San Diego County Health & Human Services Agency v. Anthony B.

Opinion

Anthony B. (Father) appeals a juvenile court order terminating his parental rights to the minor, Anthony B. (Anthony), and choosing adoption as the appropriate permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code unless noted.)

At the August 2013 six-month review hearing, the juvenile court ordered six more months of services and unsupervised visits for Father. Father remained in a relationship with Mother and continued to reside with her. It was a risk for Mother to be present during Father’s unsupervised visits because of her severe mental health conditions and history of aggressive behavior. The Agency created structured unsupervised visits because Father needed some assistance with Anthony’s medical conditions. Father started unsupervised visits in October 2013 and continued acting appropriately and lovingly toward Anthony.

In December 2013, Father was kicked out of his residential hotel “for no reason” and moved to interim housing inappropriate for Anthony to stay in overnight. He also lost his job. The Agency recognized that these events were out of Father’s control and found that Father had been following through with everything that was required of him during this time. Due to this, the Agency requested a continuance of three months so Father could begin overnight visits. The juvenile court reviewed the Agency’s findings and set an 18-month permanency review hearing for April 2014.

Father obtained a new job and appropriate housing. He continued to have appropriate supervised and unsupervised visits with Anthony. The court continued the April 2014 permanency review hearing to July 16, 2014, so Father could have time to begin a 60-day trial visit. Father’s first overnight visit was May 2, 2014. However, Father was found intoxicated while having Anthony for an overnight visit on May 20, 2014. In response, the Agency filed a petition to return Father to supervised visits. Father was discharged from his housing after he was found intoxicated a second time. He failed to show up for a drug test on July 7, 2014. Father continued acting appropriately and lovingly toward Anthony at supervised visits.

At the 18-month permanency review hearing, the Agency requested the court terminate services and set a section 366.26 for Anthony. By August 2014, Anthony’s dependency case had lasted 22 months and Father was still struggling with sobriety, continuing a relationship with Mother, and unable to provide a safe and stable environment for Anthony to live.

At a supervised visit on August 13, 2014, Father answered his cell phone, ignoring the minor, and smelled of alcohol. Anthony cried and reached for the door. Father again smelled of alcohol on his August 20, 2014 visit. Anthony’s caregiver reported the visits between Father and Anthony were traumatic for Anthony, who would consistently have night terrors after each visit. Father

B. Anthony’s Section 366.26 Trial

The juvenile court held a section 366.26 trial on February 18, 2015. The court received the Agency’s reports and the social worker’s curriculum vitae into evidence without objection. The Agency presented evidence that Anthony was thriving under the care of prospective adoptive parents and that they provided him a stable, suitable, and loving home. Neither parent presented any affirmative defenses. Father’s counsel asked the court to apply the beneficial parental exception to adoption. However, the court found Anthony adoptable by clear and convincing evidence and that Father had failed to establish the existence of a parent-child bond sufficient to invoke the statutory exception to adoption. The court acknowledged that although Father’s visitation had “generally been of good nature,” it had not been “substantial.” The court terminated parental rights and implemented a permanent plan of adoption for Anthony.

DISCUSSION

On appeal, Father does not argue Anthony is not likely to be adopted. Rather, he claims he carried his burden at trial of showing, by a preponderance of the evidence, that it would be detrimental to terminate his parental rights because the beneficial parental relationship exception in section 366.26, subdivision (c)(1)(B)(i) applies. (In re C.F. (2011) 193 Cal.App.4th 549 , 553-554 [ 121 Cal.Rptr.3d 881 ].) On appeal, he claims there is no substantial evidence to support the court’s contrary ruling.

APPLICABLE STANDARDS

At a section 366.26 permanency planning hearing, the juvenile court determines a permanent plan of care for a dependent child, which may

We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P. (2012) 203 Cal.App.4th 614 , 621-622 [ 137 Cal.Rptr.3d 494 ]; In re Bailey J. (2010) 189 Cal.App.4th 1308 , 1314-1315 [ 117 Cal.Rptr.3d 568 ].)

VISITATION PRONG

If the court determines a child is adoptable (as Anthony is), the parent bears the burden of showing that the termination of parental rights would be detrimental under one of the exceptions listed in section 366.26 subdivision (c)(1). (In re S.B., supra, 164 Cal.App.4th at p. 297.) Father asserts he meets the first prong of the parental benefit exception because he “maintained regular visitation and contact with the child” within the meaning of section 366.26 subdivision (c)(l)(B)(i). However, the court found Father’s visits, while generally of good nature, had not been substantial. We determine

“Sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption.” (In re C.F., supra, 193 Cal.App.4th at p. 554.) The type of parent-child relationship sufficient to derail the statutory preference for adoption is one in which “regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Such relationship “arises from day-to-day interaction, companionship and shared experiences.” (Ibid.)

While Father’s visitation with Anthony was consistent and positive during a previous period of time, during the five months preceding the section 366.26 trial Father’s visitation was, at best, sporadic. This does not amount to the regular contact and visitation intended by the Legislature. (§ 366.26, subd. (c)(l)(B)(i); In re Elizabeth M. (1997) 52 Cal.App.4th 318 , 324 [ 60 Cal.Rptr.2d 557 ].) Father was intoxicated while visiting Anthony once on an overnight visit and twice in August 2014 during supervised visits. These visitations were not the type that would have developed a significant or positive emotional attachment between Father and Anthony. Based on these facts, we conclude substantial evidence supports the court’s determination that Father did not meet his burden of establishing the first prong of the parental benefit exception.

Ill

SUBSTANTIAL BENEFIT PRONG

The issue here is not whether there was a bond between Father and Anthony. The question is whether that relationship remained so significant and compelling in Anthony’s life that the benefit of preserving it outweighed the stability and benefits of adoption. The “ ‘benefit’ ” necessary to trigger this exception requires that “ ‘the relationship promotes the well-being of the

Father contends the beneficial parental relationship exception should apply here. He argues the juvenile court erred or abused its discretion by choosing adoption as the permanent plan over guardianship or long-term foster care. However, this parental benefit exception only applies where the parent has demonstrated that the benefits to the child in continuing the parental relationship will outweigh the benefits of permanence through adoption. This is not such an extraordinary case, such as where an older child has formed an enduring bond with a parent despite the parent’s shortcomings, and where it would be harmful to the child to interfere with that enduring bond. (See, e.g., In re Scott B., supra, 188 Cal.App.4th at p. 471.)

Here, Father has not demonstrated any likelihood that he will be able to take custody of Anthony within any reasonable time or that alternative placements would be preferable. The evidence shows whatever positive emotional relationship previously developing between Father and Anthony over the first 18 months of Anthony’s life diminished after Father went nearly five months without visiting or contacting Anthony. The court found Father’s visitation was not the type that would have cemented a parent-child bond as required by law. Evidence was presented that Anthony was benefitting from his placement with prospective adoptive parents, who provided him a stable, suitable, and loving home. The court concluded the potential benefits of adoption were not outweighed by any benefit from maintaining Father’s presumed parent status. (See In re Cliffton B. (2000) 81 Cal.App.4th 415 , 424 [ 96 Cal.Rptr.2d 778 ] [balancing test applies].) Therefore, substantial evidence supports the court’s finding that Father did not satisfy the second prong of the beneficial parent-child relationship exception. For these reasons, the juvenile court did not err or abuse its discretion in ruling the parental benefit exception to adoption was not applicable here. (§ 366.26, subd. (c)(l)(B)(i).)

The order is affirmed.

McIntyre, J., and Aaron, J., concurred.