Opinion
A169108
07-15-2024
In re N.H. and B.H., Persons Coming Under the Juvenile Court Law. v. R.M., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J2100247, J2100248
STREETER, J.
R.M. (Father) appeals from the juvenile court's order rejecting his request that it set a legal guardianship as the permanent plan for minors N.H. and B.H., currently ages 12 and 9 respectively, under the beneficial parent-child relationship exception to adoption in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).
Undesignated statutory references are to the Welfare and Institutions Code.
At the section 366.26 hearing (.26 hearing), the court terminated Father's parental rights, as well as those of the children's mother (Mother), and set adoption as the permanent plan for both children. On appeal, Father argues the court abused its discretion in rejecting his request because of his extensive, regular visits with the children, his positive parental bond with them, and their expressed desires to continue their relationship with him.
We only discuss Mother as necessary to evaluate Father's appeal because she is not a party to it.
Seeing no error, we affirm.
I. BACKGROUND
We have seen this case before. After the juvenile court terminated family reunification services and set a .26 hearing for both children, Father sought writ relief. We issued an opinion in October 2023 rejecting his writ petition. (R.M. v. Superior Court (Oct. 6, 2023, A168289 [nonpub. opn.] (R.M. I).)[ To set the stage here, we begin by quoting extensively from that opinion.
Respondent, the Contra Costa County Children and Family Services Bureau (Bureau), requests that we incorporate here our summary of the proceedings below stated in that opinion. Father has not opposed this request. We construe it as a request for judicial notice and grant it under Evidence Code sections 452, subdivision (d) and 459. (Lister v. Bowen (2013) 215 Cal.App.4th 319, 323, fn. 1; see also Cal. Rules of Court, rule 8.1115(b)(1) [unpublished opinion may be cited or relied on when it "is relevant under the doctrines of law of the case, res judicata, or collateral estoppel"].)
"A. Initial Removal and Detention
"[Mother] has a long history of substance abuse and mental health struggles, and an extensive criminal record, mostly for drug-related offenses. Until 2021, N.H. and B.H. were residing with Mother; Father lived separately. On May 24, 2021, the [Bureau], acting upon reports that Mother had left B.H. and N.H. at home unsupervised, filed a dependency petition alleging neglect, and removed the children from her custody.
"At the detention hearing in July 2021, Father appeared, represented by counsel. It was undisputed that Father is the biological father of N.H. As to B.H., Father told the court that he 'held out [B.H.] as his daughter, has supported [B.H.], has visited with her, and has a bond with her.' The court accepted those representations, and declared Father to be the presumed father of both N.H. and B.H.
" . . . Following the July 2021 detention hearing, the Bureau placed N.H. and B.H. together in Father's home, subject to a detailed safety plan.
"In a dispositional report in September 2021, [the] Bureau reported that Father . . . had taken steps to enroll in the parenting class required by his case plan, but had yet to enroll. And despite the drug testing requirement in his case plan, he said he was not yet testing because of a significant delay by the Bureau and the testing agency in processing a referral for testing.
"B. Placement With Father and Removal from his Custody
"Father's status as a presumed father of both of the children allowed him to take custody of B.H. without having to pass the Bureau's vetting process for non-family custody placements. According to the Bureau, the vetting process would have been problematic for him because, like Mother, he had an extensive criminal record, mostly for drug crimes. His roommate also had a criminal record.
"Father's most recent convictions were for possession of controlled substances for sale, possession of an assault weapon, and unlawful possession of ammunition. In 2016, these convictions resulted in a six-year prison term. During Mother's previous dependency proceeding, . . . Father was in prison, still serving that term. But by the time N.H. and B.H were removed from Mother's custody in May 2021, he was out of prison and had successfully completed a period of supervised release.
"The placement of N.H. and B.H. in Father's custody turned out to be brief. Under the court ordered case plan put in effect as a condition of the children's placement with him in July 2021, he was required to, among other things, 'participate in random drug testing,' 'refrain from using drugs/alcohol/non-prescription medication,' and 'allow no contact between [Mother] and children until approved by [the Bureau].'
"In October 2021, Bureau filed a subsequent petition under section 387 alleging that, shortly after taking custody, and in violation of the placement order, Father tested positive for methamphetamine use, had a 20-year history of drug use, and had allowed Mother to have access to N.H. and B.H. without obtaining the court's permission.
