grandmother. Patricia said the maternal grandmother lived closer to the babysitter so the maternal grandmother "chose to take him" because it was more convenient to transport the child to his babysitter. Patricia indicated she had visited the child at his various placements. She requested placement of the child in her home and stated she would meet his special needs. The juvenile court denied the parents' and Patricia's section 388 petitions.
At the section 366.26 hearing, the father testified the child has autism, global development delay and night terrors. The child could not speak and liked to chew on plastic toys and a water bottle. The father attended about three dozen doctor's appointments for the child from 2013 to early summer of 2016. The father attended one appointment for Evan Jr.'s autism after the child's diagnosis. As evidence, the father submitted a sleep journal in which he detailed the child's night terrors and other sleep issues. The father kept a sleep journal while sleeping in the same room as Evan Jr. when he had unmonitored overnight visits with the child at the paternal grandfather's home.
The father testified he had unmonitored visits with the child until September 2016. The father stated: "I would take him to the park daily. I would take him on walks, sometimes up to 10 times a day. Because of his autism and special needs, he would have meltdowns, which the best way to stop him from crying and having a terrible time and attempting to fall into stimming behavior, the best way to stop him was just to take him on a walk. And I would take him to the park upwards of five times a day by myself, just me and him." The father's last overnight visit with the child occurred in early August 2016. The father claimed the grandparents allowed him to have unmonitored visits with child after visitation reverted to monitored visits in April 2015. He testified no social worker contacted him after reunification services were terminated concerning visitation. The father admitted his unmonitored visits after April 2015 were "unofficial" visits that were not authorized by the juvenile court.
The father believed he could respond to Evan Jr.'s needs because of his bond with the child. The father testified, "I can see his meltdowns coming, and I can anticipate them and stop them by showing him . . ., by helping him with his sensory issues. He has sensory overstimulation issues where sounds and sights, those are some of the triggers for his meltdowns." But the father admitted he did not know the services Evan Jr. was receiving or the school the child was attending since placement with the prospective adoptive parents. He stated, "I'm unaware of anything that has been going on for the last two months with him. [The prospective adoptive parents] don't share that information."
The father believed Evan Jr. would benefit from continued visitation because the child is happy when he sees the father. The father testified, "He comes running up to me and that's what's made this couple of months so—this last two months so hard because I know that just with me being there for him to help calm him down, to take him on walks, to do the routines that we've had for years, to continue that would help him grow as a person."
A. Parent-Child Relationship Exception
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53; In re Marilyn H. (1993) 5 Cal.4th 295, 304.) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).) Whenever the court finds `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).)" (In re Celine R., supra, 31 Cal.4th at p. 53.)
One exception to adoption is the parent-child relationship exception. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); In re J.C. (2014) 226 Cal.App.4th 503, 528.) This exception is set forth in section 366.26, subdivision (c)(1)(B)(i) which states: "[T]he court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The father has the burden of proving his relationship with the child would outweigh the well-being gained in a permanent home with adoptive parents. (Anthony B., supra, 239 Cal.App.4th at pp. 396-397; In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
In determining the parental relationship exception, the court considers "`"[t]he age of the child, the portion of the child's life spent in the parent's custody, the `positive' and `negative' effect of interaction between parent and child, and the child's particular needs."'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643; accord, In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).) "A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption." (Breanna S., supra, 8 Cal.App.5th at p. 646.) Furthermore, evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (Breanna S., supra, 8 Cal.App.5th at p. 646; In re J.C., supra, 226 Cal.App.4th at p. 529.) The father also must show he occupies a parental role in the child's life. (Breanna S., supra, 8 Cal.App.5th at p. 646; In re G.B., supra, 227 Cal.App.4th at p. 1165.)
Appellate courts have adopted differing standards of review for the parental relationship exception determination. Some courts review for substantial evidence. (In re G.B., supra, 227 Cal.App.4th at p. 1165; In re S.B. (2008) 164 Cal.App.4th 289, 297-298; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Other courts have applied an abuse of discretion standard of review. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
More recently, courts have adopted both the substantial evidence and abuse of discretion standards of review. (Anthony B., supra, 239 Cal.App.4th at p. 395; In re J.C., supra, 226 Cal.App.4th at p. 530; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) In evaluating the juvenile court's determination as to the factual issue of the existence of a beneficial parental relationship, these courts review for substantial evidence. (Anthony B., supra, 239 Cal.App.4th at p. 395; In re J.C., supra, 226 Cal.App.4th at p. 530; In re K.P., supra, 203 Cal.App.4th at p. 622; In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) But whether termination of the parental relationship would be detrimental to the child as weighed against the benefits of adoption is reviewed for abuse of discretion. (Anthony B., supra, 239 Cal.App.4th at p. 395; In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P., supra, 203 Cal.App.4th at p. 622; In re Bailey J., supra, 189 Cal.App.4th at p. 1315.) No error occurred under any of these standards of review.
