Opinion
B302982
06-16-2020
In re A.E., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JORDAN E., Defendant and Appellant.
Jacques Alexander Love for Appellant. No appearance for Respondent. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK187248A) APPEAL from orders of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Affirmed. Jacques Alexander Love for Appellant. No appearance for Respondent. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.
____________________
Jordan E., the father of four-year-old A.E., appeals the juvenile court's December 11, 2019 order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights and ordering adoption as the permanent plan for A.E. Jordan contends the juvenile court erred in failing to apply the beneficial parental relationship exception to the statutory preference for adoption. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
Statutory references are to this code.
Jordan also appeals the juvenile court's December 11, 2019 order denying his section 388 petition seeking either release of A.E. into his custody or reinstatement of family reunification services. However, he fails to present argument or authority in support of this challenge. Thus, Jordan has forfeited any claim of error regarding this order. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 ["[I]t is appellant's burden to affirmatively show error. [Citation.] To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.]"].)
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition and Review Hearings
The facts and procedural history of this case leading up to the setting of the section 366.26 hearing are described in detail in our previous opinion denying on the merits Jordan's petition for extraordinary writ challenging the juvenile court's order setting the hearing. (Jordan E. v. Superior Court (Nov. 19, 2019, B299395) [nonpub. opn.].)
1. Initiation of Dependency Proceedings
A.E. came to the attention of the Los Angeles County Department of Child and Family Services (Department) on May 2, 2016, when the Los Angeles County Sheriff's Department responded to a burglary and vandalism call from Mother. When Deputy Carlson arrived, he discovered A.E. home alone, crying. Jordan was charged with felony child abandonment, burglary and vandalism.
On May 5, 2016, the Department filed a dependency petition on behalf of then eight-month-old A.E. At a hearing on May 10, 2016 A.E. was removed from her parents' custody and placed in foster care. On August 4, 2016, A.E. was placed into the custody of her maternal grandfather, Talmadge K., for eight months. During this time, Talmadge was responsible for all of A.E.'s day-to-day needs, including bathing, feeding, dressing, changing diapers, and putting her to sleep. He enrolled her in a daycare program, and she referred to him as "papa."
2. Jurisdiction Hearing
On February 17, 2017, the juvenile court sustained a dependency petition on behalf of A.E. pursuant to section 300, subdivisions (a) and (b). With regard to Jordan, the juvenile court found he had a "history of violent and assaultive behaviors" toward Mother and a failure to provide adult supervision to A.E., leading to a detrimental and endangering situation for the child. The juvenile court found that Jordan broke into Mother's home on two occasions and, on one of these occasions, chased Mother through her home, breaking a door. On another occasion, Jordan grabbed and twisted Mother's arm causing her to hit her head on the refrigerator. During this incident, Jordan also struck Mother on the head with a frying pan. The juvenile court further found that Jordan left A.E. at home alone without adult supervision, leading to his arrest for felony child abandonment.
Jordan's criminal history includes arrests and convictions for charges relating to infliction of corporal injury on Mother in May 2013 and June 2016. For the June 2016 felony conviction, Jordan was sentenced to 70 days in jail and five years' probation.
3. Disposition Hearing
At the disposition hearing on April 17, 2017, the juvenile court placed A.E. with Mother and ordered family maintenance services. Jordan's case plan included attending programs for domestic violence, anger management, parenting, drug/alcohol services (including on-demand drug testing), individual counseling for "case issues, trauma focused," and monitored visits.
4. Status Review Hearings
Jordan did not visit A.E. from February 17, 2017 to January 2018, and he was noncompliant with all court orders during this time. On January 11, 2018, Mother passed away. A.E. was placed in the custody of her maternal grandmother, Aquendolyn C. One week before Mother's death, Jordan contacted the case social worker to set up visitation with A.E. Jordan's monitored visitations began on January 26, 2018 at the Department's offices. After Jordan became agitated and verbally aggressive, and security arrived, the Department terminated Jordan's first visit with A.E.
On March 20, 2018, A.E. was placed in Talmadge's custody. That same month, Talmadge and Aquendolyn both filed de facto parent requests. The juvenile court granted Talmadge's request on April 27, 2018.