"According to the Bureau, 'the children have maintained well in the home with father. They have been attending school and completing homework. [Father] has been responsive to the needs of the children such as purchasing clothing, shoes, transporting to medical visits and ensuring they enjoy extra-curricular activities. The children have also [expressed] . . . their joy and satisfaction in their father's care.... Therefore [Father's] recent . . . positive [test] for illicit substances and failure to adhere to the safety plan was unexpected.'
"The children were removed from Father's custody at that point, and after a combined detention and jurisdictional/dispositional hearing on the subsequent petition, the court sustained the Bureau's allegations on Father's plea of no contest, placed the children with a foster care provider, and ordered that both parents receive family reunification services, with twice a week supervised visitation. Mother and Father were advised that 'they have until 7-25-22 to reunify' with the children.
"C. The Six-Month Status Review Report
"In the first status review report, prepared at the six-month mark in February 2022, the Bureau reported that Father was making good progress in meeting the requirements of his case plan, was trying hard to attend all of his allowed visits, and was having positive interactions with the children during visits. But from the outset there were signs of problems, mostly concerning drug usage and Mother's continuing erratic behavior.
"According to this initial status review report, 'Both parents have continued to struggle with their sobriety and despite the provision of services and their ostensible efforts, neither ha[d] made substantial progress in a way that demonstrates their ability to provide the children with a safe and nurturing environment.'
"Addressing Father's situation in particular, the Bureau stated that he had 'not demonstrated any clear insight into his own recovery needs.' Also, 'despite [Father's] assertion that he has demonstrated his ability to keep the children safe from the negative consequences of substance abuse, he has been largely unable to demonstrate . . . clear strategies to keep the children safe from their mother's behaviors.'
"D. The 12-Month Status Review Report
"The Bureau's twelve-month status review report in July 2022 noted only 'partial' compliance by Father with his case plan and only 'minimal' compliance by Mother with her case plan. The Bureau recommended that parents should be 'inform[ed] that if they are unable to resume custody of the children by the next review hearing, then the court will make a permanent plan for each child, which could include terminating their parental rights.'
"With respect to Father, the Bureau's overall assessment was still mixed. On the positive side, the Bureau reported, 'Since the last [review] hearing, the children's father . . . has made notable improvements in addressing the issues that necessitate child welfare intervention.' Despite some drug-testing no shows and positive results for ethanol in his blood, he demonstrated an acute awareness of his continuing need to demonstrate abstinence in order [to] eliminate any concerns about his 'past substance abuse creat[ing] significant risk to the children's health and safety.'
"Most significantly, the children began to show a change in attitude about wanting to be returned to Father's care. For example, their foster care provider 'noted an increase' in N.H.'s aggression and anger, and said he 'has been quite vocal in his assertion that he does not want to be returned to either parent.' N.H., typically a child who was 'quite taciturn' and reluctant to talk about "emotional issues," told the assigned social worker, Christopher J., that he felt no 'emotional attachment to his father especially in comparison to his . . . resource parents.'
"Father, on the other hand, seemed steadfast in his desire to earn the right to have the children returned to him. He 'was eager to demonstrate his ability to provide for the children's material needs,' and in an inspection of his home, the 'residence . . . was observed to be very clean, neatly and appropriately furnished, and fully stocked with plenty of food for the household.' The Bureau was impressed with the insights about parenting that Father demonstrated having learned in his family support services counseling sessions.
"But '[d]espite the relatively positive interaction with their parents during visits,' the Bureau reported that 'both children remain[ed] very firm in their respective assertions that they [did] not want to return to their parents' care and . . . much prefer[red] to remain in the care of their resource parents.' N.H., in particular, the Bureau reported, 'has been very expressive in describing his emotional attachment to his resource father.' He 'passionately' expressed that 'he feels valued and nurtured in ways he never experienced with his own father.'
"Father had also missed a number of his mandatory drug tests, something the court expressed significant concern about at the 12-month review hearing. The court took note of the Bureau's observation that it had not received any positive test reports since May 2022, and pointed out a number of more recent testing 'no shows.' The court recognized that the situation was a 'delicate' one, but expressed concern that the Bureau was not taking the 'no shows' more seriously and seemed inclined to 'fast track' unsupervised visits despite 'how the children are feeling.'
