California Court of Appeal Feb 4, 2015 No. D066154Unpublished
Filed 2/4/15 In re Josiah W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOSIAH W., a Person Coming Under the Juvenile Court Law. D066154 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1123) Plaintiff and Respondent,
v.
DARYL R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Daryl R. (Father) appeals a juvenile court judgment terminating his
presumed parental rights to the minor, Josiah W., and choosing adoption as the
appropriate permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory
references are to this code unless noted.) When Josiah (now 3 years of age) was a year
and a half old, respondent San Diego County Health and Human Services Agency (the
Agency) responded to a police report of suspected child endangerment by offering Father
voluntary services for his drug problems for three months and, later, when this
There is some debate in recent case law on the proper approach in review of a
decision about the beneficial parental relationship exception. In In re J.C. (2014) 226
Cal.App.4th 503, the court applied the substantial evidence standard of review to the
factual issues of whether the parent maintained regular visitation and contact with the
child and whether the parent proved he or she had a beneficial parental relationship with
the child. However, as to the weighing test, in which the juvenile court balances the
parent-child relationship against the benefits the child would derive from adoption, the
abuse of discretion test applied to this " ' " 'quintessentially discretionary decision.' " ' "
(Id. at p. 531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Certainly, there is a discretionary component to the trial court's determination of a
"benefit from continuing the relationship" under the terms of section 366.26, subdivision
(c)(1)(B)(i). Based on the respective showings, the court must balance "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." (Autumn H., supra, 27
Cal.App.4th at p. 575.) "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." (Ibid.) The court must find "a compelling reason for determining that
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termination would be detrimental to the child," (§ 366.26, subd. (c)(1)(B)(i)), due to the
parent's regular visitation and contact with the child, coupled with benefit to the child
from continuing the relationship. (In re C.F., supra, 193 Cal.App.4th 549, 553-554.)
The weight of authority still applies the substantial evidence test to appeals from
decisions about the beneficial parental relationship exception. (Autumn H., supra, 27
Cal.App.4th 567, 575-577.) In doing so, the appellate court does not redetermine the
credibility of witnesses or reweigh the evidence presented. (In re L.Y.L., supra, 101
Cal.App.4th at p. 947.)
In any event, the discretionary determinations made by the trial court must be
supported by the evidence, to avoid any conclusion on review that they were arbitrary,
capricious, or patently absurd. (See In re Stephanie M. (1994) 7 Ca1.4th 295, 318-319.)
II
APPLICABLE STANDARDS; VISITATION PRONG
If the court determines a child is adoptable (as Josiah 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)(B). (In re S.B., supra (2008)
164 Cal.App.4th 289, 297.) As described in Autumn H., the beneficial relationship
exception must be examined on a case-by-case basis, taking into account the many
variables that can affect the parent-child relationship. (Autumn H., supra, 27
Cal.App.4th. at pp. 575-576; In re J.C., supra, 226 Cal.App.4th 503, 532.)
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Here, it is not disputed that Father "maintained regular visitation and contact with
the child," to the best of his ability, within the meaning of section 366.26, subdivision
(c)(1)(B)(i). The trial court acknowledged this factor was satisfied and we accept it here.
We accordingly evaluate the record under the standards for determining whether
the trial court had a substantial basis to conclude that there would be no substantial,
overriding benefit to Josiah in continuing a parental relationship with Father.
(Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "The 'benefit' necessary to trigger
this exception has been judicially construed to mean, 'the relationship 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.' " (In re J.C.,
supra, 226 Cal.App.4th at pp. 528-529; see In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1347-1348.)
We thus inquire whether the evidence showed that even without day-to-day
contact and interaction, this relationship was so "strong and beneficial" that "termination
of parental rights would be detrimental to the child." (In re C.F., supra, 193 Cal.App.4th
549, 555, fn. 5.) More than "some measure of benefit" must be conferred through the
relationship with the parent. (Id. at pp. 558-559.) The parent must show he or she
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occupies a parental role in the child's life, resulting in a significant, positive, emotional
attachment between child and parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
III
ANALYSIS: SUBSTANTIAL BENEFIT PRONG
The issue here is not whether there was a bond between Father and Josiah. The
question is whether that relationship remained so significant and compelling in Josiah's
life that the benefit of preserving it must outweigh the stability and benefit of adoption.
These proceedings addressed the issue of substantial or incidental benefit from this
parent-child relationship in several ways. First, Father argues his difficulty in complying
with his case plan should not be dispositive, because he was able to keep visiting and to
maintain a positive relationship with Josiah, who greeted him in a happy, affectionate
way and called him Daddy. The court gave some attention to Father's testimony that
Josiah started out calling him Mom or Dad, and sometimes still did so, because Father
had played both roles for him as a baby. The record also showed that in general, Josiah
was a friendly and outgoing child to social workers and the CASA, and to other relatives.
