Opinion
B299330
02-18-2020
In re SABRINA G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GERMAN G. et al., Defendants and Appellants, SABRINA G., a Minor, Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant German G. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Evelyn G. Marissa Coffey, under appointment by the Court of Appeal, for Minor and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK86534) APPEAL from an order of the Superior Court of Los Angeles County, Rashida A. Adams, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant German G. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Evelyn G. Marissa Coffey, under appointment by the Court of Appeal, for Minor and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
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German G. (Father), Evelyn G. (Mother), and then six-year-old Sabrina G. appeal from the July 11, 2019 order terminating Father's and Mother's parental rights under Welfare and Institutions Code section 366.26. Father contends the juvenile court erred in terminating his parental rights because the beneficial parental relationship exception to adoption applies. (§ 366.26, subd. (c)(1)(B)(i).) Mother and Sabrina join in Father's arguments. We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sabrina's Prior Dependency Case
On April 3, 2013 the juvenile court declared then six-month-old Sabrina a dependent of the court under section 300, subdivisions (b)(1) and (j). The court sustained the allegation that Sabrina's older half siblings, Evan G. and Jocelyn E., were dependents of the court because Mother was unable to provide care due to her mental and emotional problems. The court also sustained the allegation Mother previously left Evan and Jocelyn home alone late at night with no adult supervision. The court found true Mother engaged in domestic violence by hitting Father multiple times and damaging his home and car during angry outbursts. Father failed to protect Sabrina by not reporting the domestic violence and continuing to associate with Mother. On July 15, 2014 the juvenile court terminated jurisdiction, awarding Father sole legal and physical custody of Sabrina. B. Referral and Investigation
On October 29, 2016 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging severe neglect and physical abuse of then four-year-old Sabrina. Neighbors contacted the police after Father jumped off the second floor balcony staircase while holding Sabrina. One neighbor reported hearing a "thump" and seeing Father on top of Sabrina, who was lying on the ground beneath the balcony. When Downey Police Officer Estrada arrived, he saw a neighbor holding Sabrina, and Father was still lying on the ground. Neighbors stated they had taken several knives away from Father as he lay on the ground. Officer Estrada heard Father repeatedly saying, "I want to kill myself."
Father told Downey Police Officer Larini that he and Sabrina were walking up the stairs to their apartment when she fell down the stairs. Father jumped head-first down the flight of stairs to try to prevent her from getting hurt. Father said he was carrying the knives in his backpack, and they fell out when he fell down the stairs. Father admitted he drank three beers.
Officer Larini placed Father on a psychiatric hold and transported him to the emergency room. During the car ride, Father requested that Officer Larini shoot him. Upon his admission to the hospital, Father tested positive for THC (marijuana) and had a blood alcohol level of 0.242 percent.
Sabrina told Officer Estrada that Father was carrying her, they fell, and Father hurt her. Sabrina's treating physician stated Sabrina's injuries indicated she fell face first onto a hard surface or ground from a distance. Sabrina's injuries included a skull fracture on the left side of her head with possible hemorrhage, swollen brain soft tissue, swollen upper lip, bleeding gums, contusions, abrasions, and hematomas. The social worker observed approximately half of Sabrina's face appeared red with skin abrasions, but there were no marks or abrasions on Sabrina's palms or arms.