At the continued six-month status review hearing on October 30, 2018, the juvenile court found continuing jurisdiction necessary. Leading up to the hearing, the Department reported that Jordan had "made significant, positive progress" as to his monitored visits with A.E., and he had enrolled in some therapy and parenting education programs. The Department observed that Jordan "regularly engages [A.E.] and is appropriately attentive, affectionate and nurturing," but that he still needs prompting as it relates to A.E.'s toilet-training. Although Jordan had "good quality" visits with A.E., the Department reported that Jordan "continue[d] to demonstrate that he does not take responsibility for things," declined to meet with case social workers, and declined a home assessment. The Department reported Jordan continued to be unwilling to work with the Department to resolve underlying issues of domestic violence and appropriate parental supervision. Jordan also denied that he had physically assaulted Mother, stating that Mother blamed him to avoid being held responsible by the juvenile court. At the October 30, 2018 hearing, the juvenile court determined that Jordan had partially complied with his case plan and ordered the Department to continue providing family reunification services to Jordan.
According to the April 2019 status review report, A.E. was doing well under Talmadge's care, and he was providing for all her needs. The Department also reported that Jordan's visitations with A.E. had slowed down following a child and family team meeting on February 4, 2019. At the meeting, Jordan and his brother were "rude and disrespectful and disruptive to the entire process." Although Jordan was "appropriately attentive, affectionate and nurturing" during visits, between February 4, 2019 and April 2, 2019, Jordan only had two visits with A.E. He also became antagonistic when the Department would not agree to a change to the visitation schedule. The Department continued to observe that Jordan "demonstrated an inability to take responsibility for the sustained allegations," including the levels of violence he perpetrated against Mother and leaving A.E. unsupervised.
At the contested 12-month status review hearing on June 26, 2019 (§ 366.21, subd. (f)), the juvenile court terminated Jordan's reunification services and set a permanency planning hearing for October 8, 2019 under section 366.26. The juvenile court found Jordan was in "minimal" compliance with his case plan, and that he had not made substantial progress in resolving the problems that led to A.E.'s removal from his custody. The juvenile court noted Jordan's failure to enroll in an accredited individual counseling program and his refusal to take a drug test upon reasonable suspicion of use on two occasions, as required by his case plan. The juvenile court determined A.E. would face a substantial risk of harm if placed in Jordan's custody.
5. Jordan's Writ Petition Challenging the Setting of a Section 366 .26 Hearing
Jordan filed a writ petition for extraordinary relief arguing the Department failed to provide him with reasonable services and requesting an additional six months of services. After briefing and oral argument, this court denied Jordan's petition on November 19, 2019. Because the Department provided reasonable services to Jordan for more than three years, we found "Jordan has failed to establish the juvenile court erred in finding the [Department] provided reasonable services to him." We held that, "[g]iven the long history of this case, and [Jordan's] continuing demonstration that he does not accept responsibility for his past actions that led to loss of custody, including domestic violence with [Mother], and continuing argumentative and hostile behavior towards the [Department] personnel, the juvenile court did not abuse its discretion in denying additional reunification services." (Jordan E. v. Superior Court (Nov. 19, 2019, B299395) [nonpub. opn.].)
B. Jordan's Section 388 Petition, the Selection and Implementation Hearing, and Termination of Parental Rights
While Jordan's writ petition was pending, he filed a section 388 petition in the juvenile court requesting either release of A.E. to his custody or reinstatement of family reunification services. On October 8, 2019, the juvenile court combined and continued the hearings for the section 388 petition and the contested section 366.26 hearing to November 19, 2019.
In its interim review report filed November 12, 2019, the Department advised the juvenile court that A.E. remained suitably placed with Talmadge, her maternal grandfather and prospective adoptive parent. The Department reported that Jordan remained on formal probation for his felony domestic violence conviction in 2016, and that he had not provided the Department with updated information regarding his parole case. Jordan was currently living at the same address as Aquendolyn, who was under court order not to have any visits or contact with A.E. The Department also reported that Jordan continued to deny the level of abuse he perpetrated on Mother. The Department asked the juvenile court to terminate Jordan's parental rights and to place A.E. for adoption with Talmadge. A.E.'s attorney joined in these requests.
