Opinion
G057677
09-26-2019
In re Logan G. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GARY G. et al., Defendants and Appellants.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant, Gary G. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant, Kim K. Leon J. Page, County Counsel, Karen L. Christensen and Deborah Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP0462, 16DP0463) OPINION Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant, Gary G. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant, Kim K. Leon J. Page, County Counsel, Karen L. Christensen and Deborah Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
* * *
"In 2016, the Orange County Social Services Agency (SSA) took the children of Kim K. (mother) and Gary G. (father) into protective custody. After providing reunification services for over two years, the juvenile court found that the return of custody to the parents would present a substantial risk of detriment to the children's safety, protection, and well-being. The court terminated reunification services and set a future hearing regarding parental rights." (Kim K. et al. v. Superior Court (Dec. 20, 2018, G056864) [nonpub opn. denying writ of mandate/prohibition].)
In March 2019, the juvenile court conducted a hearing under Welfare and Institutions Code Section 366.26. The court found the children were likely to be adopted and terminated parental rights. In this appeal, mother and father argue the court erred by: denying father's request for a bonding study, denying father's request to recall a child witness, finding that adoption was likely, and terminating parental rights.
Subsequent undesignated statutory references are to the Welfare and Institutions Code.
We disagree and affirm the juvenile court's orders.
I
FACTS AND PROCEDURAL BACKGROUND
"In April 2016, three children—Jadien (13 years old), Logan (8 years old), and Peyton (7 years old)—were living with mother and father in an abandoned house in Garden Grove that had been taken over by squatters. [(Fn. omitted.)] SSA noted that: 'The entire home was filled with trash, insects, cobwebs, moldy clothing, rotted food and broken furniture.' A registered sex offender had been living on the property. SSA took the children into protective custody.
The quoted portion of the facts and procedural background are from this court's opinion in Kim K. et al. v. Superior Court, supra, G056864. Jadien and Peyton are not parties to the instant appeal, but they are referenced where needed to provide context.
"Juvenile Dependency Petition
"In May 2016, SSA filed a juvenile dependency petition and prepared a detention report describing the family's living conditions. SSA alleged that mother and father had substance abuse problems and a history of domestic violence. Jaiden said that mother and father used to hit each other, but not anymore, 'at least they don't do that in front of us.' Logan was dirty and was wearing dirty clothing. Peyton's teacher reported that she came to the school looking dirty and malnourished. The court detained the children and granted the parents monitored visitation. The court ordered SSA to provide 'reunification as soon as possible to reunify the child[ren] with family.'
"Reunification Services
"Mother and father submitted on the accusations alleged in the petition. The children remained in out-of-home care while the parents were given reunification services. Mother's case plan included individual counseling, parent education, substance abuse treatment, substance abuse testing, and a twelve-step program. Mother checked herself into a detox facility, but she checked out five days later. Mother did not attend parenting classes and was discharged from therapy for failing to show. Police arrested mother for violating a restraining order (returning to the previous residence).
"Six-Month Review Period
"In February 2017, the parents were homeless and sleeping in father's car. Mother and father reported that they had relapsed and were using methamphetamine. Mother left a sober living home. Mother was terminated from her parenting program. Mother had missed 17 drug tests and tested negative five times. Father had a warrant for his arrest (a probation violation). The parents were occasionally visiting the children, but the parents cancelled 17 visits and ended a few visits early.
"In March 2017, mother was residing in a new sober living home, but she was struggling to pay the rent and was looking for employment. Mother was not participating in other case plan services. Mother reported being sober for five days. Mother enrolled in an inpatient drug treatment program and completed the detox portion of the program, but she was discharged from the program because she was unable to pay. Mother reported that she had relapsed and was using methamphetamine. The parents were homeless and living in father's car. They had not visited the children for several weeks.
"12-Month and 18-Month Review Periods
"In June 2017, mother attempted to enter another residential drug treatment program, but the program did not accept her insurance. Mother reported being sober since May, but she was not compliant with monitoring requirements. Mother had not attended parenting classes. Father spent some time in jail and his whereabouts were unknown.