The social worker observed Father had five to seven small cuts on the back of his hands and several dime-sized abrasions on his left leg. Father denied he was drunk, suicidal, or depressed. He also denied he had jumped off the balcony with Sabrina in his arms. Father told the social worker he drank two beers after Sabrina went to bed around 8:00 p.m. At some point Father noticed Sabrina was outside the apartment door on the walkway. Father stated, "[M]y baby was by the edge of the stairs and somehow she lost her footing on [the] stairs. I saw her fall down the stairs, hitting the back of her head on the stairs a couple of times and I literally threw myself down the stairs on top of her to protect her." Father claimed he cradled Sabrina's face to his chest as they fell. When the social worker noted Father's blood alcohol level was high, Father admitted he drank four beers. C. Petition and Detention
On November 2, 2016 the Department filed a petition alleging Sabrina came within the jurisdiction of the juvenile court under section 300, subdivisions (a), (b)(1), (i), and (j). The petition alleged half siblings Evan and Jocelyn were dependents of the court because of Mother's physical abuse of Evan, substance abuse, and mental and emotional problems. Count b-1 alleged Father was under the influence of marijuana and alcohol while Sabrina was in his care, and his substance abuse endangered Sabrina's physical health and safety. Count b-2 alleged Father had mental and emotional problems, including depression and suicidal and homicidal ideations and attempts, which rendered him incapable of providing regular care for Sabrina. Count b-3 alleged Father placed Sabrina in a detrimental and endangering situation and she suffered injuries when he jumped off the balcony while carrying her, in an attempt to commit suicide.
At the November 2, 2016 detention hearing, the juvenile court removed Sabrina from Mother and Father's custody. At the subsequent arraignment hearing, the court ordered monitored visits for Father. On December 9, 2016 the Department placed Sabrina in the home of her maternal aunt, Kristyann C. D. Father's Visits Prior to the Jurisdiction Hearing
Kristyann expressed concerns about Father's visits and phone calls. Father left threatening messages on Kristyann's voicemail and cursed at her during phone calls. During a December 2016 visit, Father placed Sabrina on top of the table and walked away.
During a January 13, 2017 visit monitored by Kristyann, Father screamed at Kristyann, "Leave me alone with my daughter!" When Sabrina wanted to get on a children's ride, Father said, "No. Do you want to die or get killed?!" Later, Father started swinging Sabrina around by her arm and shaking her. After Sabrina said, "[o]w, daddy, ow," Father stopped. At the end of the visit Father insisted on giving Kristyann's mother-in-law eye patches for Sabrina to wear. When the mother-in-law declined, Father said, "Just take them, because you don't know, I might kill myself tomorrow, or I might die." On the way home Sabrina screamed, "I don't wanna go with my daddy. He's going to kill all of us!" According to Kristyann, since that visit, Sabrina would say, "Kill, kill, kill. My daddy's going to kill all of us." Kristyann informed the Department she no longer felt comfortable monitoring Father's visits. E. Jurisdiction and Disposition Hearings
At the March 1, 2017 jurisdiction hearing, the juvenile court sustained the allegations of the complaint. At the April 18, 2017 contested disposition hearing, the court declared Sabrina a dependent of the court under section 300, subdivisions (b)(1) and (j). The court removed Sabrina from Mother and Father's physical custody and ordered Sabrina to remain placed with Kristyann. The court granted monitored visits for Mother and Father with the Department having discretion to liberalize visitation. The court ordered Father to participate in a full drug and alcohol program with aftercare, random or on-demand drug and alcohol testing every other week, parenting classes, and individual counseling with a licensed therapist to address case issues. F. Six-month Status Review Reports and Hearing
The October 24, 2017 six-month status review report stated Father was participating in the court-ordered programs and counseling and had negative drug and alcohol tests. During monitored visits, Father brought snacks and games for Sabrina and was attentive to her. Sabrina was very excited and happy to see him, and she appeared comfortable during the visits. On May 30, 2017 the juvenile court granted Father unmonitored visits. Sabrina indicated she had fun with Father during his August and September 2017 unmonitored visits.
During a November 5, 2017 monitored visit with Mother, Sabrina stated a man named Poncho touched her private area over her clothes. Father told the social worker, "Sabrina says Poncho babysits her." Father added, "At [c]ourt, mom told me that Sabrina told her that Poncho stuck his thumb in her private." Sabrina told the social worker that Poncho touched her when she was one year old. But Sabrina told Kristyann that Mother and Father told her to say that Poncho touched her.
