Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 0715089
Richman, J.
At a Welfare and Institutions Code section 366.26 selection and implementation hearing, the juvenile court terminated appellant Jay H.’s (Jay) parental rights to his son Jay W.-H., Jr. (Jay, Jr.) and ordered Jay, Jr. placed for adoption. Jay appeals, contending that the juvenile court erred in terminating his parental rights because the continuing beneficial relationship exception to termination applied. We find no error, and affirm the judgment terminating Jay’s parental rights.
All statutory references are to the Welfare and Institutions Code.
The court also terminated the parental rights of Jay, Jr.’s mother, Melissa W. Because this appeal is brought only on Jay’s behalf, we omit many of the details involving Melissa as they are irrelevant to the issues before us.
BACKGROUND
Prior Contact With the Agency
Jay, Jr. first came to the attention of the Mendocino County Health & Human Services Agency (Agency) in April 2007, when Jay voluntarily sought assistance from the Agency’s Willits office with parenting Jay, Jr., who was then two months shy of his third birthday. According to Jay, he and Melissa were separated, although she stayed with him on occasion at his trailer in Willits. On other occasions she would leave Jay, Jr. with him while she disappeared for days at a time. Because Melissa had substance abuse problems, Jay worried about Jay, Jr. when he was in her care, and he was concerned that he was unable to protect his son. Jay wanted assistance with improving his parenting skills, moving to a better environment, gaining custody of his son, and finding employment. Admitting that he had a history of drug and alcohol use, including current occasional use, Jay expressed a willingness to participate in Alcohol and Other Drug Programs (AODP). He also acknowledged that he was on probation following a guilty plea to a charge of inflicting corporal injury on a spouse/cohabitant (Melissa), and that he was required to attend Men’s Alternative to Violence (MAV) classes as a term of his probation.
Jay also informed the social worker that he was receiving social security income, although he did not know if it was for a physical or mental disorder. The social worker noted that Jay had difficulty following and understanding their conversation at times. Information subsequently received from the social security agency advised that Jay’s medical diagnoses were “Mood Disorder and Organic Mental Disorder/Chronic Brain Syndrome.” The social worker also learned that there had been domestic violence incidents between Jay and Melissa, with Melissa at times being the aggressor, and that Melissa would breastfeed Jay, Jr. when she was intoxicated.
Over the following two months, the Agency had frequent contact with Jay and Jay, Jr., providing, among other things, assistance with housing applications and financial management. On June 25, 2007, the Agency closed the case because Jay was receiving similar services through Family Connections, from which he had sought help in March 2007.
Section 300 Petition
On June 28, 2007, a mere three days after the Agency closed its voluntary case, Melissa was arrested for disorderly conduct, resisting arrest, and battery on a peace officer. The arrest stemmed from an incident in which Melissa and a companion took Jay, Jr. to Lake Mendocino after having made a scene at a nearby supermarket where they had purchased alcohol. After spotting them at the lake, a sheriff’s deputy approached Melissa, who was staggering while holding Jay, Jr. and appeared to be intoxicated. Melissa’s companion, who had driven them to the lake, likewise appeared to be intoxicated. When the deputy ordered Melissa to place Jay, Jr. on the ground, she became argumentative and verbally combative, finally complying only after being ordered to do so for the third time. Preliminary alcohol screening tests registered Melissa’s blood alcohol content at 0.143 and in excess of 0.150. After concluding that Melissa was unable to care for Jay, Jr., the sheriff’s department contacted the Agency, and Jay, Jr. was detained.
On July 2, 2007, the Agency filed a section 300 juvenile dependency petition, alleging that Melissa and Jay failed to protect their son pursuant to subdivision (b). Specifically, paragraph b-1 alleged that Melissa had a substance abuse problem that inhibited her ability to parent and that she was “unable to provide her son with a home free from the negative effects of drugs.” Paragraph b-2 alleged that Jay had “a substance abuse problem and a problem with domestic violence” that inhibited his ability to parent, and that he was on probation for corporal injury on a cohabitant, a condition of which required him to participate in a year-long domestic violence program and to attend Alcoholics Anonymous (AA) meetings. Paragraph b-3 alleged that Jay was “unable to protect his son from [Melissa’s] substance abuse problems and her violence,” further explaining that Melissa was an alcoholic, she breastfed Jay, Jr. when she was intoxicated, and Jay and Melissa engaged in domestic violence in front of Jay, Jr.
Detention
A detention report prepared by the Agency summarized the incident leading to Jay, Jr.’s detention and the families’ prior contact with the Agency. The Agency then requested continued detention: “This is a case involving domestic violence and substance abuse as well as the father’s inability to protect his child from the mother. Even with voluntary family maintenance services being offered, [Jay] was not able to keep his son safe and [Melissa] did not change her behaviors.”
At a July 3, 2007 detention hearing, both parents submitted on the detention report. Having read and considered the report, the court ordered Jay, Jr. detained, and he was placed in foster care.
Jurisdiction
The Agency’s July 26, 2007 jurisdiction report provided further insight into Jay and Melissa’s criminal records. In 1987, Jay was arrested for being under the influence of a controlled substance and was committed to a mental hospital. Upon his release a few months later, he was convicted of being under the influence of a controlled substance and sentenced to 198 days in jail. In 1988, he was convicted of theft and battery on a peace officer, receiving 36 months probation and 100 days in jail. In 1993, he was convicted of infliction of corporal injury on a spouse/cohabitant, this time receiving 36 months probation and 60 days in jail. In 2003, 2004, and 2006, he was arrested for disorderly conduct. And in March 2006 he pleaded guilty to the infliction of corporal injury on a spouse/cohabitant and was sentenced to 36 months probation and 30 days in jail.