"In September 2017, mother began an outpatient drug treatment program, but did not comply with a drug patch test. Mother missed drug tests in October, which counted as positive tests. However, as of December 2017, mother was compliant with her outpatient drug treatment program and had been testing negatively.
"The children's caregivers reported that the children were doing well and were happy in their home. The children reported feeling safe and comfortable. Peyton became very attached to her caregivers, calling them mommy and daddy. Peyton wanted her caregivers to adopt her. Logan refused to discuss adoption. Mother visited inconsistently. The caregivers reported that the children became anxious before visits; the children were nervous about whether mother would show up and were nervous about seeing her. Sometimes after the visits, Payton had trouble sleeping and would come into the caregivers' bed. Mother continued to tell the children that they would be living with their parents shortly, and the children returned from the visits anxious and confused.
"24-Month Permanency Review Hearing
"The juvenile court conducted a permanency review hearing over multiple dates in August and September 2018. [(Fn. omitted.)] (§ 366.22.) The court found that reasonable reunification services had been offered; the court found that returning the children to parental custody would create a substantial risk of detriment. The court terminated reunification services and set a section 366.26 hearing. The court allowed for continued monitored visitation by the parents." (Kim K. et al. v. Superior Court, supra, G056864.)
Subsequent Proceedings
On March 13, 2019, the juvenile court began the section 366.26 hearing, which spanned four days over a three-week period. On the first day, father requested that the court order a bonding study. The court denied the motion as untimely. On March 26, 2019, at the conclusion of County Counsel's case, father asked for leave to recall Logan for further testimony. The court denied father's request.
On March 28, 2019, the juvenile court found the children were adoptable. The court terminated parental rights after finding that the beneficial relationship exception did not apply. The father and mother filed notices of appeal.
II
DISCUSSION
The parents contend the juvenile court erred by: A) denying father's request for a bonding study; B) denying father's request to recall Logan as a witness at the section 366.26 hearing; C) finding that Logan was adoptable; and D) failing to apply the beneficial relationship exception to the termination of parental rights. A. The Juvenile Court's Denial of Father's Request for a Bonding Study
The parents joined in each other's arguments.
A juvenile court may appoint an expert to conduct "a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored." (In re S.R. (2009) 173 Cal.App.4th 864, 869.) However, a juvenile court has no statutory obligation to order a bonding study. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339-1340.) "The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study." (Id. at p. 1341.) We will reverse for an abuse of discretion only if the court's decision is arbitrary, capricious, or exceeds the bounds of reason. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.)
A juvenile court may properly deny a parent's request for a bonding study when the request is untimely. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1194 (Richard C.).) In Richard C., the juvenile court declared two young boys as dependent children in March 1996. (Ibid.) The mother did not comply with the reunification plan. In September 1997, the court terminated reunification services and set a hearing for a permanent placement plan. (Ibid.) In January 1998, the mother made an oral motion for a bonding study at the hearing. The juvenile court denied the motion, terminated parental rights, and found the children to be likely candidates for adoption. (Id. at pp. 1193-1195.) The Court of Appeal affirmed, finding that "the juvenile court did not abuse its discretion in denying [the mother's] motion for a bonding study." (Id. at p. 1197.)
The Richard C. court reasoned: "'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.'" (Richard C., supra, 68 Cal.App.4th at p. 1196.) "Bonding studies after the termination of reunification services would frequently require delays in permanency planning. Similar requests . . . could be asserted in nearly every dependency proceeding where the parent has maintained some contact with the child." (Id. at p. 1197.) The court held: "While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Ibid.)
Here, father's request for a bonding study was made about six months after the juvenile court had terminated reunification services. Just as in Richard C., the father's motion was made orally at the beginning of the section 366.26 hearing. The court found that father's motion was untimely and delaying the section 366.26 hearing "another six to eight weeks with the possibility of further delays could be unduly prejudicial to the children." Father provided no evidence of compelling circumstances that would have justified the inherent delay that would have ensued had the court granted the motion.