On December 8, 2017 the Department received a referral alleging Father physically and sexually abused Sabrina. The caller observed Sabrina had a small scratch on her right cheek and bloodshot eyes after she returned from a December 3 visit with Father. Sabrina told Kristyann that Father had choked her. On December 7, 2017 Sabrina's babysitter heard Sabrina tell her cousin Noah that she "put[s] her pants down and put[s] her butt on her dad's face." During a December 13 interview, Sabrina told the social worker that she slept in the same bed as Father during her overnight visit with him. When the social worker asked about physical and sexual abuse, Sabrina responded, "My dad doesn't want me to say nothing. My dad doesn't want no one to talk about him, so I'm not. Cause I know because he says that all the time when I'm walking with him."
During a January 10, 2018 forensics interview, Sabrina denied any physical or sexual abuse by Father. But Sabrina disclosed Mother instructed Sabrina to say she had been sexually abused by Poncho so Sabrina could return to Mother and Father. During a January 8, 2018 monitored visit, Father videorecorded Sabrina and asked her if Kristyann was hitting her. Father told Sabrina not to believe Kristyann because she was a liar. The Department concluded the allegations of physical and sexual abuse were inconclusive, but Mother and Father emotionally abused Sabrina by coaching her to make allegations of abuse.
On February 5, 2018 Father sent the social worker harassing text messages starting at 2:20 a.m. At a February 7 family engagement meeting, Father became "irate," started shaking, and angrily complained about the social workers' mistreatment of him. Father stated the Department was making him sick. He removed a jar half-filled with bloody urine from his backpack and placed it on the table. He ignored repeated requests to put the jar away, and the social workers ended the meeting.
On February 7, 2018 Kristyann gave the Department a seven-day notice to remove Sabrina from her home. Kristyann reported Mother had assaulted Kristyann's sister, mistaking her for Kristyann. Kristyann was also "exhausted with being falsely accused of not supposedly caring for the child." On February 13, 2018 the Department placed Sabrina in the home of foster parents, Juan V. and Clementina A.
At the February 21, 2018 six-month status review hearing, the juvenile court terminated Mother's family reunification services, but it found Father was in partial compliance with his case plan and continued his services. G. Reports for the Permanency Review Hearing
The May 1, 2018 18-month status review report stated Juan and Clementina were committed to meeting Sabrina's needs and had provided consistent care and supervision. They wanted to provide permanency for Sabrina.
In an April 24, 2018 letter, clinical psychologist David Middleton stated Father had been in treatment with him since June 21, 2017. Dr. Middleton wrote, ". . . I can see no evidence of current suicidal or homicidal ideation which might place the minor Sabrina . . . at risk in her father's care. [Father] emphatically denies that he ever attempted to harm his daughter. . . . [¶] The conclusion of my evaluation is that [Father] does not suffer from a mental disorder requiring further treatment. His current level of functioning demonstrates residual issues with authority figures and guardedness in his interactions with [Department] workers, but he does not represent a threat of harm to himself or others."
Sabrina's monitors expressed concerns about Father's inappropriate behavior with Sabrina. Father continued to interrogate Sabrina about her placement and videotape her during some visits. During an April 11 visit, Father began kissing and nibbling on Sabrina's ear while brushing her hair. Sabrina giggled and said, "[T]hat tickled my booty." At the same visit, Sabrina heard a toy playing a children's song, and she started singing, "If you're happy and you know it pull down your pants." During an April 18 visit, Father did not watch over Sabrina or play with her because he was in a conversation with another parent. Father did not notice Sabrina climbing over the tables and concrete flower beds, which the monitor had instructed Sabrina to stay away from for her safety.
During a June 20, 2018 monitored visit, Father accused a male social worker of acting inappropriately with a young child in front of the child's mother. Sabrina's social worker cancelled the visit after Father repeated his accusations, ignored her warning, and called her a liar. Sabrina's social worker and the monitor walked Sabrina, who was crying, to the monitor's car to drive Sabrina home. As the monitor was backing her car up, Father sped his car up behind her, causing the monitor to press hard on her brakes to avoid an accident.
