Opinion
G054044
03-21-2017
In re C.L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. I.L., et al., Defendants and Appellants.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant I.L. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant C.A. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DP025319) OPINION Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant I.L. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant C.A. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
* * *
C.A. (Mother) and I.L. (Father) appeal from the judgment terminating parental rights to their now two-year-old son, C.L. Father contends the juvenile court erred in summarily denying his Welfare and Institutions Code section 388 modification petition. Both parents maintain the court should have applied the "parental benefit exception" to adoption. (§ 366.26, subd. (c)(1)(B)(i).) We find no errors and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
I
Early one morning in August 2014, Father and Mother were intoxicated and under the influence of marijuana when Mother punched Father and struck him with a knife. Then two-month-old C.L. was home with his parents during the assault. Neighbors called the police who later determined the parents were unable to care for C.L. due to their high level of intoxication. Mother was arrested for assault with a deadly weapon, corporal injury to a spouse, and child cruelty. Father was arrested for child cruelty. C.L. was taken into protective custody and transported to Orangewood Children's Home.
The Orange County Social Services Agency (SSA) filed a jurisdictional petition alleging C.L. was a child described by section 300, subdivision (b). C.L. was placed in the home of his maternal grandmother (Grandmother). Grandmother admitted to having previously lost custody of her own children due to her drug and domestic violence issues. Her background clearance check revealed numerous unsubstantiated, inconclusive, and unfounded child abuse referrals. Nevertheless, the social worker placed C.L. with Grandmother because she had successfully completed a diversion program, and the social worker believed Grandmother had "turned her life around." SSA gave Grandmother a placement exemption for a previous drug possession offense. On August 18, 2014, the juvenile court ordered C.L. detained and placed in the temporary care and custody of SSA pending the jurisdictional hearing.
In a report prepared for the jurisdictional hearing, the social worker interviewed both parents, who each reported they had difficult childhoods. Father stated his father (Paternal Grandfather) was often in prison and struggled with addictions to heroin and alcohol. Paternal Grandfather passed away when Father was 13 years old due to a heroin overdose. Father began smoking marijuana in the eighth grade, and was arrested for possession of cocaine at age 17. Father said he stopped using cocaine after that. Father admitted taking unprescribed Xanax on several occasions. Father had not graduated from high school and was unemployed.
Mother reported her childhood "'wasn't good'" due in large part to her parents divorcing when she was very young and that she was molested by one of Grandmother's ex-boyfriends. She said her father (Maternal Grandfather) had no history of drug or alcohol abuse, but Grandmother used methamphetamines. Mother lived most of her life with Maternal Grandfather due to Grandmother's drug use and domestic violence issues. However, Mother indicated Grandmother ended her violent relationships and had stopped using drugs when Mother was a teenager. Grandmother's current marriage had no domestic violence issues. and Mother had a good relationship with her step-father. She and Grandmother were now close. Mother smoked marijuana and began using methamphetamine in the eighth grade. She stopped using all substances at age 16 because her parents sent her to a military school. She admitted taking cocaine and unprescribed Xanax. Mother claimed she was sober during her pregnancy, but she resumed using marijuana on a daily basis after C.L.'s birth. Mother graduated from high school and was unemployed.
Mother and Father met in high school and they have been in a relationship for approximately one and a half years. For the past year they have lived together in their parent's homes and in their own apartment. Both parents expressed a commitment to having C.L. returned to their care. The social worker recommended the parents be offered reunification services. On September 16, 2014, the court sustained SSA's jurisdictional petition, declared C.L. a dependent of the court, removed him from parental custody, and ordered reunification services. A. The Six-Month Review Hearing
By the time of the scheduled six-month review in March 2015, C.L. appeared to be happy and adjusting well to his placement. He was affectionate with Grandmother and appeared comfortable in her care. Mother and Father were living separately by early 2015, but saw each other and communicated frequently. Mother admitted that although alcohol consumption was prohibited under her case plan, she had consumed champagne during the past month. Father also admitted he continued to use alcohol. He was not attending weekly Alcoholics Anonymous (AA) meetings and had not yet found a sponsor. Nevertheless, Father claimed he was working the AA 12-step program. The social worker reported Father completed his parent education and continued counseling. It was reported Father had shown insight in his personal empowerment program and had acknowledged his role in the domestic violence that precipitated the case. The social worker indicated Mother had also made progress in her individual therapy.