At the hearing, Jordan explained Aquendolyn was his landlord, but that he did not speak with her frequently because the condominium was managed by a property manager. In its interim review report for the November 19, 2019 hearing, the Department reported that it determined that Father "[was] currently sharing" the condominium with Aquendolyn.
On June 26, 2019, the juvenile court suspended Aquendolyn's visitation with A.E. because of a failure to follow court orders and an ongoing investigation that she had been fraudulently collecting A.E.'s Social Security survivor benefits.
Seven individuals testified at the hearing, which took place on November 19, December 5, and December 11, 2019. Jordan testified about his understanding of why he lost custody of A.E., compliance with his case plan, and his relationship with A.E. Jordan understood A.E.'s case began because he left A.E. home alone and because of his domestic and physical violence towards Mother. In response to the juvenile court's question about how Jordan physically abused Mother, Jordan testified "Pushing. I threw objects. Just more so pushing than anything. And like I said, throwing things." Jordan described the shoving with Mother as going "both ways."
On cross-examination, Jordan contested certain allegations contained in the sustained petition, including stating he "threw a frying pan, and [was] not sure if it hit the mother." Jordan also denied ever breaking into Mother's home. When asked about grabbing and twisting Mother's arm causing her to fall, Jordan testified that is what he meant by "pushing and shoving." Jordan conceded he kicked down Mother's bedroom door and punched a hole in a wall in her home.
Jordan testified about his group classes and individual counseling, which covered anger management and domestic violence, and how he has implemented the tools he has learned in his life. Jordan explained he was with Mother during her pregnancy, was present when A.E. was diagnosed with meningitis, has "always asked to be included in doctor's visits and dental appointments," and has asked to be kept informed about the status of A.E.'s health. Although A.E. was removed from Jordan's custody when she was eight months old, he testified they "remained in a very close relationship, very strong bond" and their visits go "exceptionally well."
Marcola V. Cason, Jordan's therapist at Kheper Life Enrichment Institute, testified about her individual counseling sessions with Jordan. Although she asked Jordan for case history reports prior to conducting sessions with Jordan, Cason did not review any files from the dependency proceedings before counseling Jordan. Her understanding of the case came from Jordan, who explained the case began when he left A.E. during a fight with Mother, and there had been "a lot of physical violence between him[self] and [Mother]" in the form of "pushing," "hitting," and "mutual combat." Cason testified that Jordan told her a lot of [the physical violence] happened because [Mother] knew [Jordan] had nowhere to go. He was living there."
Jordan also did not notify the Department that he enrolled in therapy with Cason, which prevented the Department from sharing case information and therapy objectives with Cason. After Jordan concluded his counseling with Cason, she reviewed some files from the dependency proceedings. Cason's assessment of Jordan did not change after reviewing the case files.
Cason, licensed as a marriage and family therapist for less than a year at the time of the hearing, testified that Jordan "came pretty well-prepared[] [s]o there was not a lot of therapy for me to do with him" and "there wasn't a whole lot to teach [him]." After completing 14 individual counseling sessions with Jordan, which began 26 days before the June 26, 2019 hearing, Cason believed he was "finished" with working on issues relating to domestic violence. Cason also testified that Jordan's efforts to have more "in depth" visitations with A.E. to create "a memory to hold," such as going to the movies or an amusement park, indicated to her that Jordan was equipped to provide A.E. with parental care.
At the June 26, 2019 hearing, Jordan did not disclose that he began therapy with Cason.
Inther G., A.E.'s paternal great grandmother, testified about the six or seven visits she observed between A.E. and Jordan. According to Inther, A.E. was excited and happy to see Jordan, and greeted him by waving, smiling, and saying "hi daddy." When the visits were over, they hugged and kissed, and A.E. would tell Jordan she wanted to go home with him. Their visits included eating meals and going to the movies or to the park. When A.E. was sick, Jordan brought cough medicine to the visits. Inther explained that Jordan provided discipline to A.E. by instructing her on how things will go and if she did not follow his instructions, there would be consequences. Inther testified that Jordan has shown an increasing concern about his time with A.E. and, in particular, the lack of time he has been able to spend with her. Inther did not know why A.E. was removed from Jordan, and she never discussed the domestic violence issues with Jordan.