The juvenile court's ruling was not beyond the bounds of reason based on the overall scheme of the dependency statutes. The court came to a reasoned decision based on father's untimely request. Thus, we find the court did not abuse its discretion in denying father's motion for a bonding study. B. The Juvenile Court's Denial of Father's Request to Recall Logan as a Witness
"Except as otherwise provided by law, the court in its discretion shall regulate the order of proof." (Evid. Code, § 320.) "Every court shall have the power to do all of the following: [¶] (1) To preserve and enforce order in its immediate presence. [¶] (2) To enforce order in the proceedings before it . . . . [¶] (3) To provide for the orderly conduct of proceedings before it . . . ." (Code Civ. Proc., § 128, subd. (a).)
"The trial judge has inherent and statutory authority to control the order of proceedings, regulate the order of proof, provide for the orderly conduct of the proceedings, and control the litigation." (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 23.) "Specifically, the court exercises discretion in ruling on a request to call a witness out of order, and its ruling will not be disturbed absent a clear showing of abuse of discretion." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1413.)
On Wednesday, March 13, 2019, the juvenile court began the section 366.26 hearing. At the beginning of the hearing, the court said: "The next court date for this is going to be March 20th at 1:30. The social worker is ordered to have the children available for testimony exactly at 1:30 . . . . The children are going to be brought here by foster parents." The court began the hearing by listening to the testimony of a tribal representative. The next witness was the children's social worker. During her testimony, the court said: "This is a good point to stop. It's almost 4:30. [W]e're not even close to being done. So everybody remember exactly where we stopped." The court said, "I just want . . . . [E]veryone to be aware the children go first on Wednesday and they start at 1:30. However, I'm going to order the social worker back here at 3:00. My hope is that we'll be done with the children in about an hour and a half and then we'll resume . . . with exactly where you were."
The juvenile court considered the application of the Indian Child Welfare Act (ICWA) and made necessary rulings. (25 US.C. § 1901 et seq.) However, no party is challenging the court's ICWA rulings; thus, we need not address those issues on appeal.
On March 20, 2019, the juvenile court resumed the section 366.26 hearing in the afternoon. Peyton and Logan testified. Logan testified he and his sister were brought to the hearing by their foster parents, who were also the prospective adoptive parents. Logan testified that it was not "an option" to live with his biological parents anymore, but if he could live with his mother, he would want to. Logan said that given a choice, he would prefer to live with his biological parents. Following the children's testimony, the children's prospective adoptive mother testified.
On March 26, 2019, the testimony of the social worker resumed and concluded. County Counsel rested its case. Father's counsel said, "I would ask for leave to call Logan again just based on the social worker's testimony regarding the fact that she believes that Logan has a first preference to be with biological mom and dad, but somehow doesn't necessarily object to adoption." The court said: "Your request is denied."