Mother and Father consistently visited C.L. During the eight hours of authorized supervised weekly visitation they interacted with and appropriately cared for C.L. The social worker reported the parents would often feed, change, and bathe their son during visits, and there were no concerns. C.L. positively responded to his parents. At the six-month review hearing in March 2015, the court extended the parents' reunification services. B. The 12-month Review Hearing
In an August 2015 status report, the social worker recommended the court terminate reunification services and set a permanency planning hearing pursuant to section 366.26. The social worker reported both parents failed to drug test on a regular basis and both admitted to marijuana use. During an April 2015 visit, the parents appeared to be under the influence because they were giggling and laughing inappropriately during the visit. In June and July 2015, Mother tested positive for marijuana and she provided a medical marijuana certificate effective from May 26, 2015 through May 25, 2016. The parents did not test positive for alcohol during this reporting period. The social worker reported Mother and Father were still financially dependent on their parents, who also provided them housing.
The parents visited C.L. twice a week for a total of eight hours. One visit took place at the Orange County Child Abuse Prevention Center (OCCAPC) and the second visit usually took place at Grandmother's home. OCCAPC notes indicated the visits were appropriate and Mother "was more engaged with the child" than Father, who "mostly sat and watched." The parents visited C.L. together until June 2015, when they decided to separate. They then began visiting C.L. individually.
The 12-month review hearing was continued to allow Mother's new attorney time to evaluate the case. Before the hearing, on September 3, 2015, Father was convicted for the sale/transportation of a controlled substance, and he was sentenced to 90 days in jail. The hearing was continued for another month.
In an addendum report, dated October 27, 2015, the social worker stated Mother attended all of her therapy sessions and her drug test results were negative. However, she missed a six-hour visit and failed to make arrangements to make up the visit. She also missed C.L.'s appointment for a speech and hearing assessment. The social worker again recommended the court terminate reunification services and set a permanency planning hearing. On October 28, 2015, the court granted de facto parent status to Grandmother.
After more continuances, the 12-month hearing was ultimately heard on December 9, 2015. At the hearing, the court terminated reunification services and set a permanency planning hearing. C. The Section 388 Petitions
On June 16, 2016, Mother filed a section 388 petition requesting the court return C.L. to her custody, or in the alternative, authorize a 60-day temporary release. A few days later, Father filed a section 388 petition making the same requests as Mother.
In her petition, Mother asserted she completed a 10-week domestic violence class, a personal empowerment program, and a drug and alcohol program. Mother opined she learned a great deal during the dependency proceedings and she was complying with the required programs. She was "able to provide for [C.L.] and ensure him a safe, healthy[,] and loving home to grow up in." She was starting a new job and her last place of employment lasted approximately one year. She had attended cosmetology school until it closed, and she had plans to continue her education with another school.
Father's petition also alleged there had been a change of circumstances since termination of reunification services. He completed a domestic violence and substance abuse program, he continued to comply with the requirements of his plan, he obtained his GED, and he was gainfully employed in a 30-hour per week job. Father claimed the modification of the custody order would be in C.L.'s best interest for the following reasons: (1) Father could now support his son; (2) he would set a good example for him; and (3) it was important C.L. knew Father "never gave up on him and was committed" to his care.
In July 2016 the court considered argument regarding whether the 388 petitions merited a full evidentiary hearing. Both parents argued their petitions established the necessary prima facie showing. Mother's counsel informed the court Mother had received a promotion even though she had only been in her present employment for a little over a month. SSA argued reunification services were terminated only six months ago and in that time both parents had failed to show changed circumstances. SSA's counsel noted the bulk of the services Father claimed to have done, save his GED and his compliance with terms of probation, predated the termination of services. SSA's counsel noted Father had only very recently signed up for services through the health care agency. Moreover, SSA's counsel argued the petitions did not show how C.L.'s best interest would be served by changing custody. Minor's and Grandmother's counsels joined in SSA's arguments. Minor's counsel argued it would not be in C.L.'s best interests to remove him from his current placement with Grandmother. C.L., now two years old, had been in Grandmother's home since he was two months old, and he was thriving in this environment.