"Father took the position that he just needed more time with N.H. and B.H. He was 'quite insistent that he has not had sufficient opportunity to effectively bond with the children given the travel and time restrictions to which he must adhere' during unsupervised visits. Christopher J. was sympathetic to that perspective, and at that stage of its continuing review of the reunification process, the Bureau agreed. Its 12-month review report stated that Father 'appears justified in his frustrations about the slow progress of expanded visitation.'
"While acknowledging the court's concerns that things could 'backfire' and cause the children to pull away from Father if visitation time was increased too quickly, in the end the Bureau asked for-and the court granted-authority to increase Father's visitation time gradually, and eventually to begin allowing unsupervised visits. Pursuant to that authorization, in September of 2022 the Bureau began allowing unsupervised visits.
"E. The 18-Month Status Review Report
"In the 18-month status review report, prepared in November 2022, the Bureau reported that Mother had wholly failed to comply with the mental health and drug testing requirements of her case plan, and that her visits with the children had been 'inconsistent.' It recommended termination of any further reunification services to her. With respect to Father, however, the Bureau's assessment was more nuanced and ultimately favored giving him another six months of reunification services.
"The Bureau noted continued efforts by Father to develop a sufficiently strong paternal relationship with the children to warrant their return of custody to him. As of early November 2022, it reported, Father 'has been in full compliance with his visitation since the last hearing.' But the Bureau's overall assessment remained mixed, and there were continuing signs that Father was having trouble building his relationship with the children.
"Reiterating a concern stated in the 12-month review report 'about the lack of the children's emotional ties' to Father being 'a function of his lack of positive and consistent engagement with them during the time they were in his care,' in the 18-month review report the Bureau said that Father's engagement with the children during visits continued to be 'inconsistent.' According to a family therapist, the Bureau said, Father 'still does not present with the parental instincts that are conducive to enhancing his emotional bond' with them. The Bureau also reported that '[t]he children . . . remained adamant' about not wanting to continue visits with their father, as they do not feel any emotional connection to him.
"N.H. even reported that 'during a recent visit, [Father] pressured him to advise [Christopher J.] that he just wants to be returned to his father's care without having to continue with visitation. [N.H.] was quite clear in his assertion that [Father's] directive made him incredibly uncomfortable, especially since he prefers to remain with his current caregivers instead of being returned to his father's care.' If true, the Bureau stated, this incident was 'very troubling, particularly since [it] . . . would appear to be an attempt to circum[vent] the case plan.'
"The Bureau's bottom line view, however, once again in line with Father's perspective, was that reunification could still succeed and that Father just needed more time with the children. The Bureau 'readily acknowledge[d] the children's strong resistance to returning to their father's home,' but opined that this consistently demonstrated reticence by the children could be 'remedied through ongoing family counseling and individual therapy,' and was in itself 'not [a] sufficient reason to obviate continued reunification.'
" 'Despite the noted concerns,' the Bureau stated, Father has 'made significant and consistent progress over the past 18 months in addressing the substance abuse issues that warranted protective services, and there is a substantial probability that the children can be returned to his care by May 25, 2023'-24 months after their detention-'if services are extended to that date.'
"Accordingly, the Bureau recommended that the court find '[F]ather has demonstrated the capacity and ability both to complete the objectives of his [case] plan and to provide for the [children's] safety, protection, physical and emotional well-being and special needs.'
"F. N.H Runs Away and Accuses Father of Threatening Him
"Even with expanded opportunities for bonding in the fall of 2022, even with the generous stance toward Father's prospects for reunification that the Bureau took in its 18-month status review report, the circumstances surrounding Father's relationship with the children took a turn for the worse in the final weeks of 2022.
"During a Halloween overnight visit with Father, a visit both children resisted after expressing a preference to spend that holiday with their resource family, Father once again hung back and failed to engage with the children. '[B]oth of the children said that they had gone trick or treating . . ., but it was dad's girlfriend that actually took them from house to house, while [Father] kinda stood back.'
"A few weeks later, at an unsupervised visit in Father's home over Thanksgiving, there was a crisis. N.H. ran away and was found wandering miles away. He reported to the police officer who found him that he did not feel safe in Father's custody. As recorded in a police report, N.H. told the officer of discovering that Father was selling marijuana, and Father threatened to 'beat' him if he told anyone.