Melissa’s criminal record was not dissimilar, with numerous arrests on charges that included public intoxication, fighting in public, infliction of corporal injury on a spouse/cohabitant, and resisting arrest.
The report explained that the day following Jay, Jr.’s detention, a social worker asked Jay if he could explain how Melissa came to have Jay, Jr. with her on the day of his detention. Jay explained that he was required to do community service hours, and Melissa would watch Jay, Jr. while he was out. On the day of Jay, Jr.’s detention, he expected Melissa to bring their son back but she did not do so. When he finally contacted her, she told him she would be staying at the lake in Ukiah for a few days. He was later informed that Melissa had been arrested and Jay, Jr. detained.
According to the report, Jay considered himself Jay, Jr.’s primary caretaker. He worried about his son when left in Melissa’s care, and he would miss work because he was afraid of what might happen to Jay, Jr. while he was gone. Jay also indicated that he was ready to leave Melissa, and he and the social worker discussed filing for custody of Jay, Jr.
The report noted that over the preceding five months Jay had been receiving services through Family Connections. He had enrolled Jay, Jr. in the Head Start program, had completed information needed to obtain better housing, and was attending parenting classes. While Jay sometimes failed to attend scheduled meetings, he maintained regular contact with the Family Connections social worker.
On July 31, 2007, the Agency filed an amended section 300 petition that was substantively identical to the initial petition. At a jurisdictional hearing that same day, Melissa and Jay submitted the matter on the Agency’s report, and the juvenile court found the jurisdictional allegations to be true by a preponderance of the evidence. The matter was then continued to September 6, 2007 for disposition.
The amended petition appears only to differ in that it indicates Jay, Jr. may be of Indian ancestry, apparently based on a representation by Melissa that she may be of Iroquois heritage. Notices were subsequently sent pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. The Agency did not receive any indication that Jay, Jr. was a member of or eligible for enrollment in any tribe, and this appeal does not present any ICWA issues.
Disposition
The Agency’s disposition report identified reunification with Jay or Melissa as the desired goal. Since detention, Jay, Jr. had been in the care of Beth D., a long time friend of Melissa’s who had been caring for one of Melissa’s other children for the past four years. The report described Jay, Jr. as a happy child, and while he was settled in his foster home, he struggled with separation from his parents after visits.
Melissa also has two adult children.
According to the report, Melissa had struggled with alcohol abuse for the past 15 years. She claimed to be doing what she could to get her life together, but her participation in AODP was poor and she was at risk of being terminated from the program. Melissa’s AODP counselor indicated that an inpatient treatment program would best meet her needs.
As to Jay, he had enrolled in AODP in August but he “has a difficult time with remembering and communicating.” It was also noted that prior to Jay, Jr.’s detention, Jay was participating in Family Connection services, but that did not “prevent him from allowing his child to be placed in danger when [he] allowed [Melissa] to care of [sic] their child while being under the influence of alcohol.”
The report then summarized: “This is the case of two parents that have placed their child in danger based on their alcohol abuse, domestic violence and poor decision making. [Melissa] and [Jay’s] alcohol problem needs to be addressed in order for them to take responsibility [for] their actions. [Jay] has allowed [Melissa] to care for his son even though he knew she would not be an adequate care provider due to her substance abuse. [Jay] needs to complete the domestic violence program and address anger issues. [Jay’s] mental health is another concern as to his ability to provide [for] the needs of his child. It is highly recommended that [Jay] receive a psychological evaluation in order to assess his ability to parent his child and to tailor any services to his particular needs. The parents need to change their behaviors and actions in order to provide a safe environment for their child.” The Agency recommended that Melissa and Jay have supervised visits with Jay, Jr. a minimum of one hour per week.
In the appended case plan, the Agency established a goal of reunification by January 4, 2008. The plan identified the following service objectives for Melissa and Jay: obtain resources to meet Jay, Jr.’s needs and provide a safe home; maintain their relationship with Jay, Jr. by following the conditions of the visitation plan; stay sober and demonstrate their ability to live free from alcohol dependency; and consistently, appropriately, and adequately parent Jay, Jr. The plan also directed Jay to attend and demonstrate progress in a certified domestic violence prevention program and to comply with medical or psychological treatment.
An uncontested dispositional hearing was held on September 13, 2007, following which the juvenile court declared Jay, Jr. a dependent in the Agency’s custody, adopted the Agency’s case plan, ordered weekly visits, and continued the matter for 30 and 60 day substance abuse treatment reviews.
30- and 60-Day Substance Abuse Treatment Reviews
Jay timely submitted a 30-day status report evidencing clean urine tests and progress in his case plan objectives. He had attended eight group and five individual AODP meetings, and was attending community support meetings. According to his counselor, he had “excellent attendance and participate[d] well in groups.” Melissa, on the other hand, had a turn-in date on a prior jail sentence, and while she attended AODP orientation, she was unable to commence the program until after her release.