The court denied the section 388 petitions. It commended both parents on the progress they had made, but noted much of their accomplishments had occurred prior to services being terminated. It found circumstances had not sufficiently changed since services were terminated to warrant a hearing. Furthermore, the court concluded there was insufficient evidence showing return of the child, or a 60-day temporary release, was in his best interests. D. The Permanency Planning Hearing
In the report prepared for this hearing, the social worker stated the parents continued to have weekly visits supervised by the Maternal Grandfather and paternal grandmother. There were no major concerns with the child before or after the visits. The visits remained supervised as it was unknown whether the parents were maintaining sobriety.
The social worker described C.L. as an adorable child, who was energetic, friendly, and enjoyed playing with toy cars. C.L. continued to reside with Grandmother and her husband (Mother's step-father), and they were willing and able to provide C.L. with a permanent home and adopt him. The social worker opined C.L. was generally adoptable because he possessed many of the attributes and characteristics adoptive families seek. C.L. was considered specifically adoptable as his current caretakers desired to adopt him. The social worker observed C.L. as having a secure attachment to his caregivers. He was happy, playful, and appeared content in their care. SSA recommended adoption as the best permanent plan for C.L.
At the hearing, Mother testified she had a really strong bond with C.L. She was spending more time with him. C.L. was more attached to her and he did not want to leave after the visits. When Mother would say "goodbye," he would say, "'No, Mama. No, don't go,'" and he would start to cry. C.L.'s grandfather who drove him to the visits would roll down the back window in his car and C.L. would reach for Mother as they drove away. Mother could hear C.L. crying as they drove away. He had been crying after the visits for the past few months. He would say, "'I love you.'" When C.L. would first arrive for the visits, he would start saying "'Mama'" in the car when he saw her. Sometimes Mother and C.L. would take a nap together. They played together. Mother also fed, bathed, and disciplined C.L. C.L. would hug and kiss Mother and tell her he loved her constantly during the visits. Mother attended most of C.L.'s medical appointments. She comforted him when he had ear infections. Mother testified she believed Grandmother would allow her to continue visits. Her father had been supervising the visits and she believed he could continue to do that.
The Maternal Grandfather testified he was supervising Mother's visits by the time of the permanency planning hearings and helped with transportation. He recalled the visits were typically "really good." He described C.L. as an "easy boy" who had fun with him and Mother during the visits. He believed Mother and C.L. were "very close, very loving." Maternal Grandfather testified he believed that it would be detrimental to C.L. if Mother's rights were terminated because it was "obvious" C.L. recognized Mother as his mom. Maternal Grandfather also stated, "[T]here's not much of a fuss" returning the child to Grandmother's care, and "no clinging one way or the other."
Grandmother testified C.L. loved both Mother and Maternal Grandfather. She knew C.L. was excited about visits because he reacted as such when Maternal Grandfather picked him up. C.L. referred to Grandmother as "Mama" and to Mother as "Mommy." Grandmother believed C.L. would be sad if his visits with the parents discontinued and that "it's in his best interests to have his whole family in his life." Grandmother was not open to legal guardianship for "a lot of reasons," including Mother's "up and down" drug issues. She would not consider legal guardianship since the parents' relationship had been "toxic" from the beginning and she believed they would be battling each other so much it would affect C.L.
Grandmother wanted continued visitation for the parents, but with modified hours. She testified C.L. had "problems with change" and he should not be confused by his family roles. But Grandmother did not believe C.L. would suffer if Mother and Father were not his legal parents because they would continue to see him. Grandmother wanted to adopt C.L. to free him of the dependency proceedings. She believed C.L. should continue to visit the parents and that it would be detrimental for them not to be part of C.L.'s life.