Talmadge testified about his role as A.E.'s caregiver, his relationship with Jordan, and observations he had made about A.E. when she visited with Jordan. Talmadge served as A.E.'s primary caregiver for eight months starting in August 2016, and since March 2018. Talmadge characterized himself as the most consistent person in A.E.'s life since she was born. He described his daily activities with A.E., which included dressing her, feeding her, taking her to and picking her up from school, playing with and reading to her, bathing her, and putting her to bed. Talmadge described A.E. as "a very happy girl" and that his "role and [his] job is to protect her innocence."
Talmadge has known Jordan since July 2015 and characterized his relationship with Jordan as "contentious." He testified that Jordan has never shown him any remorse and that "[h]e is the same person that I remember him from day one." Talmadge provided several examples of when Jordan's behavior changed "at a drop of a dime . . . ." On one occasion, angry that Talmadge prohibited him from having a visit with A.E., Jordan sent a video of himself having sex with Mother to Talmadge. Talmadge further testified that, although he did not have an appointment, on August 30, 2019, Jordan came to A.E.'s preschool and became confrontational in front of A.E.
After this incident on August 30, 2019, A.E.'s preschool advised the Department that it "cannot and will not be an intermediary for [Jordan's] pick-ups."
Talmadge described A.E. as "frosty, kind of hesitant to meet with [Jordan][,]" but that "she will warm up to him." He agreed A.E. and Jordan had "some loving moments" together. Talmadge testified that A.E. saw Jordan "as a person that brings her candy and it's playtime." Talmadge added that Jordan had "provided nothing for [A.E.'s] care." In terms of keeping in touch with A.E., Talmadge explained that back in 2016, there was a schedule set up when Jordan could call A.E. Talmadge estimated Jordan called about 40 percent of the time. In June 2019, Jordan told the case social worker he wanted to speak with A.E. on a daily basis, so an additional day—Saturday—was added to the schedule. From June 2019 to December 2019, Jordan called on one Saturday. Since October 2018, Talmadge has not been physically present at visitations between A.E. and Jordan, but Talmadge noted "there's no learning activities" taking place because A.E. had never come home with any school projects they completed together.
Jennifer Carter, the director of the preschool A.E. has attended since around February 2018, testified that when A.E. returned to preschool after visits with Jordan, she would act out. In April 2019, Carter sent an email to the case social worker expressing her concern that, after returning to school from visits, A.E. had multiple incidents of defecating in her clothes and was defiant with teachers, including hitting and throwing sand. In May 2019, Carter reported that, after her return from a visit with Jordan, A.E. was upset and said she was "'very sad'". In August 2019, Carter sent another email to the case social worker explaining that A.E. continued to act out on the days she visited with Jordan; A.E. "open-hand slapped another child, pushed someone over and choked a third child by the neck." Carter noted the school had not previously observed these types of behaviors in A.E. Carter noticed A.E.'s negative behavior diminished when longer stretches of time passed between visits with Jordan. Carter met with Jordan on one occasion, which she described as "a reasonable, lovely conversation," during which Jordan expressed concern about A.E.'s well-being.
In an email sent to the Department on August 30, 2019, Carter advised that she informed Jordan that, after she returns from visits with him, A.E. was a "terror," meaning that A.E. "has a strong and noticeable reaction on days of her visits."
Rolando Rodriguez, the human services aide who monitored approximately 25 visits between Jordan and A.E., testified generally about their visits. Rodriguez testified that Jordan appropriately addressed issues with A.E. about misbehaving at school, and Jordan was the person who would change her diaper, if needed, during visits. A.E. would tell Jordan that she loved him.