On August 1, 2018 Dr. Middleton provided an updated report in response to the social worker's questions about Father's treatment. Dr. Middleton opined Father was not depressed, homicidal, or suicidal. He found Father had impulse control problems, but Father's "history and personality contribute to his belief that this verbally aggressive interactive style is often effective." Dr. Middleton added, "[Father's] default style of conflict management does not appear to have changed very much." Dr. Middleton recommended termination of treatment, stating, ". . . I did not believe further progress could be made in the area of anger management because [Father] believed his frustration with 'the system' was justified and rational. I wish he would have learned to better manage his expression of feelings." H. Permanency Review Hearing
At the contested 18-month permanency review hearing (§ 366.22) on August 29, 2018, the juvenile court acknowledged Father had participated in his case plan, but noted "his behavior has not changed significantly despite participation in services." The court added, "The evidence indicates that on numerous occasions his behavior has been barely controlled, inappropriate, or otherwise concerning, which prevented him from moving beyond monitored visits after the unmonitored visits were limited." The court terminated Father's family reunification services and set a section 366.26 hearing.
I. Reports for the Selection and Implementation Hearing
The November 20, 2018 relative placement report stated Sabrina was emotionally bonded to her foster parents and other children in their home. Sabrina had been living with her foster parents for nine months, and they wanted to adopt her. In a November 2, 2018 interview, Sabrina said she understood what adoption meant, and she looked forward to being adopted by her foster parents. However on November 16, 2018 Sabrina stated, "I don't want to live here. Don't tell her. I just miss my dad." But when Sabrina was asked where she wanted to live if she could not live with Father, she answered, "Here." Later Sabrina said she wanted to live with her cousins because her girl cousin "really wants a sister." Sabrina added, "Then my dad can visit me there. My dad said that. That's the only reason I want to live there."
Father wanted Sabrina placed with paternal aunt Alma T. and her family if Sabrina could not live with Father. The social worker determined it would not be in Sabrina's best interests to remove her from her current foster home. The report concluded, "Sabrina is doing well in school and has been working consistently with her therapist to address trauma. Moving Sabrina from her current school and therapist would yet again disrupt her routine and her attachment to her caregivers, school friends, and mental health service providers."
The section 366.26 report stated Sabrina appeared happy in her foster home during a December 11, 2018 interview. Her foster parents continued to provide consistent care and supervision, and Sabrina remained safe in their home. Father had consistent weekly two-hour monitored visits with Sabrina. The child enjoyed the visits and was bonded with Father. The report noted, "Father has a history of inappropriate behavior during visits . . . [,] [but] as of recently, his behavior has tempered . . . ." However, the report concluded that although Father had participated in multiple services over the prior three-year period (including the time before the balcony incident), Father "does not seem to be apply[ing] a behavioral or mental change to himself." The Department recommended termination of parental rights, "[b]ased on the on-going concerns regarding child Sabrina's health, safety, care, and well-being . . . ."
The December 21, 2018 addendum report stated the foster parents were committed to being Sabrina's adoptive parents and were capable of meeting all her needs. They had ensured Sabrina's emotional and medical needs were met on a consistent and ongoing basis and understood the responsibilities of adoption. The foster parents were open to maintaining contact with birth relatives as long as the contact remained appropriate and in Sabrina's best interests. But the foster parents were not open to a post-adoption contact agreement. J. Bonding Study
On March 1, 2019, at Father's request, the juvenile court ordered a bonding study pursuant to Evidence Code section 730 evaluation (730 evaluation). The court ordered the expert to address whether a bond existed between Sabrina and Father, and if there was a bond, the extent to which severing the parental relationship would impact Sabrina's psychological well-being.
Evidence Code section 730 authorizes the court to appoint an expert to perform an evaluation and report back to the court.
On April 5, 2019 forensic psychologist Velia Inez Gonzalez, who was appointed by the court to conduct the bonding study, informed the social worker of her concerns with Father's conduct in contacting her. Dr. Gonzalez said, "Father has been very persistent. Called me way before I got the order. Very pushy; wanting to have the visits as soon as possible. He wanted the bonding visits at the park. His attitude and behavior is very concerning." Dr. Gonzalez wanted to conduct the bonding study during a regular monitored visit because she did not feel safe conducting the evaluation at her office.