Grandmother testified she had seen some periods of maturation from Mother, but believed Mother, nonetheless, had not changed. Although C.L. did not mention Father to Grandmother, she observed visits where the two had positive interactions. Grandmother did not feel it was fair for C.L. to wait for the parents to stabilize their lives. Grandmother testified there was "no stability" with the parents' relationship, C.L. was not always the focus of his parents' lives, and he was "having certain issues with all this inconsistency." But she looked to a future with the parents being more stable and spending more time with C.L., but with C.L. still living with her.
C.L.'s paternal grandmother was responsible for supervising her son's visits with C.L. for the entire case. During visits, Father played with C.L., fed him, changed him, and bathed him. Father worked on toilet training with C.L., and took the lead in caring for him during visits. Paternal grandmother believed Father and son shared affection through typical activities. Father never missed a visit with C.L. during the time his visits were at the paternal grandmother's house. C.L. had "no problems" when taken home at the end of the visits, as he was "pretty good about everything" and "adapted well to everything." Paternal grandmother felt C.L. would be disadvantaged if visits with Father ceased.
C.L.'s paternal great-grandmother testified she was present at all of C.L.'s Sunday visits with Father, and observed C.L. and Father having playful interactions. Paternal great-grandmother saw a bond between Father and C.L. and she believed C.L. was happy to be with Father during visits.
Father was the final witness at the hearing. Father testified he, Mother, and C.L. lived together in an apartment until C.L. was detained at two months old. Father recalled that for the first year of C.L.'s life, he visited his son six hours one day a week, and two hours at his daycare on another day. For the last year, he visited with C.L. for eight hours on Sundays. When C.L. first sees Father at visits, he runs up to Father with a big smile and looks happy to see Father. Father and C.L. play together. Their activities included playing catch, kicking a soccer ball, jumping on the trampoline, walking to the park, and going to the beach. Father comforted C.L. when he became upset, but C.L. did not get upset often. Father helped C.L. to use the toilet, take baths, eat food, and change his clothes. Towards the end of visits, C.L. expressed not wanting to go home, and he got sad and fussy. Father was "pretty sure [C.L.] would be upset, confused, hurt, sad, all those things" if not allowed to see Father regularly.
At the conclusion of the hearing, the court commented the Legislature had set forth a statutory presumption in favor of adoption for a child of C.L.'s age because it offered the child permanence. The court stated it recognized adoption was not the only option and indicated the benefit a child has with a parent is a circumstance that could justify a different permanent plan. The court noted In re Zachary G. (1999) 77 Cal.App.4th 799, In re Beatrice M. (1994) 29 Cal.App.4th 1411, and In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), were cases that sought to balance the child's interest in permanency against the relationship a child has with a parent. The court said it was only upon a finding the benefits of maintaining the parental relationship outweighed the benefits of adoption that the court could order legal guardianship rather than adoption. The court explained the cases drew a distinction between a "'friendly visitor'" and a more profound relationship. Applying these principles, the court acknowledged C.L. enjoyed a happy relationship with both Mother and Father, however, the nature of these relationships did not warrant a finding that guardianship rather than adoption was in C.L.'s best interest. The court stated C.L. was two years old and there was clear and convincing evidence he was adoptable. It concluded no exceptions to adoption applied, and that termination of parental rights and placement for adoption were in C.L.'s best interests.
Father filed timely notice of appeal as to the denial of his section 388 petition and the termination of his parental rights. Mother filed a timely notice of appeal as to the termination of her parental rights.
II
A. Father's Section 388 Petition
A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) "Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] '"[C]hildhood does not wait for the parent to become adequate."' [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
When a parent brings a section 388 petition after a permanency placement hearing has been set, the best interests of the child are of paramount importance. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.) [parents' interest "in the care, custody and companionship of the child" no longer the focus].) We review a court's order denying a section 388 petition without a hearing for an abuse of discretion. (Id. at pp. 318-319.)