The 60-day reviews for both parents showed progress. Melissa had attended 15 group and two individual AOPD meetings as well as 12-step meetings, had four negative chemical tests in October, and was “engaged in treatment and making good progress.” Jay’s report showed he had attended six AODP group meetings, was “engaged in treatment,” and would soon be completing the AODP program. He also had four negative chemical tests. The matter was continued to January 15, 2008 for a six month review.
Six-Month Review
The Agency’s January 11, 2008 six-month status review reported that Jay continued to make progress on his reunification plan. He had applied for HUD housing, graduated from AODP, and completed Intake Support Group. He was also engaged in a Family Empowerment Group (FEG), was taking parenting classes, and was scheduled to start MAV classes. Significantly, he had also made all visits with Jay, Jr., going to great lengths to do so given that he lacked transportation.
Jay had also undergone a psychological evaluation, which found that he did not suffer from any “cognitive or memory deficits,” although his overall functioning was of “low-average caliber.” The evaluation noted that in light of mild anxiety Jay exhibited, he “would benefit from psychiatric assessment to see if medication would be of benefit to him, lest he run the risk of using alcohol for sedation.” It concluded that Jay was “able to benefit from ongoing reunification services and [was] highly motivated to do so in order to have [Jay, Jr.] returned to his care.”
The six-month report was not complimentary of Melissa, however. She had been unable to maintain suitable housing separate from Jay, again resorting to residing in his trailer. She also had a relapse with alcohol in September, although she had regained her sobriety shortly thereafter and had maintained it for the three months preceding the January report. Melissa’s visits with Jay, Jr. had been suspended upon her relapse, although they were soon reinstated. She made regular visits throughout October, but missed three consecutive visits when she served a jail sentence during November. She made all subsequent visits. She had completed Intake Support Group and Breaking the Cycle, but still needed to begin participation in FEG and other parenting classes.
As to Jay, Jr., the report summarized: “Jay, Jr. is doing very well in his placement. He is enrolled in day care and enjoys it very much. He is talking more and is very active. He is also residing in the same home with his older sister (who is not a dependent) and their bond has grown.” Visits between Jay and his parents were going well, with both parents afforded two hours of visitation per week. The social worker recommended maintaining the same visitation schedule. The report concluded with an observation that while “both parents are on track to reunify with their son,” they “have not progressed enough with their case plans to have their child returned to them. Due to the nature of the detention, there is concern that [Jay] will not be able to protect his son if [Melissa] relapses and begins drinking again. [Jay] is aware that this is a concern and is going to work on a plan in his Family Empowerment Group.”
At the six-month review hearing, Jay’s counsel argued that Jay had “done almost everything necessary to this point” and that the Agency had not met its burden of showing a substantial risk to Jay, Jr. if he were returned to Jay’s care. The two remaining issues involved Jay’s preparation of a safety plan should he find himself in a situation where Jay, Jr. was exposed to people under the influence of drugs or alcohol, and completion of an anger management program, in which he was then enrolled. She requested an interim review in one or two months, or alternatively suggested that she might filed a section 388 petition on Jay’s behalf.
Counsel for Jay, Jr. expressed a concern that there were no recent drug test results for Jay, the last one being in early November. It was determined that having completed AODP, Jay was no longer required to be tested, although Jay’s counsel represented that he was willing to submit to ongoing tests.
The court commended Jay on “the level of commitment and participation” he had shown to completing his reunification plan objectives. The court noted, however, that while Jay was enrolled in an anger management program, he needed to demonstrate “substantial progress” in the program. The court then continued Jay, Jr. as a dependent, ordered Melissa and Jay to continue complying with their case plans, maintained the existing visitation schedule with overnight visits to be allowed at the discretion of the social worker, and set a 12-month review for July 17, 2008.
12-Month Review and Termination of Reunification Services for Jay
In June 2008, the Agency submitted a 12-month status report in which it requested termination of family reunification services and the setting of a section 366.26 selection and implementation hearing. The report indicated that “[d]ue to the parent’s lack of compliance with their service objectives, and the mother’s inability to refrain from illegal substances, the probability for the return to the parents is unlikely.”
The attached case plan update noted that Melissa failed to meet most of the objectives of her reunification plan, while Jay’s efforts at completing his objectives had greatly diminished since the six-month review. He had attended only two-thirds of his FEG meetings, with his facilitators reporting that his demeanor was apathetic and disinterested and that his lack of participation suggested he was not engaged and not interested in completing his service plan. Jay also failed to complete necessary paperwork for the Supportive Housing Programs and was dropped from the program.
The report noted that at the six-month review hearing, “the [court] stated that the father needed to make substantial progress in his Men’s Alternative to Violence (MAV) program.... [Jay’s] participation in this program has been insufficient in that he has attended 9 out of a possible 21 classes (48%). [Jay] stated that he has transportation problems getting to Ukiah for these classes. The Agency has provided fuel vouchers to [Jay] so that he may get to Ukiah for this service objective.” The report also indicated that there were MAV classes in Willits but they had a very long waiting list, and the facilitator was concerned that Jay was not capable of absorbing the curriculum.
In terms of substance abuse, Jay failed to submit proof that he was attending a minimum of three AA meetings per week, and he tested positive for methamphetamine in April 2008. Melissa also tested positive for methamphetamine in June, which prompted the social worker to visit Jay and Melissa to advise that overnight visits with Jay, Jr. were being suspended. The social worker described the encounter: “When I informed [Jay] of [Melissa’s] positive drug test, his reply was, ‘What, you’re not giving us our overnights for one dirty test!’ He then took a step toward me and said, ‘F*ck you get away from my house!’ I felt my immediate safety could be jeopardized, and I left the home immediately.”