On April 11, 2019 Dr. Gonzalez conducted the bonding study based on her observation of a two-hour monitored visit with Father, Alma and her family, and Sabrina. Dr. Gonzalez also interviewed Father and Sabrina and reviewed the May 2018 and February 2019 status reports, the section 366.26 report, and Sabrina's health records. Dr. Gonzalez noted Sabrina's health records showed Sabrina had five mental health episodes since November 17, 2015, and she had been diagnosed with adjustment disorder with anxiety.
Dr. Gonzalez reported Father adamantly denied he attempted suicide. Father maintained Sabrina tripped on his foot and began to fall down the stairs, so he dove to protect her head and they fell down together. Father told Dr. Gonzalez he had feelings of depression and anxiety. He admitted he had a history of impulsive behavior but said he had improved and learned to control himself. Dr. Gonzalez concluded Father had severe, recurrent, major depressive disorder and "[s]uffers from depression, anxiety, stress, and insomnia triggered by separation from" Sabrina.
During the April 11, 2019 visit, Dr. Gonzalez observed Sabrina smiling, laughing, and engaging in age-appropriate activities. Father was attentive towards Sabrina, and she appeared happy and relaxed in his presence. Sabrina referred to her cousin Carolina as "sister" several times during the visit. Sabrina said, "I want to live with Carolina and my dad can visit me there or she can come live with me and my dad." Sabrina told Dr. Gonzalez she loved Father and looked forward to seeing him each week.
Dr. Gonzalez concluded, "Sabrina and her father appear to have a secure, strong, and healthy bond with one another. She seems safe and secure in his presence. Sabrina exhibits signs of self-worth, competence, pride, and trust. It is evident that she has a close and caring relationship with her father. [Father] appears to be committed to his daughter and her well-being. He validates her thoughts and feelings, and provides his daughter with comfort and support. Sabrina also has a positive connection with her aunt, uncle, and cousins. Her relationship with her extended family seems strong and loving. Continuity of her secure attachments is important for her normal development. Severing her relationship with her father will affect the course of her emotional development. Separation is likely to lead to an increase in aggression, defiance, distress, anxiety, and/or depressive symptoms. Permanent separation can be psychologically damaging and negatively affect the quality of her future attachments due to feelings of abandonment, which lead[s] to lack of trust in others." Dr. Gonzalez recommended placement of Sabrina with her paternal aunt Alma, increased weekly visitation for Father, and reinstatement of Father's family reunification services. K. The Department's Report Recommending Termination of Parental Rights
In a May 29, 2019 last minute information for the court, the Department recommended against Sabrina's placement with Alma because of concerns about the ability of Alma and her family to enforce limits and protect Sabrina from Father. Sabrina had told the social worker that Father could visit her anytime he wanted if she lived with Alma and her family. The report also noted the concern expressed in the November 20, 2018 report that moving Sabrina from her current school and therapist would disrupt her routine and her attachment to her caregivers, school friends, and mental health providers. In addition, the Department did not recommend increased visitation because it would interfere with Sabrina's school and extracurricular activities. The report recounted Father's two-year history of behavioral problems, including yelling at the social workers and monitors and acting inappropriately with Sabrina.
The report also discussed the Department's concerns about Father's more recent visits, including several visits when Father did not consistently interact with Sabrina and a planned visit for which he did not show up, disappointing Sabrina. On April 3, 2019 Father brought food, books, and toys to the visit. After Sabrina ate some food, she watched videos on Father's cell phone. Looking serious, Father asked, "Sabrina, why you did not tell 'I love you' when you talked to me on phone? That made me sad." Father's seriousness scared Sabrina, and she started to cry.