Rodriguez testified specifically about two incidents. The first incident took place at a restaurant on May 8, 2019. The visit was with Aquendolyn, and the location was confidential; yet Jordan showed up at the visit unannounced, stating "I didn't know we had a visit here at [the restaurant]." Rodriguez asked Jordan six times to speak privately, but Jordan ignored him and sat with A.E. and Aquendolyn. Rodriguez tapped Jordan on the shoulder, and Jordan responded "don't touch me, bro." Rodriguez informed Jordan he would need to call the police, and Jordan responded "do what you have to do." Jordan, agitated, eventually went outside and did not give Rodriguez an opportunity to explain that Jordan's visit was to take place separately later in the day. Jordan later apologized to Rodriguez. The second incident took place at a library, where Jordan was supposed to help A.E. with a school assignment. Jordan was unable to complete the assignment with A.E. because she was running around, and Jordan could not redirect her attention to the assignment.
Dionne Springer, the current case social worker, testified briefly regarding Jordan's counseling at Anger Me Not and the incident that took place at the restaurant on May 8, 2019.
The juvenile court denied Jordan's section 388 petition because it did not find a change in circumstances and it was not in A.E.'s best interest for her to be in Jordan's custody. The juvenile court found the incidents at the restaurant in May 2019 and at A.E.'s preschool in August 2019, at which Jordan was "very aggressive," "combative," and "argumentative" in front of A.E., "contrary to what he's saying about learning from domestic violence." The juvenile court also found Jordan "minimized" the domestic violence he perpetrated on Mother, describing it as "mutual combat," even though Cason testified "taking accountability is incredibly important in terms of learning from domestic violence and past mistakes."
Cason testified, "It's very critical [not to minimize the extent of the violence] because minimizing is also a form of denying. If the person is minimizing, then they are not ready to look and take accountability for what they've done."
The juvenile court went on to find Cason's testimony and Inther's testimony "irrelevant" because "neither one had knowledge of the true issues in this case, which was [Jordan's] aggressive, abusive behavior which included extreme vandalism, breaking doors, breaking windows, pulling [Mother] by her hair, hitting her, not throwing but hitting her with a frying pan and pouring juice on her."
With regards to the termination of parental rights and selecting a permanent plan for A.E., the juvenile court found A.E. was adoptable, and Jordan failed to establish the parental benefit exception. The juvenile court observed that three and a half years after A.E.'s removal, Jordan "is still having monitored visits, because he's shown repeatedly that he cannot manage his emotions and show control and act appropriately in front of his daughter . . . ." The juvenile court acknowledged Jordan has a "friendly and loving relationship" with A.E., but that "he's not acted in a parental role," including absence from ensuring her educational and medical needs are met. The juvenile court found that Jordan "maintained regular visitation with the child and has not established a bond with the child." The juvenile court further ruled "that any benefit to the child from his/her relationship with the parent(s) is outweighed by the physical and emotional benefit the child will receive through the permanency and stability of adoption. . . ."
Jordan timely appealed.
DISCUSSION
A. The Juvenile Court Did Not Err in Terminating Jordan's Parental Rights
1. Governing Law and Standard of Review
The purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) Once the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529, 532 (S.B.) ["[i]f adoption is likely, the court is required to terminate parental rights, unless specified circumstances compel a finding that termination would be detrimental to the child"]; In re Celine R. (2003) 31 Cal.4th 45, 53 ["[I]f the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child."]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a "compelling" interest in "providing stable, permanent homes for children who have been removed from parental custody . . ." and the court then must "concentrate its efforts . . . on the child's placement and well-being, rather than on a parent's challenge to a custody order"]; see also In re Breanna S. (2017) 8 Cal.App.5th 636, 645-646; In re Noah G. (2016) 247 Cal.App.4th 1292, 1299-1300.)
Section 366.26 requires the juvenile court to conduct a two-part inquiry at the selection and implementation hearing. First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250 (Cynthia D.); In re D.M. (2012) 205 Cal.App.4th 283, 290.) Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute provides "the court shall terminate parental rights" unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B); see Cynthia D., supra, 5 Cal.4th at pp. 250, 259 [when the child is adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is "'relatively automatic'"].)