The juvenile court properly enforced the orderly scheduling of its proceedings, as the law allows. (See Code Civ. Proc., § 128, subd. (a)(2).) The court's apparent goal was to minimize the disruption to the children's lives. The court arranged for the foster parents to transport the children to court; therefore, the court took measures to ensure the foster parents and the children were able to testify on the same afternoon. We find no abuse of the court's discretion in denying the father's request to recall Logan as a witness. The granting of the request after Logan had testified the prior week would likely have caused disruptions to the lives of the witnesses. Further, the court had already allowed father the opportunity to cross-examine Logan. The social worker's intervening testimony was not dissimilar to the SSA reports. Thus, we find that the juvenile court did not abuse its discretion by denying father's request to recall Logan as a witness. C. The Juvenile Court's Finding That Logan Was Adoptable
At a section 366.26 hearing, the juvenile court determines a permanent plan and may order one of three alternatives: adoption, guardianship, or long-term foster care. (§ 366.26, subd. (b); see In re J.C. (2014) 226 Cal.App.4th 503, 528.) If the child is adoptable, "'there is strong preference for adoption over the alternative permanency plans.'" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) If the court finds that the child is adoptable, then the court must terminate parental rights. (See § 366.26, subd. (c)(1).) "[T]o avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply." (In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
A juvenile court cannot terminate parental rights unless it finds by clear and convincing evidence "that it is likely the child will be adopted." (§ 366.26, subd. (c)(1).) The focus of the adoptability inquiry is on the child, "and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family." (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) A proposed adoptive parent need not be identified and ready to adopt, but "there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
"'"Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family."'" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
"On review, we determine whether the record contains substantial evidence from which the juvenile court could find clear and convincing evidence the child was likely to be adopted within a reasonable time." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) In an appeal, it is the parent's "'burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.'" (In re Jose C. (2010) 188 Cal.App.4th 147, 158.) "In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
On December 27, 2018, SSA filed a report prior to the section 366.26 hearing regarding Logan and Peyton, who were then 11 years old and 10 years old, respectively. The report identified Shanley and Phillip as the children's present caretakers and prospective adoptive parents. The report noted: "The prospective adoptive parents want to make a difference in a child's life and start a family. They have always known and discussed the idea of wanting to foster and adopt a child."
The report noted: "The prospective adoptive parents met the children, Logan and Payton, while volunteering at summer camp in August 2016. They felt an instant connection with the children and wanted to help them, along with their sister, Jaiden. The children have been placed in the home since September 14, 2016 and have adjusted well." The report stated that the prospective adoptive parents, Shanley and Phillip, "have a strong desire to provide unconditional love to their foster children and to advocate for the children's current and future needs. . . . The prospective adoptive mother's flexible work schedule lends itself well to take the children to all of their appointments. Additionally, they have plentiful income earnings."
The social worker testified at the hearing. She testified that as for Peyton, adoption is what she wants. As to Logan: "He has never really refused [adoption as an] option. He just would say if given a choice, he would prefer to go live with his biological parents and if not, then be adopted." Shanley also testified at the section 366.26 hearing. Shanley opined that it is the children's best interest to stay together. Shanley said that she is committed to the sibling bond: "We believe that it is in their best interest to stay together, yes."
At the end of the section 366.26 hearing, the court ruled that "as far as the children being adopted, they are both generally and specifically adoptable. They are both healthy, bright, delightful children and they're specifically adoptable because there is a family standing by ready to do so." Here, based on the SSA report, the testimony of the children at the hearing, and the testimony of the prospective adoptive mother, there is substantial evidence to support the juvenile court's finding that the children were "likely to be adopted within a reasonable time." (See In re Michael G., supra, 203 Cal.App.4th at p. 589.)
The parents argue: "Logan was four months shy of turning 12 at the time of the final section 366.26 hearing." As a result of his age, the parents contend: "Logan's desire to remain with his parents and to continue to have a relationship with them was a legal impediment to adoption." We disagree.
Generally, there is an exception when: "A child 12 years of age or older objects to the termination of parental rights." (§ 366.26, subd. (c)(1)(B)(ii); see Fam. Code, § 8602 ["The consent of a child, if over the age of 12 years, is necessary to the child's adoption"].) However, at the time of the section 366.26 hearing, Logan was 11 years old; therefore, under the plain language of the statute, the "objection exception" was not operative. Further, even where the exception applies, it is the parent's burden to establish that the child is, in fact, objecting to the adoption. (See In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334-1335 [substantial evidence supported finding that mother did not meet her burden to show that son objected to termination of parental rights; 14-year-old testified that he would not want to be adopted if it meant that he could never see mother again, but otherwise consistently expressed desire to live with and be adopted by aunt and uncle].)
Here, while Logan was apparently somewhat indecisive, there is no indication in the record that Logan ever objected to adoption generally, nor did Logan specifically object to the planned adoption by the prospective adoptive parents. According to the SSA report: "Logan has expressed ambivalence regarding being adopted by the prospective adoptive parents. If given a choice, Logan would, for the most part, like to return to his biological mother's care, but becomes uncertain if his sisters were to remain in the adoptive placement." Indeed, at the hearing, the social worker testified Logan "didn't completely refuse an adoption. He said if he could not go home, he was open to being adopted." (Italics added.)