The Department believed it would be in Sabrina's best interest to remain in her foster parents' home. The report stated, "Child Sabrina is thriving in the home and care of her caregivers. Sabrina participates in activities such as church, and was recently enrolled in softball. Sabrina reports feeling happy and safe in the home and care of the current caregivers. Sabrina is doing well in school and is bonded with the caregivers and the other children in the home. Child Sabrina calls her substitute caregiver[s] 'mom' and 'papa'. Sabrina's caregivers are committed to meeting the child Sabrina's needs and are committed to permanency in the form of [a]doption. The current caregivers are not interested in [l]egal [g]uardianship." The Department reported the foster parents' home was approved on February 25, 2016.
The report concluded the need for permanency outweighed the detriment of severing the relationship with Father, explaining, "The child Sabrina is six years old, and has had six placements, and spent a total of 56 months (or 4.66 years) in various placements. It is vital that Sabrina is provided permanency in the form of [a]doption. Legal [g]uardianship would provide the opportunity for further court intervention, should father file to reinstate custody. Due to father's lack of willingness to take responsibility for his actions, the Department has grave concerns regarding any possibility of Sabrina's return to his care. For example, father has told multiple versions and statements about what occurred the day he tried to kill himself and child Sabrina."
L. Selection and Implementation Hearing
At the July 11, 2019 selection and implementation hearing (§ 366.26), six-year-old Sabrina testified she was excited to see Father at the visits. During visits, they ate food and had fun playing with the toys and games Father brought with him. When asked what were her favorite things about Father, Sabrina responded, "Because he buys me toys, and he gives me food." Father and Sabrina used to do homework together, but they now just played during visits. Sabrina would miss Father and feel sad if she was unable to see him again. Sabrina testified she lived with Juan and Clementina, whom she called "mama" and "papa," and two other girls. She liked living with her foster family. Sabrina went to her foster parents when she felt sick or needed help with her homework.
The juvenile court found by clear and convincing evidence Sabrina was generally and specifically adoptable. The court ruled the beneficial parent-child relationship exception to adoption did not apply. The court found Father regularly and consistently visited Sabrina, and Father's relationship with Sabrina "may be beneficial to some degree." But the court found Father did not meet his burden to show that the benefits to Sabrina of maintaining the parental relationship outweighed the benefits of adoption. The court explained, "[Sabrina] has been out of Father's custody for a significant period of her life. [¶] After an initial case that was largely due to domestic violence between the parents, Father reunified with Sabrina only to have her removed again when he jumped from the balcony while holding her, which caused her severe injuries. [¶] Despite the father having the maximum amount of reunification services, his visits to date remain monitored. The visits are monitored due to the father's behavior, which for most of the pendency of the current case has been erratic, aggressive and inappropriate. [¶] The record is replete with examples of the father being inappropriate during visitation, such as attempting to coach Sabrina, being unable to focus on visits and instead getting into arguments with social workers or others. [¶] . . . [¶] On many occasions, the father could not or would not follow visitation guidelines and was inappropriate with Sabrina, specifically making inappropriate comments or being inappropriately affectionate on one occasion. [¶] Most recently, the social worker documented an incident when the father asked why, in a very serious manner, why Sabrina had not said she loved him when they spoke on the phone, which caused her to cry. [¶] The father has been either unwilling or unable to change his behavior for most of this case, which in turn prevented him from moving beyond monitored visits and developing a more natural relationship with Sabrina."
As to the bonding study, the court stated, "The court does find that the weight of the 730 evaluation is to some degree limited and that the evaluator observed one visit, which the court must compare with the litany of inappropriate visits which have been documented throughout the case. [¶] The court further notes that there is some inconsistency or omission in that the report appears to not acknowledge the evaluator's own personal experience with Father, . . . in which she herself felt unsafe by Father's behavior. [¶] Nonetheless, the court acknowledges that there is some form of bond."
The court added, "The benefits of adoption are significant. Adoption will provide Sabrina with permanence and stability. Counsel have mentioned several times her adjustment disorder, which to this court speaks to the need for the most permanent plan possible and stable plan possible. [¶] The current caregivers wished to adopt Sabrina. She has expressed a desire to be adopted. . . . She is again only six years old, and after several placements, there is evidence that she is attached to these caregivers."