One of the statutory exceptions to termination is contained in section 366.26, subdivision (c)(1)(B)(i), which permits the court to order some other permanent plan if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception requires the parent to prove both that he or she has maintained regular visitation and that his or her relationship with the child ""'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." [Citation.]' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643; accord, In re Breanna S., supra, 8 Cal.App.5th at p. 646; In re Amber M. (2002) 103 Cal.App.4th 681, 689; see In re Autumn H. (1994) 27 Cal.App.4th 567, 575 ["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."].)
A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. (See In re Angel B. (2002) 97 Cal.App.4th 454, 466 ["[a] biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]"].) No matter how loving and frequent the contact, and notwithstanding the existence of an "'emotional bond'" with the child, "'the parents must show that they occupy "a parental role" in the child's life.' [Citations.]" (In re K.P. (2012) 203 Cal.App.4th 614, 621; In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Factors to consider include ""'[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs.'"" (In re Marcelo B., supra, 209 Cal.App.4th at p. 643.) Moreover, "[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The parent has the burden of proving the statutory exception applies. (In re Breanna S., supra, 8 Cal.App.5th at p. 646; accord, In re I.W., supra, 180 Cal.App.4th at p. 1527; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The court's decision a parent has not satisfied this burden may be based on any or all of the component determinations—whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child . . . ." (§ 366.26, subd. (c)(1)(B); see In re K.P., supra, 203 Cal.App.4th at p. 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) We review for abuse of discretion the determination whether the benefit to the child derived from preserving parental rights is sufficiently compelling to outweigh the benefit achieved by the permanency of adoption. (In re K.P., supra, 203 Cal.App.4th at pp. 621-622; In re Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) When the issue on appeal turns on a failure of proof at trial, we ask whether the evidence compels a finding in favor of the appellant as a matter of law. (See In re I.W., supra, 180 Cal.App.4th at pp. 1527-1528; see also In re Aurora P. (2015) 241 Cal.App.4th 1142, 1163.)
The Supreme Court granted review in In re Caden C., review granted July 24, 2019, S255839, and asked the parties to brief and argue the following issues: "(1) What standard of review governs appellate review of the beneficial parental relationship exception to adoption? (2) Is a showing that a parent has made progress in addressing the issues that led to dependency necessary to meet the beneficial parental relationship exception?"
2. Jordan Failed To Establish the (c)(1)(B)(i) Exception to Termination of Parental Rights
Jordan argues the juvenile court erred in terminating his parental rights because the beneficial parent-child relationship exception to termination under section 366.26, subdivision (c)(1)(B)(i), applies. Emphasizing he established the beneficial parental relationship with A.E. because he maintained "consistent contact" with her and A.E. "would benefit by continuing the relationship," Jordan argues "there is a compelling reason termination of parental rights would be detrimental to the child." However, the evidence does not compel a finding that a father-child bond existed and that it was, therefore, an abuse of discretion for the juvenile court to conclude the parent-child relationship exception to termination of parental rights had not been established. The evidence falls short of that required to reverse the juvenile court's ruling.
Jordan relies primarily on his weekly visits with A.E. and her excitement to see him, evidenced by the fact she gives him hugs and kisses and tells him she loves him, to establish the existence of a beneficial parental relationship with her. But a loving relationship by itself based on these monitored "pleasant visits," which occurred no more often than twice a week and began two years into A.E.'s case, is insufficient to establish a parent-child relationship. (In re I.W., supra, 180 Cal.App.4th at p. 1527 [in order to apply the exception, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits . . . [Citation.]"]; In re Anthony B. (2015) 239 Cal.App.4th 389, 396 [fact that children were happy to see parent during visits does not compel a finding a parental relationship existed absent some other evidence of a "'significant, positive, emotional attachment from child to parent.' [Citation.]"]; In re Brittany C. (1999) 76 Cal.App.4th 847, 854 ["We also interpret the statute as requiring the parent to show that he or she has a parent/child relationship with the child, rather than a friendship. While friendships are important, a child needs at least one parent."]; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 [termination of the mother's parental rights affirmed despite evidence the child and mother were emotionally attached and well-bonded, and the child knew appellant was her mother and had called her "Mommy"].)