"At a supervised visit a few weeks later, in late December 2022, the emotional distance N.H. felt with Father was evident. By Christopher J.'s description, N.H. rebuffed an attempt by Father to show affection, 'was quite despondent during the visit and appeared to make concerted efforts to avoid engaging with [Father] throughout their interaction.'
"Father expressed empathy toward N.H. but seemed to be in denial about the authenticity of N.H.'s negative reaction to him at the late December 2022 visit. 'Although [Father] did not blame [N.H.] for the outcome of the visit, he did express his desire for [N.H.] to acknowledge that he was "coached" into running away and admit to being deliberately untruthful with his allegations ....'
" 'After [Father's] departure from the visit,' Christopher J. 'interviewed both children to process their visit with [Father], as well as their desired outcome for the dependency. [B.H.] was very confident and clear in her assertion that she wanted to "have relationships" with both of her parents,' 'but she does not believe that they can provide her with the safe and nurturing home environment she enjoys at her current resource home, where she would strongly prefer to remain.' And when Christopher J. asked N.H. 'about his desired outcome, he replied "same as her." '
"G. April 2023 Addendum Report and 18-Month Review Hearing
"The 18-month review hearing, initially set for November 10, 2022, was continued because Christopher J. fell ill and was unable to attend. He left the Bureau in early 2023, and another social worker was assigned to replace him on the case. In an addendum report filed prior to the commencement of the continued hearing in the Spring of 2023-a report signed by Christopher J. just before he left the Bureau's employ-the Bureau changed its position with respect to Father and recommended termination of reunification services.
"The report reads as follows: 'Although [Father] is not in agreement with the Bureau's recommendation to terminate services . . ., he does acknowledge and seems to understand the children's position. Specifically, he recognizes that his prolonged absence from their lives has affected their respective relationships .... Previously, the Bureau presented recommendations to extend services beyond 18 months .... However, further review of the [governing] statutes clarified that the circumstances of this dependency did not meet the legal basis upon which such an order could be made.'
"By this time, N.H. and B.H. had been placed in four foster homes .... Just before the 18-month review hearing began on April 27, 2023, the Bureau submitted an update memo advising the court that the children were 'do[ing] well in their current placement,' were 'engaging consistently in supportive educational services through their school,' and '[t]hrough support of current caregiver . . . have been able to see older sibling at a relative's home, which has also increased the interactions . . . [they] have with extended family.'
"The last person to speak before the court took the matter under submission was N.H.'s Court Appointed Special Advocate, Jeffrey B., who took no position on Father's request for additional reunification time. On N.H.'s behalf, he said, '[T]he biggest thing for . . . [N.H.] right now is to have stability.' '[S]ince I have known him, which is almost a year and a half, he has been in a variety of placements. Well, two, since I have known him, . . . and he is entering middle school at the end of this month, and I hope that he has some stability because he is a great kid, and he deserves that.'
" . . . Following a contested hearing, which took place in several sessions in February, April, June, and July 2023, upon an extensive record, the court accepted the Bureau's recommendation, terminated services for both parents, and scheduled a .26 hearing. The court denied Father's motion for a continuance of the .26 hearing so he could receive an additional period of up to 24 months of reunification services." (R.M. I, supra, A168289, fns. omitted.)
In our October 6, 2023 opinion, we held that the juvenile court did not err in denying Father's request for an expanded reunification period. We noted the juvenile court "specifically found that Father's inability to reunify with N.H. and B.H. within 18 months was no one's fault but his own" and concluded that finding was supported by substantial evidence. (R.M. I, supra, A168289.)
H. The Bureau's .26 Hearing Report Things have not changed in any substantial way since our decision in R.M. I.
Following the issuance of our October 6, 2023 opinion, proceedings below continued. In its .26 hearing report, the Bureau indicated the children were living in their latest resource home since September 23, 2022. N.H. was in good health, developmentally on track, showing signs of independence, displaying a level of parentification with younger children, including B.H., presenting as a quiet and reserved child, and liking everything about school. B.H. was doing well in school. Father had completed 77 of the 91 visits with the children offered to him, with five being canceled for reasons beyond his control.