While both parents failed to make sufficient progress with their case plan objectives, the report was very positive in terms of visitation and their relationship with Jay, Jr.: “This is one area that both parents have done exceptionally well. It looks as if they have never missed a visit. The visits I have witnessed have been appropriate.”
Specifically as to Jay, the report had observed that there “appeared to be a nice connection between the father and the son.” The only noted concern involved an incident in which Jay yelled at Jay, Jr. The social worker explained: “When I addressed this with the father, he said that Jay Jr. ran into the street with other kids in the trailer park and he did raise his voice. He replied, ‘I’m not going to have my son run in the street, and he’s going to get yelled at’. When I gave Jay some positive discipline concepts, like speaking softly, and letting the child know in age appropriate language the safety concerns of running into the street, Jay was steadfast that he was going to yell at his son if he ran into the street.”
Similarly, documents appended to the case plan update demonstrated that Jay had a strong, positive relationship with Jay, Jr. and that visits had been going very well. For example, in a May 20, 2008 client evaluation, the social worker related that he observed—unnoticed by Jay and Jay, Jr.—a park play date between the father and son. He noted, “The father, Jay is especially appropriate around his son. He is good at setting limits around the playground equipment in order to keep [Jay, Jr.] safe. They have a really good father, son relationship. Jay is cheerful and fun with his son. When he got a little loud, it was due to excitement in a fun type mood. It wasn’t negative yelling.”
Despite the positive interactions between Jay and Jay, Jr., the social worker concluded: “I feel that there is no doubt that [Jay] cares deeply for his son, Jay Jr. However, his lack of participation in his important service objectives expresses a very pedestrian interest in the willingness to rectify the situations that led to child welfare involvement. In addition, I continue to have concerns that [Jay] lacks the protective factors in keeping his son safe from the ongoing substance abuse issues of the child’s mother. They continue to live together.” “In light of both parents’ struggles with chemical dependency and poor services completion record,” the Agency could not recommend the return of Jay, Jr. to his parents. Instead, it recommended long-term placement and eventual adoption by Jay, Jr.’s foster mother. The Agency therefore requested that the court set a section 366.26 hearing.
An addendum to the 12-month status review updated the court regarding Jay’s continued failure to seek sufficient help to address his substance abuse problem. The social worker had conveyed to Jay the importance of getting re-involved with AODP in light of his April 2008 methamphetamine relapse and his minimal 12-step participation. Jay responded with anger at the social worker for “what [he was] doing to his visits.” Jay demanded to speak with his supervisor and refused to participate in AODP.
A second addendum advised the court that despite Jay’s initial refusal to enroll in AODP, he did in fact contact the program. He failed to show up for his orientation, however, “once again show[ing his] inability to engage in services on behalf of his son.”
A contested 12-month review hearing was held on July 17, 2008. After the presentation of evidence, counsel for Jay urged the court to extend reunification services for six months. Counsel questioned whether sufficient services were offered to Jay in light of the organic brain injury he suffered in his childhood, and noted that he was never offered psychotropic medication such as anti-anxiety or anti-depressant drugs. Counsel theorized that such medication might have allowed him to continue to engage in the reunification services to the extent he did over the first six months, when he was clearly motivated to complete his plan objectives. And given the bond between Jay and Jay, Jr., counsel urged the court to give Jay an opportunity over the following six months to do everything he could to provide a safe home for his son.
Counsel for Jay, Jr. objected to an extension of reunification services as to Jay, describing it as an “easy” case given Jay’s “a lack of participation.” As examples, counsel identified Jay’s poor participation in FEG, AA, and MAV; his methamphetamine relapse; his refusal to return to AODP until just prior to the hearing; and his refusal to participate in Family Dependency Drug Court (FDDC), which Jay, Jr.’s counsel described as the “Cadillac” of services. Counsel disputed that Jay had not been offered reasonable services, arguing instead that he simply had not availed himself of the services that had been offered. Further, counsel noted that the issue concerning Jay’s brain injury was not new and had been known before the six-month review hearing, and submitted that Jay’s counsel could have requested inclusion of a psychiatric evaluation in the case plan at that time, but she did not do so.
Counsel for Jay, Jr. continued that, while it was a more difficult call as to Melissa, the fact remained that she still struggled with her substance abuse problem. She relapsed with alcohol in April and tested positive for methamphetamine in June. While Melissa had made some progress, counsel contended she had not made enough progress to justify extending reunification services.
Counsel for the Agency agreed, claiming Jay was offered appropriate services and “basically chose not to go.” As to Melissa, counsel argued that she lacked “a stable, predictable environment and lifestyle.” She concluded that that neither parent had “demonstrated the capacity and ability both to complete the objective of his or her treatment plan and provide for the child’s safety, protection, physical and emotional well being and special needs....”
At the conclusion of the hearing, the court terminated reunification services as to Jay. It was “underwhelm[ed]” that Jay did not enroll in AODP until three days prior to the hearing, and noted that the organic brain syndrome was not an issue because Jay was offered services, but simply failed to take advantage of them. In short, the court expressed doubt that Jay would ever reunify with his son, even if the reunification period was extended.