The record contains evidence contradicting the existence of a parent-child bond between A.E. and Jordan. Other than being present at A.E.'s birth, there is no evidence Jordan participated in any of A.E.'s medical or dental appointments. Before Mother's death in January 2018, Jordan did not visit A.E. for almost one year. During the first two years of A.E.'s case, Jordan only visited her a handful of times, and during February and March 2019 Jordan saw A.E. only twice. During the nearly four years of dependency jurisdiction, Jordan did not progress past monitored visitation with A.E., and he neither maintained the telephone call schedule with A.E. nor made the expected number of calls to her.
Jordan's evidence thus falls far short of the "uncontradicted and unimpeached" evidence that is "of such a character and weight" that a beneficial parental relationship with A.E. is established as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528, citation omitted. ["It is not our function to retry the case. We therefore decline mother's implicit invitation to review the record so as to recount evidence that supports her position (reargument) with the object of reevaluating the conflicting, competing evidence and revisiting the juvenile court's failure-of-proof conclusion. [Citation.]"]; accord, In re K.P. supra, 203 Cal.App.4th at p. 621.)
Relying on S.B., supra, 164 Cal.App.4th 289, Jordan correctly argues "the beneficial parent-child relationship exception does not require a parent to be in a daily parental role." However, in S.B., there was an existing parental relationship at the time of removal because the father had been the primary caregiver for the child's first three years. (Id. at p. 298.) When the child was removed from his care, the father "immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and maintained consistent and regular visitation with S.B." (Ibid.) After removal, the child continued to display a strong attachment to father. The father maintained consistent and appropriate visits with the child throughout the dependency proceedings, and he complied with "every aspect" of his case plan. (Ibid.)
The court in S.B. recognized that a parental relationship "typically arises from day-to-day interaction, companionship and shared experiences, and may be continued or developed by consistent and regular visitation after the child has been removed from parental custody. [Citation]." (Id. at pp. 299.-301) The court concluded the father "continued the significant parent-child relationship despite the lack of day-to-day contact with S.B. after she was removed from his care." After concluding that father's devotion to the child was "constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health," the court held "that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]. [Citation.]'" (Id. at pp. 299-301.) Notably, in a subsequent decision, the same court emphasized that "S.B. is confined to its extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558-559 ["[W]e once again emphasize that S.B. is confined to its extraordinary facts. It does not support the proposition that a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact."].)
The "extraordinary facts" supporting the outcome in S.B. are not present here. Jordan is not arguing that he was A.E.'s primary caregiver for a significant period of her life and that, since losing custody, he "maintained consistent and regular visitation" with A.E. In fact, Jordan has not established he was ever A.E.'s primary caregiver. He also has not maintained consistent visitation since losing custody. Far from immediate recognition, Jordan still has not taken responsibility for his actions that led to his loss of custody. The record contains ample evidence that Jordan has "not acted in a parental role," as found by the juvenile court. (See In re Casey D., supra, 70 Cal.App.4th at p. 51 ["The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child."].)
Even if Jordan had established a parent-child bond, the juvenile court's determination that the benefit A.E. derived from continuing her relationship with Jordan did not outweigh the well-being A.E. would gain by adoption was well within its discretion. While A.E. expressed her love for Jordan and she enjoyed their weekly, monitored visits together, this evidence falls far short of demonstrating a substantial emotional attachment that would cause A.E. to suffer great harm if severed. (See In re Breanna S., supra, 8 Cal.App.5th at p. 648 [evidence that children enjoyed mother's monitored visits fell "far short of demonstrating a substantial emotional attachment that would cause the children to suffer great harm if severed. [Citations.]"]; In re Autumn H., supra, 27 Cal.App.4th at p. 575 [exception applies only if the severance of the parent-child relationship would "deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . ."].)