The Bureau considered the children to be generally adoptable. They felt soothed and comforted by their resource parents, who wanted to adopt them and were "committed to providing a permanent, loving and stable home for them." N.H. felt safe and loved in their home, could express his feelings with them, and had no worries in their care, and he said he enjoyed living in an environment that was consistent and being part of a family. B.H. enjoyed her resource parents because they were kind to her and did many fun activities with her, and she felt safe in their home and had no worries. The Bureau characterized the relationship between the children and their resource parents as close and reciprocal.
The Bureau recommended that the court terminate Father's and Mother's parental rights and set adoption as the permanent plan for both children. It did not think continuing their relationship with Father outweighed the benefits of adoption, which included stability, permanence, diligent care, and love.
I. The CASA Report for B.H.
B.H.'s court-appointed special advocate (CASA) reported that B.H. was "thriving" in her resource home, was "happy, healthy, and was doing well in school," and was "immeasurably" helped by the stability she now had. Her resource parents were "conscientious and loving" and gave B.H. "plenty of attention." They had "become a loving, caring family," and consistently did things together. Her resource parents also considered B.H.'s need for social interactions, encouraged her to spend time with friends, and supported the children staying in touch with family. Asked before every hearing, B.H. said she did not want to live with Father, something she had said after her first week in her latest resource home. The CASA recommended the court order adoption and allow her resource parents to adopt B.H.
J. The .26 Hearing
The court held the .26 hearing in October 2023. Father asked the court to order a legal guardianship for the children under the beneficial parentchild relationship exception to the general rule that, upon finding a child adoptable by clear and convincing evidence, the court should terminate parental rights and set adoption as the permanent plan (§ 366.26, subd. (c)(1)).
Father testified that he had always been involved in the children's lives and had visited regularly with them during the reunification period. He had "a tight relationship" with N.H. since his birth, their relationship had "always been good," and N.H. was a "happy" kid who did not look to anyone else as a father figure. B.H. had a "happy and bubbly personality," was happy to see him every time he visited, looked to him as a father, and did not look to anyone else that way. Both children called him "Dad." When they were in his custody, he had enrolled them in a school across the street from his home, given them breakfast, and taken them to school.
Father wanted to stay in the children's lives as he always had been and did not want their relationship to "disintegrate." He wanted the court to order a legal guardianship so he could continue to be a part of their future, watch them grow, and have them continue their connection to his extended family, who also loved them.
Father's attorney argued for the beneficial parent-child relationship exception by pointing to Father's consistent visitation, "deep and abiding fatherly concern" for the children's well-being, and participation in and desire for more reunification therapy. He contended the children had clearly stated their desire to visit with Father and argued there would be a "significant[,] consequential[,] and detrimental hole in their lives" if the court terminated Father's parental rights.
The children's attorney recommended that the court set adoption as the permanent plan. She said the children "deserve and want permanency" after the years-long proceeding, one that had followed years of the children being in foster care while Father was in prison. She pointed out that Father only had custody of the children for a short time, upon his release from prison and until he tested positive for drugs. Since then, the children had been "very, very clear" to everyone that they do not want to return to Father's custody and even indicated at times that they did not want to visit with him. B.H. was more open to visits with Father and went to them with a "cheery attitude," but she also asked," 'Why do I have to go?'" She looked to Father "as somebody to have a fun visit with" but "not necessarily as a father." N.H. had been "very clear" and was "non-communicative" with Father.
Next, the children's CASA's addressed the court. N.H.'s CASA asked the court to "prioritize[] permanency" for N.H. B.H.'s CASA concurred regarding B.H. Both recommended the court set adoption as a permanent plan.
The Bureau argued that Father, while he had regularly visited with the children, had not established a bond with them sufficient to satisfy the beneficial parent-child relationship exception under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). As we will discuss further, the juvenile court agreed. It terminated parental rights and set adoption as the permanent plan.
Father filed a timely notice of appeal from the court's ruling regarding both children.
II. DISCUSSION
A. Legal Standards
The beneficial parent-child relationship exception applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (id., subd. (c)(1)(B)(i)). The parent asserting the exception must show three things by a preponderance of the evidence: first, his or her "regular visitation and contact with the child, taking into account the extent of visitation permitted"; second, "that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and third, "that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
The beneficial parent-child relationship exception is to be utilized in " 'exceptional circumstances'" (Caden C., supra, 11 Cal.5th at p. 631); only when the legislative preference for adoption is overcome by evidence that the child has such a strong attachment to the parent that it would be detrimental to the child to sever that bond. (Id. at pp. 629-631.)