As to Melissa, the court agreed that it was a “tough call.” He noted she had suffered two relapses, and did “dumb things, going to parties,... knowing that there’s going to be alcohol, that old friends are going to be there, and opportunities with the classic triggers are going to be there.” Nevertheless, the court gave Melissa’ “the benefit of the doubt,” extended reunification services, and ordered the case plan amended to include a referral to FDDC. An amended case plan for Melissa was adopted on July 23, 2008 and an 18-month review hearing set for December 17, 2008.
18-Month Review and Termination of Reunification Services for Melissa
Although it appeared that Melissa was motivated to reunify with Jay, Jr., she suffered another relapse in October 2008. Consequently, in the 18-month status review, the Agency requested that reunification services be terminated and a section 366.26 hearing set.
As to Jay, the report indicated that visits between Jay and Jay, Jr. had gone well, the only concern being some “time management issues” apparently stemming from tardy returns following off-site visits.
At the December 17, 2008 18-month review hearing, the court adopted the Agency’s recommendations and terminated services as to Melissa. It ordered continued visitation as to both parents, and set a section 366.26 hearing for April 16, 2009.
Melissa’s Section 388 Petition and the Section 366.26 Hearing
The Agency’s section 366.26 report recommended termination of parental rights. It indicated that Jay, Jr. appeared to be adoptable and that his foster mother, who had taken care of him since September 2007 as well as his older half-sister for a number of years, desired to adopt him. She was gainfully employed, had reliable childcare for Jay, Jr. when he was not in preschool, and was able to meet his needs.
Significantly, the report also identified behavioral problems that Jay, Jr. exhibited following visits with his parents: “The child, who is called Jay-Jay by his family, was having separate weekly unsupervised visits with each of his parents, with his mother visiting at the foster parent’s home on Saturdays and the father’s occurring at the Family Center until March 2009, when both the mother’s and father’s visits began occurring at the adoptive home. As early as December 10, 2008, Family Center staff reported that Jay-Jay was having behavior problems after his visit with his mother, Melissa. He also reportedly had some behavior problems after visiting his father, but not as severe. On that date, the foster mother also reported that Jay-Jay had begun having stomach aches on Wednesday mornings before coming to visit with his father. [¶] After all the visits started originating at Jay-Jay’s foster home, Jay-Jay’s behaviors after his visits became even more noticeable and concerning. On March 11, 2009, the caretaker reported that once the visits were ordered to be supervised at her own home, the parents began taking liberties of showing up at times different than what had been agreed upon and they even showed up at Jay-Jay’s preschool, causing both the teacher and the child anxiety. In addition, Jay-Jay seems to be ‘transformed into a different child’ whenever either of his parents show up for a visit. He suddenly reverts back to a child who cannot stay still, will not listen to or follow directions, has accidents and fidgets excessively. Jay-Jay’s behavior after visits quickly became particularly troublesome due to the frequency of visits, with his mother and father both visiting separately one time per week. This meant that Jay-Jay did not have a chance to respond to the structure and stability of his new home.” Despite these behavioral problems, however, the report noted that “it appears to be in the best interest of the child to continue to have visitation with the mother and the father.”
On April 13, 2009, Melissa filed a petition pursuant to section 388 to change the court’s order terminating reunification services and setting the section 366.26 hearing. Instead, she sought further reunification services based on progress she had made since the 18-month review: “She has gone to an average of five 12-step meetings per week, to domestic violence and anger management treatment at Project Sanctuary, and to Triple P parenting. She has continued to visit every Saturday, unsupervised, for about six hours. She has also registered for a vocational job retraining program.”
The section 366.26 hearing was continued to May 6, 2009 to afford the Agency an opportunity to respond to Melissa’s petition. In the ensuing addendum to the section 366.26 report, the Agency disputed certain of Melissa’s claims concerning the amount of time she had visited with Jay, Jr. The social worker also expressed “several serious concerns” about Melissa’s ability to care for Jay, Jr., the first concern being that although Melissa had submitted documentation evidencing her participation in and completion of several parenting classes, there was no evidence she had “been able to actually put this knowledge into practice.” Of further concern was the impact Melissa’s visits had on Jay, Jr., with both the foster mother and childcare provider describing him as a “different child” during and after visits with his parents. In the words of his childcare provider, “He becomes hyper, aggressive, won’t sleep, pees his pants, has fits, won’t mind, can’t calm down or control himself,” behavior that sometimes continues for days after a visit. Following a reduction in visits to once per month, the caregiver reported that Jay, Jr.’s behavior “improved immensely”: he was a “lovable child, is much easier to get in control and to stay in control. He is mellower, happier and not as hyper. He does not have tantrums and he never wets himself unless he has just had a visit with a parent.”
Likewise, according to the addendum, the foster mother reported that following visits with either of his parents, Jay, Jr. could not “focus, fidgets excessively and cannot sit still” and “frequently wets himself.” And Jay, Jr.’s preschool teacher reported a “huge” improvement in his behavior when his visits with his parents were decreased. Finally, the report noted that Melissa had not yet secured permanent housing and was instead living in three different locations. And, it was noted, although she was attending NA meetings, she had not been regularly drug tested and there was insufficient evidence of her ability to maintain sobriety for a prolonged period of time.
The petition was also opposed by counsel for Jay, Jr., who argued that continued reunification services were not in Jay, Jr.’s best interest.