In considering the parent-child relationship, the juvenile court properly focused on Jordan's unresolved issues that caused A.E. to become a dependent of the court. (See In re Noah G., supra, 247 Cal.App.4th at p. 1302.) Jordan did not complete all aspects of his case plan; in fact, the juvenile court found Jordan was only in "minimal" compliance with his case plan. Jordan continued to demonstrate that he does not accept responsibility for his past actions that led to his loss of custody. In his testimony describing his abuse of Mother as "mutual combat," Jordan minimized the extent and nature of the violence he inflicted on Mother. Jordan's recent incidents of "combative" and "aggressive" behavior occurred in A.E.'s presence. However, if we did not consider Jordan's failure to address the issues leading to dependency jurisdiction, we would still reach the same conclusion that Jordan failed to carry his burden to establish the beneficial parent-child relationship.
When the juvenile court balanced the benefit of adoption and the possible detriment from terminating A.E.'s relationship with Jordan, there is no dispute that Talmadge, the prospective adoptive parent, has consistently provided A.E. with a safe and nurturing environment in which she is happy and thriving. For well over half of her life, Talmadge has fulfilled the role of A.E.'s parent and her need for permanency and stability. (See In re Anthony B. (2015) 239 Cal.App.4th 389, 396 [parent-child relationship exception requires parent to demonstrate "relationship remained so significant and compelling in [the child's] life that the benefit of preserving it outweighed the stability and benefits of adoption"]; In re K.P., supra, 203 Cal.App.4th at p. 623 [even if mother and child had a solid parental bond, the court did not abuse its discretion in finding mother had failed to satisfy the (c)(1)(B)(i) exception; "[w]e cannot say that the juvenile court abused its discretion when it concluded that any detrimental impact from severance" of that relationship was outweighed by the benefits that would come from adoption]; In re Bailey J., supra, 189 Cal.App.4th at p. 1315 [juvenile court determines "the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.]"] (italics omitted).)
In sum, the juvenile court's finding that the benefits to A.E. of adoption outweighed those from continuing her relationship with Jordan was within its discretion.
Citing In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome) and In re Fernando M. (2006) 138 Cal.App.4th 529 (Fernando), Jordan argues "the court should have ordered a permanent plan of legal guardianship to preserve and protect the positive relationship [A.E.] had with [Jordan]." Jordan's reliance on Jerome and Fernando is misplaced. In Jerome, there was insufficient evidence to support the adoptability finding. (84 Cal.App.4th at p. 1207.) In addition, at the time of the section 366.26 hearing, the child was nine years old, he had lived with mother the first six and one-half years of his life, and he was having unsupervised overnight visits with mother. The mother was the only woman in his life with whom the child had a beneficial relationship. (In re Jerome D., 84 Cal.App.4th at p. 1207.) A psychologist opined child and mother shared a "'strong and well[-]developed' parent-child relationship . . . ." and the juvenile court "characterized their relationship as 'parental'." (Ibid.) Under these circumstances, the court held that "[a] permanent plan of guardianship or long-term foster care would have allowed [the child] to remain in that home yet maintain his relationship with Mother." (Id. at p. 1208.) In Fernando, a special needs child lived almost his entire life in his grandmother's home with his two siblings who were not dependents of the dependency court. Adoption would have removed the child from the only home he knew and separated him from his two siblings. (In re Fernando, supra, 138 Cal.App.4th at pp. 537-538.) In this situation, under the relative caregiver exception in former section (c)(1)(D), the court held a legal guardianship was appropriate to prevent detriment to the child. (Id. at pp. 538-539.) Effective January 1, 2008, the Legislature replaced the relative caregiver exception in section (c)(1)(D) with similar language in section (c)(1)(A) (Stats. 2007, ch. 565, § 4, p. 4575), which provides that the caregiver relative must be "unable or unwilling to adopt the child." (§ 366.26, subd. (c)(1)(A); see In re K.H. (2011) 201 Cal.App.4th 406, 417-419 ["T]he juvenile court made the findings necessary to support application of the relative caregiver exception, namely that the grandparents were unwilling to adopt because of circumstances that did not include their unwillingness to accept legal or financial responsibility for the children."].)
DISPOSITION
The juvenile court's December 11, 2019 orders are affirmed.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PERLUSS, P. J.
SEGAL, J.