To establish the exception, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits-the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) And showing the child "derives some benefit from the relationship is not a sufficient ground" (In re Breanna S. (2017) 8 Cal.App.5th 636, 646, disapproved on another ground in Caden C., supra, 11 Cal.5th at p. 637, fn. 6), for every parent-child contact will "always confer some incidental benefit to the child." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"A substantial evidence standard of review applies to the first two elements," which essentially involve factual determinations. (Caden C., supra, 11 Cal.5th at pp. 639-640.) "The third element-whether termination of parental rights would be detrimental to the child-is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child's relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence." (Id. at p. 640.)
"Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that's inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child's life would be like in an adoptive home without the parent in his life. [Citation.] The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 640.)
B. Standard of Review
"In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.' . . .
"Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.' '' '" (Caden C., supra, 11 Cal.5th at pp. 640-641.)
"At its core, th[is] hybrid standard . . . simply embodies the principle that '[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions.'" (Caden C., supra, 11 Cal.5th at p. 641.)
C. The Juvenile Court's Ruling
The juvenile court concluded that Father had met the first prong of the Caden C. analysis by regularly visiting with the children, but that he had not met the second and third prongs.
At the second prong, the court found Father was emotionally removed and did not connect with the children in these visits. The court said, "[B]oth children have consistently, over the past year, in particular, made it very clear that they do not consider what attachment, if any, they have to [Father], to be either a substantial or a positive one." They had stopped calling him "dad" and N.H. had said "he finally felt like he had a dad" when describing his resource father. The court expressed the view that "[t]he combination of the children clearly expressing their desire to not return to father's care and father's inability to really forge a connection with the kids hampered in no small part from his own unwillingness to own and address his issues with substances, and to recognize and take responsibility for losing his children's trust led to the children shutting down." It concluded that "the children have remained steadfast in their position that they do not wish to return to father's care, and it appears from all of the information provided to me that the second prong has not been met by [Father]."
At the third prong, the court thought the children "have been begging us for stability." N.H. had been "walking on eggshells, afraid of disrupting what little stability he has finally been able to grasp." B.H. cried when she had to visit with Father. Any potential harm from terminating parental rights was "outweigh[ed by] the security that the children have been asking us for and have been flourishing in."
D. Analysis
Father's attack on the court's order following the .26 hearing rests on a selective recitation of evidence favorable to him and misconceives the applicable standard of review. We do not reweigh the evidence under a substantial evidence standard of review of the lower court's factual determinations. (Caden C., supra, 11 Cal.5th at p. 640.) In the absence of legal error-Father points to none, and we see none-our work is done once we conclude that substantial evidence supports the juvenile court's decision. Which is what we conclude.
Father was absent for much of N.H.'s and B.H.'s lives. After his release from prison, he had custody of them for a very short time, a matter of months, before he violated the court-ordered safety plan by testing positive for methamphetamine, resulting in their removal from his custody. The court then ordered a relatively lengthy period of reunification services for Father, not terminating them for another approximately 18 months. During this period, Father showed a great and commendable determination to be a part of his children's lives, regularly visiting them. But he struggled to comply with the court's substance abuse testing regimen, initially testing positive for ethanol and missing testing appointments throughout this period, and did not always keep the children safe from Mother's behaviors.
Most significantly, he showed only limited insights into the significant deficiencies in his relationships with N.H. and B.H. and took only limited steps to rectify them, continuing to engage inconsistently with them. As the children increasingly expressed their displeasure with and concerns about their safety with him, such as by repeatedly making clear they did not want to be returned to his custody and expressing reservations or worse about visiting with him, he continued to insist that he simply needed more time with them and that they were increasingly bonded. He did so even after N.H. ran away from him during a visit, the children indicated they were afraid of him, and N.H. became virtually incommunicative with him.
In short, Father had a lengthy period of time to come to terms with his substance abuse issues and his contribution to the breakdown in his parental relationship with the children, but did not take the steps necessary to do so.
In the meantime, N.H. and B.H., after years of instability, made their way to a resource family's home in which they showed themselves over a year and a half there capable of feeling safe and of thriving, and where they were loved and well-taken care of by their resource parents. Their resource parents wanted to adopt them, showing that the children were eminently adoptable. In other words, as the juvenile court found, the children by their words and conduct demonstrated that they were eager and hungry for the benefits that stability and permanence could bring to them.