A two-day hearing on Melissa’s section 388 petition commenced on May 6, 2009. Jay, Jr.’s foster mother, whom he called “Mama Beth,” offered the following relevant testimony. Jay, Jr. began living with her in September 2007, at which time his half-sister Samantha also lived there. Jay, Jr. and his “Sissy” developed a very close relationship. Prior to October 2008, Melissa had supervised visits with Jay, Jr., but after that time, she was allowed unsupervised visits, initially for two hours but then for longer periods of time. When the visits were extended, however, Beth began to notice behavioral problems, testifying that Jay, Jr. “would come back and be angry.” He also had weekly visits with his father, and Beth felt that between separate weekly visits with both parents, Jay, Jr. did not have an opportunity to get back into the routine of the house. As a result, “he would argue, he would rebel,... and then he’d start wetting his pants.” He also would excessively lick his hands, behavior Beth attributed to nerves. Accordingly, she requested that the visits become less frequent. Once visitation was decreased, she noticed a big improvement in his behavior: “[H]e’s been able to level out. He’s been excelling more at school. He’s been doing better at home....”
When asked about a prior comment she made to the social worker about the importance of maintaining a relationship between Jay, Jr. and his parents, Beth responded, “I know that it’s important for him to know who they are and to keep contact with them, you know, as long as it’s stable.”
Jay, Jr.’s childcare provider, Leah W., who took care of him on weekday afternoons when Beth was working, also testified. She reiterated Beth’s concern that Jay, Jr. had behavioral issues after visits with his parents: “Not able to control his actions, bossy, like he gets really bossy and doesn’t want to listen, licking himself, just really, really, hyper.” She did not notice the hyperactivity after visits with Jay as much as with Melissa. After visits were reduced to once per month, his behavior improved: “[H]e’s more in control of himself. He—less behavior problems, doing a lot better at naptime at school. When I pick him up I get better reports. He’s a lot better at my house. He seems more settled, more confident....”
The testimony of Jay, Jr.’s preschool teacher and his half-sister, Samantha, was similar regarding Jay, Jr.’s behavior following visits with is parents. As Samantha explained it: “I think he really enjoys seeing his parents and when he does he, you know, gets really high up there in his emotions.”
Counsel for Jay, Jr. made an offer of proof as to what Jay, Jr.’s testimony would be if he testified during the hearing. As is pertinent here, he identified “Mommy, Dad, Sissy, Ms. Angel [his preschool teacher], and Mama Beth” as the people in his life that were important to him. When asked who in his life he loved, he identified “Mommy, Daddy, Mama Beth and Sissy.” When asked if he would like to live with anyone other than Beth, he responded, “I don’t know. I’d like to live with my mommy.” When asked if he would rather live with Beth or Melissa, he indicated that he wanted to stay a few days with one and then a few days with the other. The court accepted the offer as a substitute for Jay, Jr.’s live testimony.
The social worker then handling the case also took the stand, primarily testifying about her recommendation that Melissa’s request for further reunification services be denied. As to Jay, Jr.’s behavioral problems following visits with his parents, she acknowledged that his regression after visits could be attributed to the fact that he missed his parents after they left.
At the conclusion of the hearing, the court denied Melissa’s section 388 petition. It then proceeded with the section 366.26 selection and implementation hearing, relying on the evidence submitted in connection with the section 388 petition.
In closing argument, counsel for Jay objected to termination of Jay’s parental rights, arguing that the beneficial relationship exception to termination should apply. She stated that both the 12- and 18-month status reports indicated the visits between Jay and Jay, Jr. were consistently positive. As to testimony that Jay, Jr.’s behavior had improved since visitation was reduced to once per month, counsel observed: “[Y]es, maybe his behavior has improved slightly since not seeing his parents but neither has he had the highs that he gets when he sees his parents. So we’re taking a kid—we’re taking away the joy of seeing his parents and then therefore the—he doesn’t have the lows afterwards and it just seems sad to me that we put these children in these neutral, more calm positions.” She further argued, with respect to Jay, Jr.’s acting out after visits, “[I]t’s always a very murky place to question what’s the cause behind that and so you have to look at how the visits themselves are and how the parents are at those visits.” And both Jay and Melissa, she submitted, were appropriate during visits.
At the conclusion of the hearing, the court terminated parental rights as to both parents and referred Jay, Jr. for adoptive placement. After the court ruled, counsel for the Agency observed that after termination there is no legal right to visitation but that the social worker was recommending continuation of the current schedule of one visit per month. The hearing concluded with the following remark by counsel for Jay, Jr.: “I know there’s no orders with regard to visitation of the parents but I’m very hopeful that the parents will continue to work with the foster parent. They’ve maintained a good relationship and that I know that [Jay, Jr.] loves you both very much and that you can continue to visit him within Beth’s discretion.”
This timely appeal by Jay followed.
DISCUSSION
Statutory Provisions Governing Section 366.26 Selection and Implementation Hearings
At a selection and implementation hearing held pursuant to section 366.26, the court must select and implement a permanent plan for the dependent child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) The court has available to it four specific alternatives in selecting the permanent plan: termination of parental rights and adoption, identification of adoption as the plan but without immediate termination of parental rights, guardianship, or long-term foster care. (§ 366.26, subd. (b)(1)-(5); In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1090.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of several identified exceptions. (§ 366.26, subd. (c)(1)(A), (B)(i)-(vi); In re Matthew C. (1993) 6 Cal.4th 386, 392; In re Tabatha G. (1996)45 Cal.App.4th 1159, 1164.) It is the parent’s burden to show the applicability of an exception to termination. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
The Juvenile Court Did Not Abuse Its Discretion In Rejecting The Continuing Beneficial Relationship Exception To Termination
Jay’s primary argument on appeal is that the juvenile court committed error when it terminated his parental rights because one of the enumerated exceptions to termination applied, the continuing beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) The applicability of the exception is a “quintessentially discretionary determination.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We therefore review the juvenile court’s determination for abuse of discretion (id. at p. 1351), and conclude there was no such abuse.