The court rejected Father's and Sabrina's request for legal guardianship. The court explained, "The court again notes that it is only in exceptional circumstances that the court is to choose a plan other than adoption. Legal guardianship is a less favored plan because it does not provide the same level of permanence and stability. And the court must take note of the fact that the father and the mother have interfered with prior placements of Sabrina. [¶] The maternal aunt did not want placement of the child, relinquishing it due to Father's interference with that relationship." The court terminated Father's and Mother's parental rights and designated Sabrina's foster parents as her prospective adoptive parents.
Father, Mother, and Sabrina timely appealed.
DISCUSSION
A. Governing Law
"At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child." (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Breanna S. (2017) 8 Cal.App.5th 636, 645 (Breanna S.) ["The express purpose of a section 366.26 hearing is 'to provide stable, permanent homes' for dependent children."].) "If adoption is likely, the court is required to terminate parental rights, unless specified circumstances compel a finding that termination would be detrimental to the child." (In re S.B., at p. 532; accord, In re Celine R. (2003) 31 Cal.4th 45, 53 ["Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child."].)
"Section 366.26 requires the juvenile court to conduct a two-part inquiry at the selection and implementation hearing. First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. [Citations.] Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies." (Breanna S., supra, 8 Cal.App.5th at pp. 645-646, citing § 366.26, subd. (c)(1)(A) & (B); accord, In re Noah G. (2016) 247 Cal.App.4th 1292, 1300-1301; In re D.M. (2012) 205 Cal.App.4th 283, 290.)
The beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), "permits the court to order some other permanent plan if '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' The exception requires the parent to prove both that he or she has maintained regular visitation and that his or her relationship with the child '"'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.'"'" (Breanna S., supra, 8 Cal.App.5th at p. 646; accord, In re A.S. (2018) 28 Cal.App.5th 131, 153; In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
"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; accord, In re Marcelo B., supra, 209 Cal.App.4th at p. 643 ["'A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.'"].) "No matter how loving and frequent the contact, and notwithstanding the existence of an '"emotional bond'" with the child, '"the parents must show that they occupy 'a parental role' in the child's life."'" (Breanna S., at p. 646; accord, In re G.B. (2014) 227 Cal.App.4th 1147, 1165; In re K.P. (2012) 203 Cal.App.4th 614, 621.) "Factors to consider include '"'[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.'"'" (Breanna S., at p. 646; accord, In re G.B., at p. 1166.) "Moreover, '[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.'" (Breanna S., at p. 646; accord, In re G.B., at p. 1166; In re K.P., at p. 621.) B. Standard of Review
"The parent has the burden of proving the [beneficial parental relationship] exception applies." (Breanna S., supra, 8 Cal.App.5th at p. 646; accord, In re Grace P. (2017) 8 Cal.App.5th 605, 613; In re Noah G., supra, 247 Cal.App.4th at p. 1300.) "The court's decision a parent has not satisfied this burden may be based on any or all of the component determinations—whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes 'a compelling reason for determining that termination would be detrimental to the child.'" (Breanna S., at pp. 646-647, quoting § 366.26, subd. (c)(1)(B).) "When the juvenile court finds the parent has not maintained regular visitation or established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law." (Breanna S., at p. 647; accord, In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (Breanna S., at p. 647; In re K.P., supra, 203 Cal.App.4th at p. 622.) C. The Parents Failed To Establish Termination of Parental Rights Would Be Detrimental to Sabrina
The Supreme Court granted review in In re Caden C. (2019) 34 Cal.App.5th 87, 99, review granted July 24, 2019, S255839, on the following issues: "([1]) what standard governs appellate review of the beneficial parental relationship exception to adoption; and (2) whether a showing that a parent has made progress in addressing the issues that led to dependency is necessary to meet the beneficial parental relationship exception." --------
Mother, Father, and Sabrina challenge the juvenile court's termination of parental rights, arguing the beneficial parental relationship exception applies and termination of parental rights would be detrimental to Sabrina. They argue severing Sabrina's parental relationship with Father would exacerbate Sabrina's adjustment disorder and anxiety, relying on the findings in the bonding study that Father and Sabrina have a "secure, strong, and healthy bond" and separation would likely increase Sabrina's "defiance, distress, anxiety, and/or depressive symptoms." Father asserts the juvenile court instead should have reinstated reunification services or ordered a legal guardianship as the permanent plan. We conclude the juvenile court did not abuse its discretion in determining the possible detriment to Sabrina from termination of her relationship with Father did not outweigh the benefit achieved by the permanency of adoption. (Breanna S., supra, 8 Cal.App.5th at p. 647; In re K.P., supra, 203 Cal.App.4th at p. 622.)