As a result, everyone else involved in the case-the Bureau's social worker, the children's CASA's, and the children's attorney-recommended at the .26 hearing that the juvenile court set adoption as the children's permanent plan. The juvenile court agreed with these recommendations and we see no reason to second-guess its decision. Substantial evidence supports the conclusion both that the children lacked a substantial, positive, emotional attachment to Father and that terminating that attachment would not be particularly detrimental to them when balanced against the countervailing benefit of a new, adoptive home. (See Caden C., supra, 11 Cal.5th at pp. 636637.)
Father relies on In re Brandon C. (1999) 71 Cal.App.4th 1530 to argue that the juvenile court erred. That case is easily distinguishable. The Brandon C. court found the beneficial parent-child relationship applied because of the consistent and close three-year relationship the parents had with the children. (Id. at pp. 1533-1534.) The parents not only visited regularly with the children, but also engaged with them during the visits, and the children, who were very young, appeared to like the visits; they were "happy and affectionate" when mother visited, and would "cry for long periods and would resist going to bed" afterwards. (Id. at pp. 1533-1535.) On the other hand, here, substantial evidence indicates the children did not have a close parental bond with Father, disliked visiting, or at least questioned the need to visit with him, and were very clear that they did not want to be returned to his custody. Brandon C. is inapposite.
In his reply brief, Father for the first time cites In re Diana G. (1992) 10 Cal.App.4th 1468, 1480 (Diana G.) for the argument that the juvenile court erred because it did not determine the children knew that termination of Father's parental rights was at stake in the course of considering their wishes. In Diana G., Division Three of this district considered the requirement stated in section 366.26, former subdivision (g), now subdivision (h)(1), that at a termination proceeding, "the court shall consider the wishes of the child and shall act in the best interests of the child." (§ 366.26, subd. (h)(1); Diana G., supra, 10 Cal.App.4th at p. 1480.) The court interpreted that provision as requiring that the juvenile court "receive direct evidence of the children's wishes regarding termination and adoption" and that the children be "aware that the proceeding involves the termination of parental rights." (Diana G., at p. 1480.)
Father forfeited the ability to rely on Diana G. because, by citing it belatedly, he deprived the Bureau of the opportunity to address the case. But even absent this waiver-in substance, his opening brief makes the same argument-we are unpersuaded. A number of courts have since rejected Diana G.'s strict reading of section 366.26, subdivision (g). (See In re Julian L. (1998) 67 Cal.App.4th 204, 208-209 [Second District]; In re Amanda D. (1997) 55 Cal.App.4th 813, 820 [Fourth District]; In re Leo M. (1993) 19 Cal.App.4th 1583, 1591-1593 [Fifth District].) Under the Julian L. line of cases, the perspective of the minors matters-a lot-but courts must always be sensitive to how their perspective is elicited. Bearing in mind the "tremendous diversity that exists among children" and the "varying circumstances that will inevitably present themselves," these precedents encourage juvenile courts to strive to explore a minor's feelings about his or her own circumstances. (In re Leo M., at p. 1592; followed in In re Amanda D., at p. 820.)
We agree with the Julian L. line of cases. As the Leo M. court summed up the matter, "[t]o ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect.... [W]e conclude that in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." (Leo M., supra, 19 Cal.App.4th at p. 1593, italics added.) The "human dignity" of children placed in this difficult position (ibid.) may be honored and respected without asking them, in effect, to weigh in directly on the ultimate legal issue, which is for the court to decide.
Here, the juvenile court was under no obligation to accept Father's rosy picture of himself and his relationship with his children. It was entitled to find that, as of the .26 hearing, Father still had serious parental deficiencies, and to weigh those deficiencies along with everything else presented on this record. In considering the balance the court struck-especially given the clearly expressed views of N.H and B.H.-we have no trouble affirming the court's ultimate exercise of discretion. Having once again examined the entire record of these proceedings, we therefore conclude the juvenile court did not err in rejecting Father's request that it apply the beneficial parentchild relationship exception, terminating his parental rights, and setting adoption as the children's permanent plan.
III. DISPOSITION
The order appealed from is affirmed.
WE CONCUR: BROWN, P. J. GOLDMAN, J.