The continuing beneficial relationship exception requires the court to select an alternative other than termination of parental rights where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); In re Derek W., supra, 73 Cal.App.4th at p. 826.) The Agency rightly concedes the first element of the standard—that Jay maintained regular visitation and contact with Jay, Jr. We thus address only the second element, whether Jay, Jr. “would benefit from continuing the relationship.”
In In re Autumn H. (1994) 27 Cal.App.4th 567 , the court explained that “benefit” in this context means that “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 Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Derek W., supra, 73 Cal.App.4th at p. 827.) The court further explained that the exception is to be examined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4that pp. 575 576; see also In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350)
At the time of the May 2009 permanency hearing, Jay, Jr. was almost five years old. He had lived with Beth for the nearly two years between detention and the hearing. During that time he had transformed from a child who was unable to play independently and communicate well to a child who was capable of playing by himself and was learning new communication skills. He was enrolled in preschool, could write his name, knew his ABC’s, and was learning how to count. He also developed a loving, bonded relationship with his half-sister. Beth provided Jay, Jr. with “a stable, structured, yet loving and nurturing home” where he could “grow and flourish.” Undoubtedly, the benefits to Jay, Jr. of making this a permanent arrangement were considerable.
In contrast, Jay, Jr. spent the first three of his five years with Jay and Melissa in an undefined co-parenting arrangement. While in their care, he witnessed domestic violence between his parents as well as their on-going drug and alcohol abuse, all while residing in an unsuitable living environment. Jay claims that he was Jay, Jr.’s primary care giver during this time, but the evidence on this is ambiguous. Melissa lived in the trailer with Jay and Jay, Jr. for much of the time, was breastfeeding Jay, Jr. at the time of detention, and was the child’s sole care provider at times. And despite the social worker’s offer of assistance, Jay never filed for custody of Jay, Jr.
Given these circumstances, the portion of Jay, Jr.’s life that he spent living with Jay is not a significant factor, since Jay, Jr. spent only marginally more time—not “materially” more time, as Jay submits—with Jay than with his foster mother. And certainly the quality of the time does not favor Jay.
More relevant to our consideration is “the ‘positive’ or ‘negative’ effect of interaction between parent and child.” (Autumn H., supra, 27 Cal.App.4that pp. 575 576.) The Agency’s status reports and four different witnesses at the permanency hearing confirmed that visitation with Melissa and Jay caused behavioral problems in Jay, Jr. He “transformed into a different child” following visits, reverting “back to a child who cannot stay still, will not listen or follow directions, has accidents and fidgets excessively.” He also engaged in excessive licking following visits, behavior attributed to stress. These behavioral problems improved after visitation was reduced to one visit per month. While it is possible that the improvement in Jay. Jr.’s behavior after the visitation schedule was reduced could be attributed to, as his half-sister described it, the loss of the “high” he experienced with the visits, it remains the case that the less often Jay, Jr. saw his father, the less troubling his behavior. Finally, it is significant that although Jay, Jr. identified his father as one of the people he loved, he did not identify him as one of the people with whom he would like to live.
From the foregoing it is evident that Jay and Jay, Jr. had a loving relationship, but the record does not support a conclusion that the relationship they shared promoted Jay, Jr.’s well-being to such a degree as to outweigh the well-being he would gain in a permanent home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, we cannot conclude that the juvenile court abused its discretion in rejecting Jay’s argument that the continuing beneficial relationship exception applied.
In urging a contrary result, Jay repeatedly references the positive relationship he and Jay, Jr. shared. In addition to noting that Jay, Jr. loved him “very much,” Jay also labels the relationship as one of “father and son where Jay was looking out for the boy’s well-being by satisfying his need for instruction, praise and course-correction, rather than a relationship with a favorite ‘uncle’ or ‘friend.’ ” Despite Jay’s attempted characterization, the evidence does not in fact depict a parent-child relationship, one in which Jay provided for his son, took care of his day-to-day needs, and guided him towards responsible adulthood and independence. As the In re Autumn H. court described the parent/child bond: “The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The record does not support Jay’s claim that his relationship with Jay, Jr. was of a similar nature. Certainly, it was a loving friendship, but that is insufficient. (In re Helen W. (2007) 150 Cal.App.4th 71, 81 [a friendly relationship “is simply not enough to outweigh the sense of security and belonging an adoptive home would provide.”]; In re Angel B. (2002) 97 Cal.App.4th 454, 468 [“[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.”]; In re Derek W., supra, 73 Cal.App.4th at p. 827 [“The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.”]; In re Beatrice M., supra, 29 Cal.App.4th at p. 1418 [“frequent and loving contact... is [in]sufficient to establish the ‘benefit from a continuing relationship’ contemplated by the statute.”].)