While Father's efforts in counseling and attention towards parenting C.L. are commendable, such evidence does not establish an order returning custody or a 60-day temporary release would be in C.L.'s best interest. Father's section 388 petition was filed just nine months after he was convicted of a drug-related offense, for which he was sentenced to serve 90 days in jail. Although he was doing well on felony probation, violation of a probation term could result in a return to custody.
We recognize a juvenile court must liberally construe allegations in a section 388 petition. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; Cal. Rules of Court, rule 5.570(a).) But Father was required to demonstrate a prima facie case of changed circumstances, not changing circumstances, on both elements. (Casey D., supra, 70 Cal.App.4th at p. 47.) Father did not satisfy that burden, and thus he was not entitled to an evidentiary hearing. (In re Jackson W. (2010) 184 Cal.App.4th 247, 260.) We conclude the court did not abuse its discretion by denying Father's section 388 petition without an evidentiary hearing. B. The Permanency Planning Hearing
"Section 366.26 establishes a detailed procedure for terminating parental rights. Subdivision (c)(1) states that a prior order . . . terminating reunification services 'shall constitute a sufficient basis for termination of parental rights.' If the court determines under a 'clear and convincing standard' that it is 'likely the child will be adopted,' the court 'shall terminate parental rights and order the child placed for adoption.' (§ 366.26, subd. (c)(1).) The goal is to provide 'stable, permanent homes' for children who are dependents of the juvenile court, and the first choice to achieve that goal is adoption. [Citations.]" (In re Logan B. (2016) 3 Cal.App.5th 1000, 1009.)
If there is clear and convincing evidence that a dependent child is likely to be adopted and a previous determination that reunification services should be terminated, there is a presumption favoring adoption as the permanent plan. (§ 366.26; In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Guardianship or long-term foster care may be selected only if exceptional circumstances exist, as defined in section 366.26, subdivision (c)(1)(B)(i)-(vi). (See Autumn H., supra, 27 Cal.App.4th at pp. 573-574).
An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was consistent and regular; and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.)
Mother argues because the determination of whether a beneficial relationship exists is a discretionary decision, the abuse of discretion standard of review applies. Father asserts the court's findings are reviewed under the substantial evidence test. We conclude both standards of review apply. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).)
Case law has been divided as to the correct standard for appellate review of an order determining the applicability of the parental beneficial relationship exception. Most published decisions have reviewed such orders for substantial evidence. (See, e.g., In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; Autumn H., supra, 27 Cal.App.4th at p. 576.) Others have applied an abuse of discretion standard. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
The Sixth Appellate District has cogently expressed the view that the review of a beneficial relationship exception incorporates both the substantial evidence and the abuse of discretion standards of review. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) The Bailey J. court observed the juvenile court's decision whether an exception applies involves two component determinations. "Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination." (Id. at p. 1314.) The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes "'a compelling reason for determining that termination would be detrimental [to the child].' [Citation.]" (Id. at p. 1315.) This "'quintessentially' discretionary decision, which calls for the juvenile court to determine 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]'" is appropriately reviewed under the deferential abuse of discretion standard. (Ibid.; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [finding Bailey J. approach persuasive].) We are likewise persuaded to apply the Bailey J. approach.
In Autumn H., supra, 27 Cal.App.4th at page 575, the court articulated the test for determining whether a child would benefit from continuing a relationship with the natural parent. To succeed under this test, the parent must establish "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." (Id. at p. 575.) In evaluating this issue, the court must "balance[] 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." (Ibid.) "The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond[, including 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 . . . ." (Id. at pp. 575-576; see also In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
Mother argues she satisfied the first prong of the beneficial relationship exception because she maintained regular visitation, missing only three out of 100 visits. She points out the juvenile court acknowledged C.L. had a routine and regular spent time with Mother. We agree the first prong was met.
As for the second prong, Mother asserts the court "refused to express any opinion on the relationship that [C.L.] had with his parents and instead skipped to the conclusion that the relationship would not warrant a finding that it would be appropriate to select the permanent plan of guardianship as opposed to the termination of parental rights and placement of the child for adoption." But Mother takes the court's comment out of context. The court acknowledged there was a happy relationship between the parents and C.L. but nevertheless it concluded neither parent had carried their burden of establishing an exception to adoption was warranted. The court then commented it was not expressing an opinion "about the ongoing nature of the relationship." Read in context, the court simply recognized that given the closeness of the family members it could not predict what C.L.'s relationships with his parents would be in the future.