"Many toddlers are cuddly, effusively loving, and affectionate." (In re J.C., supra, 226
Cal.App.4th 503, 533.) As of a November 2013 status review report, Josiah's placement
was going well, and he was receiving speech and individual therapy. He continued to do
well out of Father's custody. The focus should be on whether Father was able to resume
the role of a parent toward Josiah. (Id. at pp. 528-529.)
In the ruling, the court stated that Father's ongoing substance abuse problems, as
shown by his treatment programs not completed and his positive drug tests, were
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significantly related to his inability to obtain unsupervised visitation and to otherwise
play a larger role in Josiah's life. Although Father's visitation was regular and of a
familial nature, he was unable to make any substantial progress with his case plan that
would have addressed the issues that gave rise to the need for the dependency
proceeding, such as providing a safe home environment. He did not display behavioral
changes that showed he had taken responsibility for the negative impacts of his lifestyle
on a young child like Josiah, and he had not made significant progress in growing into the
parental role. Even though the social worker consistently acknowledged that there was
strength in the relationship between Father and Josiah, and Father's testimony and his
own father's statements to the court raised the same issue, Father did not show there
would be detriment from severing the relationship, in light of the showing about the
problems to which Josiah would very likely be exposed in his care.
Next, Father points to evidence that Josiah had some difficulty in separating from
him at the end of visits, and that Father sought to have reunification services reinstated
when Josiah seemed to be having adjustment problems during visitation, at around the
time he was moving to the home of the prospective foster mother (April 2014). After
Father lost custody in February 2013, Josiah was moved between several foster homes
until late May 2013, when he was placed in the home of Ms. G., where he benefited from
speech and individual therapy, over about a year. The relevant question for the court was
evaluating the quality of this particular parent-child relationship, given that Josiah had
been out of Father's custody for that time period. " 'Interaction between [a] natural parent
and child will always confer some incidental benefit to the child. . . . ' " (In re C.F.,
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supra, 193 Cal.App.4th at p. 555.) The issue was whether Father occupied a parental role
and it would be detrimental to Josiah if that role were terminated. (Ibid.)
Certainly, there are different explanations for why a child in foster care might have
difficulties with parental visitation at different times, and Father cannot show that Josiah
was having severe separation anxiety that was particularly related to Father, as opposed
to arising from other stability-related problems. On a few visitation dates, long after
reunification services had been terminated and shortly after the foster placement was
made, Josiah seemed to be resisting getting in the car to visit Father, possibly because
that would mean leaving the foster mother behind. The trial court had the responsibility
of analyzing the evidence about all the circumstances in Josiah's life, and there is
substantial evidence to support a conclusion that the problems Josiah was having with
going to and from visitation were not attributable to the strength of his bond with Father.
Because Father continues to contend that the beneficial parental relationship
exception should apply here, he further argues that the juvenile court erred or abused its
discretion by choosing adoption as the permanent plan, over guardianship or long term
foster care. Around the time the hearing was held, Father was pursuing a modification
petition under section 388 and was trying to find other relatives with whom Josiah could
be placed, but none of those efforts by Father or the Agency was successful. At the
permanency stage, the bond the child shares with the parent and the harm that might arise
from terminating parental rights must be balanced against what is to be gained in a
permanent stable home, and "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
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re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This parental benefit exception only
exists where the parent has demonstrated there are such benefits to the child in continuing
the parental relationship as 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. (2010)
188 Cal.App.4th 452, 471.)
On this record, Father could not demonstrate any likelihood that he will be able to
take custody of Josiah within any reasonable time, or that there are other alternative
placements that would be preferable. The trial court acknowledged that 15 years of foster
care for then three-year-old Josiah did not constitute a predictable, stable plan that would
effectively promote his well-being. The court concluded that 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 [balancing test applies].)
Substantial evidence supports this finding that the second prong of the beneficial parent-
child relationship exception was not met. For all of these reasons, the juvenile court did
not err or abuse its discretion by ruling the parental benefit exception to adoption was not
applicable here. (§ 366.26, subd. (c)(1)(B)(i).)
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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
21
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not err in terminating parental rights because the father failed to demonstrate that the beneficial parent-child relationship exception outweighed the benefits of adoption for the child.
Issues
Whether the juvenile court erred in finding that the beneficial parent-child relationship exception to adoption did not apply.
Whether the juvenile court erred in failing to select an alternative permanency plan such as guardianship or long-term foster care.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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”
“The court then found that there was not such a substantial emotional attachment to Father that would cause harm to Josiah if it were terminated.”