Jay relies heavily on In re Amber M. (2002) 103 Cal.App.4th 681, a case he describes as “right on point.” Not so. In In re Amber M., the mother appealed from a judgment terminating her parental rights over her three children who were then in the care of her parents, with her son living with his grandfather and her two daughters living with their grandmother. She argued, as is relevant here, that the court erred in failing to apply the continuing beneficial relationship exception to termination. (Id. at p. 684 685.) The Court of Appeal agreed, concluding that the mother maintained regular visitation and contact, and met her burden of showing a beneficial relationship such that the juvenile court should have applied the exception. (Id. at p. 689.)
Specifically, the evidence, “from the bonding study psychologist, the therapists, and the [court-appointed special advocate],” demonstrated “a beneficial parental relationship that clearly outweigh[ed] the benefit of adoption.” (In re Amber M., supra, 103 Cal.App.4th at p. 690.) The two older children loved and missed their mother, and had “a strong primary bond with her,” the severance of which would have been “detrimental” to the children. (Id. at pp. 689-690.) The younger child, “while seemingly too young to have developed much of a relationship with Mother, nevertheless was very strongly attached to her.” (Id. at p. 690.) The court further explained: “Mother visited as often as she was allowed and acted in a loving, parental role with the children when permitted visitation. She was devoted to them and did virtually all that was asked of her to regain custody. The social worker, the only dissenting voice among the experts, provided no more than a perfunctory evaluation of Mother’s relationship to the children, instead focusing on her current inability to provide a home for them and on the suitability of the current placements, perhaps swayed by both grandparents’ qualifications and willingness to adopt and their refusal to consider guardianship or any other permanent plan. Admittedly, at the time of the section 366.26 hearing, Mother was not ready for the children’s return to her custody. Neither that fact, however, nor the suitability of the grandparents’ homes can justify the termination of parental rights. If the proposed adoptions proceed, the three children will be adopted in two separate groups, and the maintaining of mother-child and sibling relationships will depend solely on both grandparents’ continued goodwill.” (Id. at pp. 690-691.)
In re Amber M. is distinguishable for at least one very significant reason: the evidence showed that severance of the mother-child relationship would be detrimental to the children. Here, however, Jay did not present any evidence that Jay, Jr. would be harmed, let alone greatly harmed, by terminating the father-son relationship. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575 [continuing beneficial relationship exception applies where severance of the parent/child relationship would “greatly harm” the child]; In re Beatrice M., 29 Cal.App.4th at p. 1418 [parent/child relationship that satisfies the continuing beneficial relationship “must be sufficiently strong that the child would suffer detriment from its termination”].) To the contrary, the uncontroverted evidence showed that Jay, Jr. benefitted from fewer monthly visits with his father, evidence that was nonexistent in In re Amber M. Jay does not even acknowledge the extensive evidence describing the negative impact his visits had on Jay, Jr.’s behavior, evidence we cannot simply disregard.
Jay also submits that In re Amber M. teaches “that where continued visitation is considered to be worthwhile, then the occurrence of that visitation should not depend on the goodwill of the children’s custodians, even if the custodians are loving grandparents who are otherwise suitable for adoption. Under such circumstances, the recommendation for continued visitation with Jay per se constitutes fulfillment of the beneficial interests requirement” of the exception. Jay provides no authority for his suggestion that the governing standard is whether “continued visitation is considered to be worthwhile.” Likewise his suggestion that the continuing beneficial relationship exception applies simply because the Agency recommended continued visitation.
In the end, there can be no doubt, as was consistently confirmed by the Agency, that Jay regularly visited with Jay, Jr. as much as he was permitted and that they shared a positive relationship. But the continuing beneficial relationship exception requires more than that.
The Juvenile Court Did Not Abuse Its Discretion By Selecting Adoption Instead of Guardianship
Jay also argues that the court should have selected guardianship as a permanent plan instead of adoption. Absent extraordinary circumstances, adoption is the preferred plan. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) No extraordinary circumstances were present here.
Jay correctly notes that adoption does not guarantee his continuing ability to visit Jay, Jr. since Beth could “decide post-adoption that she is no longer open to Jay’s visitation with his son, [and] he would have no remedy because his rights have been terminated.” But because the court determined that Jay, Jr. was adoptable and no exceptions to termination applied, it necessarily follows that adoption was the appropriate permanent plan for Jay, Jr. (See In re Beatrice M., supra, 29 Cal.4th at p. 1420.)
Our Decision May Properly Be Guided By In re Autumn H. and Its Progeny
Lastly, Jay contends that in analyzing the applicability of the continuing beneficial relationship exception, we should not rely on the “largely theoretical standards set forth in In re Autumn H., supra, 27 Cal.App.4th 567 and In re Beatrice M., supra, 29 Cal.App.4th 1411” because reliance thereon “would render the statutory exception meaningless” and “constitute a violation of Jay’s substantive due process rights by depriving him of his fundamental liberty interest.” This argument has been repeatedly considered and rejected. (See In re Jason J. (2009) 175 Cal.App.4th 922, 936-938; In re Jasmine D., supra, 78 Cal.App.4th 1339, 1347-1350; In re Zachary G. (1999) 77 Cal.App.4th 799, 811; In re Brittany C. (1999) 76 Cal.App.4th 847, 853; In re Casey D. (1999) 70 Cal.App.4th 38, 50-51; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1420.) We need not revisit the argument here.
DISPOSITION
The judgment affirming termination of parental rights as to father Jay H. is affirmed.
We concur: Haerle, Acting P.J. Lambden, J.