Logan's testimony at the section 366.26 hearing was essentially the same; Logan testified that it was not "an option" to live with his parents anymore, but if he could live with his mother, he would want to. In sum, based on our review of the entire record, we find substantial evidence to support the juvenile court's ruling that Logan was "likely to be adopted within a reasonable time." (See In re Michael G., supra, 203 Cal.App.4th at p. 589.) D. The Juvenile Court's Refusal to Apply the Beneficial Relationship Exception
The so-called "benefit exception" to the termination of parental rights exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[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); see In re Anthony B., supra, 239 Cal.App.4th at p. 395.) In deciding whether the benefit exception applies, "'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.'" (In re J.C., supra, 226 Cal.App.4th at p. 528.) "'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.'" (Id. at pp. 528-529.)
In addition, the parent-child relationship must "'promote[] 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 re J.C., supra, 226 Cal.App.4th at pp. 528-529.) The factors the juvenile court considers in making this case-by-case assessment include "'[t]he age of the child, the portion of the child's life spent in the parent's custody, . . .'" the effects of the interaction between the parent and the child, and the child's particular needs. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)
The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) "A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child's need for a parent." (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
"It is not enough to show that the parent and child have a friendly and loving relationship." (In re J.C., supra, 226 Cal.App.4th at p. 529.) "'"Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . ."' [Citation.] [Although] '". . . friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent."'" (Ibid.) Thus, "'[n]o 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.] The relationship that gives rise to this exception to the statutory preference for adoption "characteristically aris[es] from day-to-day interaction, companionship and shared experiences."'" (In re G.B., supra, 227 Cal.App.4th at p. 1165.) Therefore, "'"it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement."'" (Id. at p. 1166.)
We apply a mixed standard of review to the juvenile court's determination whether the benefit exception applies. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) When, the court determines that a parent has not satisfied his or her burden of proof, we decide whether, as a matter of law, the evidence compels a finding favorable to the parent. (See In re I.W. (2009) 180 Cal.App.4th 1517, 1528 ["where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law"].) When the court determines that a parent has satisfied his or her burden, we apply the substantial evidence standard of review. (See In re K.P., at pp. 621-622.) Finally, if the court in the exercise of its discretion concludes there is a parent-child beneficial relationship but that the benefit to the child is not sufficiently compelling to outweigh the benefit of adoption, we review that conclusion for abuse of discretion. (Ibid.)
Here, according to the SSA's summary of the visitation reports, "the quality of the visitation appears to fluctuate between poor, neutral, and good." For instance: "During the visit on October 13, 2018, OCFC [(Orangewood Children and Family Visitation Center)] staff reported they observed the father laying on the sofa with his eyes closed, and left the visit for about an hour." In November 2018, on one occasion, "the parents cancelled the visit with no apparent rationale. The prospective adoptive parents reported they saw the father's car in front of the sober living home." On the following week, "the father visited the children. The mother did not attend." Later that month, the parents declined a visit "stating they needed to work. The prospective adoptive parents reported they observed father's car in front of the sober living home."
In December 2018, the OCFC staff reported: "The father spent little time interacting with the children, and typically watched a hand held electronic device." The staff also reported that: "When Logan would venture away from the visit, the parents would call the child back to their visit but would not engage the child when he returned." The staff later "informed the parents of a coaching program where they could assist the parents in interacting with the children. The parents declined, stating that their parental rights had already been terminated and they were visiting as a courtesy to make up visitation hours."
At the conclusion of the section 366.26 hearing, the juvenile court said, "I do want to discuss the parental bond exception. There is no doubt in my mind that the children enjoy their time with the parents. I would hope so. And I would hope that that relationship continues to exist, but there is always a benefit between children and parents interacting and what the court has to do is weigh to see whether the or not that relationship outweighs the benefit of permanency for the children."