The father argues his parental rights should not be terminated because of the parent-child relationship exception. He claims he consistently visited and had extensive contact with the child. Between September 2013 and April 2015, he had frequent unmonitored visits, including overnight and weekend visits, with the child. The father visited for at least two hours per day during weekdays and up to six hours on the weekends. After family reunification services were terminated in April 2015, the father made no attempt to schedule visits with the maternal grandmother. However, the father was living with the paternal grandfather and had monitored visits with the child on Sundays for 2-3 hours when the maternal grandmother brought the boy over to the paternal grandfather's home. But in January 2016, the father no longer lived with the paternal grandfather and did not visit the child. Some time after January 2016, the father resided with the paternal grandfather again and had weekly monitored visits at the paternal grandfather's home. After the child was placed with his prospective adoptive parents on August 15, 2016, the father did not visit the minor until September 30, 2016. On October 4, 2016, the juvenile court terminated the father's visitation after finding the visits were detrimental to the child.
At the section 366.26 hearing, the father testified he had unmonitored visits with the child until September 2016. The father admitted his unmonitored visits after April 2015 were "unofficial" visits that were not authorized by the juvenile court. He cannot now seek to obtain a benefit from his willful violation of the juvenile court's visitation order. (See Civ. Code, § 3517 ["No one can take advantage of his own wrong."].) Further, there is substantial evidence to support an inferred finding that the father did not maintain regular visitation and contact. After reunification services terminated in April 2015, the father only had visits with Evan Jr. on Sundays when the child visited the paternal grandfather at his home. After Evan Jr. was placed with his prospective adoptive parents on August 15, 2016, the father did not visit until six weeks later. The juvenile court found the father's visits were detrimental to the child and visitation was terminated on October 4, 2016.
Even assuming the father has regularly visited Evan Jr., he has not shown his relationship with the child outweighs the well-being gained in a permanent home with adoptive parents. (Anthony B., supra, 239 Cal.App.4th at pp. 396-397; In re G.B., supra, 227 Cal.App.4th at p. 1165.) The child was only eight months old when he was removed from the father's custody and the father never regained custody of Evan Jr. The child was almost four years old when the father's parental rights were terminated in November 2016. From May 2013 to November 2014, the father visited the child daily. During visits, the father bathed, fed and cared for the baby and was responsive to the child's needs. But after April 2015, the father only saw Evan Jr. for 2-3 hours on Sundays when the maternal grandmother dropped off the child at the paternal grandfather's home. The paternal grandfather described the father as a "friend-type figure" to the child. According to the paternal grandfather, the father can comfort Evan Jr. but cannot raise the child because of the father's lifestyle, which includes drug use, and the choices he makes that would place the child's safety in jeopardy.
After placement with the prospective adoptive parents on August 15, 2016, the father did not visit the child until September 30, 2016. But the father's visits were terminated on October 4, 2016 because they were detrimental to the child. According to the foster parents and maternal grandmother, the child's development regressed during the father's visits. The child's counsel stated the child had "a meltdown" and hit himself at the last visit with the father.
Furthermore, the father has not shown he occupies a parental role in the child's life. The father admits he does not know the name of the school the child attends and the services the boy receives for global developmental delay and autism. The father attended only one appointment for Evan Jr.'s autism after the child's diagnosis. There is no evidence the father attended any other therapy appointments with Evan Jr. or sought out services for the child's special needs.
By contrast, the prospective adoptive parents have met Evan Jr.'s physical, development and emotional needs. Mr. and Mrs. O have an approved home study and are committed to adopting the child. The prospective adoptive parents sought out specialized services for Evan Jr., adjusted their work schedules to accommodate the child's appointments, and advocated for him with his school. The child was receiving speech and occupational therapies, sensory integration work, an enrichment program that occurred four times a week, and specialized gymnastics classes. Mr. and Mrs. O paid out of pocket for services not offered by the regional center. In addition, the child attended a school program five days a week through his individualized education program. Since being placed with the prospective adoptive parents, the child had made great developmental progress and was able to speak simple words. In addition, the child showed affection and "increased expressions of joy and happiness" while with Mr. and Mrs. O. Both the maternal grandmother and paternal grandfather felt the prospective adoptive parents were best suited to meet the child's needs. The maternal grandmother strongly supported the child remaining in the prospective adoptive home and was concerned his progress would be hindered if removed from the home. Ample evidence supports the juvenile court's finding that the father's relationship with the child does not outweigh the well-being gained through the child's adoption by Mr. and Mrs. O.
B. Relative Placement Preference Under Section 361.3
The father contends the juvenile court failed to apply the relative placement preference in section 361.3 when the child was placed with the prospective adoptive parents in August 2016. When a child is removed from the parents' physical custody, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. . . ." (§ 361.3, subd. (a).) "The statute acknowledges . . . that the court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 321.)
The father lacks standing to challenge the relative placement preference issue under section 361.3. "A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." (In re K.C. (2011) 52 Cal.4th 231, 238.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point `the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "Once a parent's reunification services have been terminated, the parent has no standing to appeal relative placement preference issues." (In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460; accord, Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.) At the time the father's reunification services were terminated in April 2015, the child was placed with the maternal grandmother. It was not until August 15, 2016 that the child was placed with the prospective adoptive parents. Because the father's reunification services terminated in April 2015, he does not have standing to challenge the subsequent placement of the child with the prospective adoptive parents in August 2016 pursuant to section 361.3.
The November 16, 2016 order terminating parental rights is affirmed.
KRIEGLER, Acting P.J. BAKER, J., concurs.