Mother points to her testimony as proof she had a really strong bond with C.L. She saw his personality develop, and she was spending more time with him. She believed C.L. became more attached to her over time and he did not want to leave after the visits. Mother refers to evidence C.L. would cry and reach for Mother as he was driven away from visits. She cites to her involvement and interaction with C.L. as evidence of the strong relationship between her and her son. Mother highlights Maternal Grandfather's testimony that he believed it would be detrimental to C.L. if Mother's parental rights were terminated. Mother argues the evidence demonstrated her relationship with C.L. was more than "'a friendly visitor.'"
Mother's evidence may have established she was more than a "friendly visitor," but the evidence was insufficient to establish the loss of this relationship would cause substantial harm to C.L. "To meet the burden of proof for the section 366.26, subdivision (c)(1)(A) exception, the parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 (L.Y.L.) Although Mother and C.L. enjoyed their visits and there may have been some merit in a continued parent/child relationship, there was no evidence that the benefit of Mother's participation in C.L.'s life was of a magnitude sufficient to overcome the statutory preference for adoption. Mother's argument on appeal does not paint a complete picture. We cannot overlook the fact that at an April 2015 visit both parents appeared to be under the influence. Nor can we ignore the evidence showing Mother tested positive in June and July 2015 for marijuana.
Grandmother's assessment of the ability of the Father and Mother to parent C.L. is also telling. She remained concerned about Mother's "up and down" drug issues and was convinced the volatility of parents' relationship would negatively impact C.L. In light of all the above, we conclude the court did not abuse its discretion by ruling the exception to terminating parental rights did not apply as to Mother.
Father also alleges the court erred in finding the beneficial parent relationship exception did not apply. He asserts that at the beginning of the case, Father and Mother visited consistently with C.L. for eight hours per week. He referred to the paternal grandmother's testimony that Father never missed a visit with C.L. during the time his visits were at her house. Paternal grandmother reported C.L. appeared to enjoy visiting his parents. She confirmed both parents fed C.L. and changed his diapers. They both purchased diapers, formula, and food for their son. Father testified he attempted to play and positively interacted with C.L. In response, C.L. would smile at Father. Father asserted this evidence established regular visitation and contact with C.L. during the entire dependency. We agree Father satisfied the first prong of the beneficial relationship exception.
Father acknowledges the benefit from continuing the parent/child relationship as not simply some "incidental benefit," but a relationship that "promotes the well-being of the child to such a degree as to outweigh well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Citing Autumn H., Father explains the court must balance the nature of the parent-child relationship in a tenuous placement against the security of adoption. Father cites In re Brandon C. (1999) 71 Cal.App.4th 1530, for the proposition the parental relationship must be evaluated in the context of the situation. And that the court's focus must be on the nature of the parent-child bond. (Id. at p. 1538.) Father argues it is clear he maintained a quality, parent-child bond.
Father argues his involvement and interaction with C.L. during visits was evidence of their strong relationship. Father describes playing with C.L. and walking to the park or beach with him. He helps C.L. use the toilet, take a bath, eat meals, and change clothes. Father maintains this evidence proved he took care of all C.L.'s needs just as a parent would. In Father's view, his relationship with C.L. "was significant enough that severing it would deprive [C.L.] of a substantial, positive emotional attachment."
As described in more detail above, a parent has a high burden in proving the section 366.26, subdivision (c)(1)(B)(i), exception applies. (L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.) By the time of the section 366.26 hearing, C.L. had spent almost two years out of his parents' custody. During this time he developed a happy and secure attachment to Grandmother and her husband. It cannot be overlooked that C.L.'s contact with his parents during most of life was during supervised visitation. Although C.L. enjoyed a relationship with Father, it cannot be said the value of continuing this relationship outweighed the well-being C.L. would gain in a permanent home with adoptive parents.
III
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. THOMPSON, J.