At the time of the July 11, 2019 section 366.26 hearing, Sabrina was only six years old, but she already had six placements and spent more than four and a half years in various placements as a result of her two dependency cases. In the current dependency case, Sabrina has been out of Father's care for 32 months—since October 30, 2016. Father received over 18 months of reunification services, but his visitation remained monitored because of his inappropriate behavior during visits, including making angry outbursts directed at monitors and social workers; commenting about the case in front of Sabrina and videotaping her during visits; kissing and nibbling Sabrina's ear; and coaching Sabrina to make false abuse allegations against Kristyann while Sabrina was in her care. Father's therapist, Dr. Middleton, opined Father had impulse control problems, but no "further progress could be made in the area of anger management because [Father] believed his frustration with 'the system' was justified and rational."
Although Dr. Gonzalez opined separating Sabrina from Father was likely to have a negative psychological impact on Sabrina, Dr. Gonzalez did not assess Sabrina's bond with her foster family and whether it would be detrimental to remove her from them. Sabrina had lived with her foster parents since February 13, 2018 and thrived in their care. Sabrina testified she called her foster parents "mama" and "papa" and liked living with her foster family. Sabrina went to her foster parents when she felt sick or needed help with her homework. The Department reported Sabrina felt happy and safe in the foster home, was doing well in school, and bonded with her foster family. Her foster parents were committed to meeting her needs and wanted to adopt her. As the juvenile court noted, Sabrina's adjustment disorder "speaks to the need for the most permanent plan possible," which in this case was adoption by her foster parents with whom she has lived for the prior 17 months.
Father, Mother, and Sabrina argue the juvenile court should have selected legal guardianship as the permanent plan, rather than adoption. But under section 366.26, subdivision (b), the "order of preference" is for the juvenile court to select adoption and termination of parental rights before legal guardianship. (In re Celine R., supra, 31 Cal.4th at p. 53; In re J.F. (2011) 196 Cal.App.4th 321, 329 ["order of mandatory preference" is "adoption, guardianship, or placement in long-term foster care"]; M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1178 ["The legislative preference is 'for adoption over legal guardianship over long-term foster care.'"].)
Further, Sabrina's foster parents, who wanted to adopt her, were not interested in legal guardianship. And as noted by the juvenile court, legal guardianship does not provide permanency for Sabrina because Father and Mother interfered with Sabrina's prior placement with Kristyann, coaching Sabrina to make false allegations of abuse in an effort to regain custody. In a January 8, 2018 monitored visit, Father videorecorded Sabrina and asked her if Kristyann was hitting her. Father also told Sabrina not to believe Kristyann because she was a liar. According to Kristyann, Sabrina said Mother and Father told her to say that Poncho touched her. Kristyann refused to continue to care for Sabrina in part because she was "exhausted with being falsely accused of not supposedly caring for the child." Moreover, the only possible legal guardian was Alma, but the Department recommended against placement of Sabrina with Alma because it would require moving Sabrina to a new school and therapist, disrupting her routine and attachment to her foster parents, school friends, and mental health service providers. Under these circumstances, the juvenile court did not abuse its discretion in finding legal guardianship would not be in Sabrina's best interest.
DISPOSITION
The order terminating parental rights is affirmed.
FEUER, J. We concur:
ZELON, Acting P. J.
SEGAL, J.