The juvenile court concluded: "In this case, I will find that there has been consistent visitation, continued and consistent visitation at least in the last six months between parents. However, the relationship between parents and children is one of special friendship. It's like play dates. The relationship that Peyton and Logan have with mom and dad, though loving, though playful, though fun, does not sufficiently outweigh the benefits of having stability and a permanent home where the children do not wake up in the middle of the night afraid of where they're going to be next month, next year or five years from now."
The juvenile court ruled: "The court has thought hard about this case. It's been two weeks. We've tried the case over two weeks, even though it's only been a day here and a day there; the court has to balance the strength and quality of the relationship between the children and their biological parents. And when the court does that and balances it against the security and sense of belonging, the court finds that the permanent plan outweighs the friendship and the relationship and the parental bond."
Here, there is substantial evidence in the record to support the juvenile court's finding that the parents continued to visit the children after the termination of reunification services. But it is also apparent that the court then carefully weighed and considered the benefit of the continuing parent-child relationship, against the benefits to the children of permanency and adoption. That is exactly what juvenile courts are required to do under the juvenile dependency statutes. Our review of the record discloses that the court did not reach its decision in an arbitrary and/or capricious manner. In sum, we find that the juvenile court did not abuse its discretion in finding that the benefit exception to the termination of parental rights did not apply under these facts.
The parents argue that In re E.T. (2018) 31 Cal.App.5th 68, compels a different result. We disagree. In E.T., the juvenile dependency proceedings began when a pair of twin children were four months old. (Id. at pp. 71-74.) The mother had a history of mental health and substance abuse issues, and the juvenile court ultimately terminated reunification services. Although the court found that the now four-year-old twins were "'very tied'" to their biological mother, the court concluded that this bond did not mean "'they can't be happy'" with their prospective adoptive parents. (Id. at p. 77.) The Court of Appeal reversed, finding that the lower court did not apply the appropriate test under section 366.26, and that this was "the rare case" where the parental relationship exception applied and precluded adoption. (Id. at p. 70.)
Here, the facts in In re E.T., supra, 31 Cal.App.5th 68, are very dissimilar to the instant facts. Logan and Peyton were respectively 11 years old and 10 years old at the time of the section 366.26 hearing. As the juvenile court stated to mother's counsel at the hearing, the children in E.T. were considerably younger (four-year-old twins). Therefore; the court concluded that the E.T. case "doesn't apply at all. They're four years old. [T]he cases are not even similar."
The parents also cite other published opinions to support their argument that the juvenile court abused its discretion. (See, e.g., In re Caden C. (2019) 34 Cal.App.5th 87, 106; In re S.B. (2008) 164 Cal.App.4th 289, 299.) But we are mindful that a juvenile court's decisions on these difficult matters are "made on a case-by-case basis by taking into account the many variables which affect the parent/child bond." (In re Caden C., supra, 34 Cal.App.5th at p. 104.) In this case-specific endeavor, courts appropriately look at a wide variety of relevant factors such as: "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 . . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)
In this case, what factored heavily in the juvenile court's analysis was the particular needs of Logan and his sister Peyton to remain together: "I do want to touch upon the sibling bond. There is only one thing these two kids have had continuously and permanently throughout their entire life, whether they were with the biological parents or in Orangewood or with the current caregivers. They've had each other. And to put Logan in a different legal position and leaving him in limbo versus Peyton would harm the sibling bond and the sibling relationship in such ways that I think would be extremely damaging to both of them; not just to Logan, but to Peyton as well . . . ." (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1426-1427 [the relationship between siblings is an appropriate factor to consider in juvenile dependency proceedings].)
Finally, when analyzing for an abuse of discretion, we cannot substitute our judgment for that of the lower court. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 ["the reviewing court has no authority to substitute its decision for that of the trial court"].) Here, having found that the juvenile court considered appropriate factors and applied the correct test under section 366.26, we find no abuse of its discretion.
III
DISPOSITION
The orders of the juvenile court are affirmed.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.