Opinion
F076628
08-22-2018
In re ROBERT G. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. ROBERTO G. et al., Defendants and Appellants.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Roberto G. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant G.C. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 517495, 517496)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Roberto G. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant G.C. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
On September 29, 2017, the juvenile court terminated the parental rights of Roberto G. (father) and G.C. (mother) to their two sons, Robert G. (11 years old) and M.G. (22 months old) at the conclusion of a hearing pursuant to Welfare and Institutions Code section 366.26. On appeal, father, with mother joining, contends the juvenile court erred in denying his request for a bonding study and in summarily denying his petition pursuant to section 388 to either reinstate reunification services or to grant him custody with a family maintenance plan. Both mother and father contend the juvenile court erred in failing to apply the beneficial parent-child relationship exception in determining whether to terminate parental rights. We find no error and affirm the orders of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
The factual and procedural history is taken primarily from the September 25, 2017, unpublished opinion of this court in the prior appellate proceedings. (G.C. v. Superior Court (Sept. 25, 2017, F075754 and F075755) [nonpub. opn.].) --------
Detention
In December 2015, the Stanislaus County Community Services Agency (agency) was contacted after M.G., born prematurely the month before, was admitted to the neonatal intensive care unit (NICU). Mother disclosed that she was developmentally delayed and arguing with father. She denied father abused her, but said he was controlling and called her names. Mother also disclosed then nine-year-old Robert was also developmentally delayed. Mother agreed to participate in family maintenance services.
In February 2016, while mother was visiting M.G. in the NICU, staff noticed she had a black eye. Mother said father punched her while they were in the car and Robert had witnessed it. She also said father threw her to the ground two days before and kicked her in the shins.
Mother and father had a documented family history dating back to 2007 between Stanislaus and Los Angeles counties. When Los Angeles County attempted to offer the family services for domestic violence, mother and father violated their safety plan and moved to Stanislaus County. Due to this history, the agency placed a protective hold on M.G. and took Robert into protective custody.
In March of 2016, the juvenile court exercised its dependency over M.G. and Robert, removed them from mother and father's custody, and ordered mother and father to complete a parenting program and participate in individual counseling. Father was also required to complete a 52-week domestic violence program and participate in substance abuse treatment. Six-Month Review
By the time of the six-month review, M.G. was placed in the same caregiver home as Robert. Mother and father were both participating in reunification services; father was participating in domestic violence counseling and active in recovery. But although mother stated she was trying to establish her own home, the agency was concerned that mother and father were still romantically involved.
In October 2016, the juvenile court continued reunification services for mother and father, including a revised case plan requiring them to participate in coparenting counseling if approved by their therapists. 12-Month Review
By March 2017, mother was in a family mentor home and father in a sober living facility. However, they disclosed to the agency that they had remained romantically involved since the inception of the case. As such, mother's therapist declined to approve her for couples/coparenting counseling sessions. The agency also noted that, at visits, mother and father paid more attention to M.G. than they did to Robert, causing him to feel neglected. After discussing Robert's concerns with mother and father and, after seeing improvement, visits at father's sober living facility were scheduled.
The agency at first recommended the juvenile court continue reunification services and grant the agency discretion to arrange overnight visitation. Minors' counsel, however, objected and the court set a contested review hearing.
In an addendum report, the agency changed its position and recommended termination of reunification services, expressing concerns about father's controlling behavior and inability to engage in a healthy, nonviolent relationship with mother. Father's therapist opined that father had not engaged in his recovery long enough to sustain a healthy relationship with mother. Mother stated that she was only with father because she was scared and afraid he would get custody of the children.
Mother and father's therapists both expressed concern about mother and father's ability to engage both children at the same time. They interacted more with M.G., and Robert did not want to visit them out of fear for his and his brother's safety. The agency did not think mother and father could meet the children's special needs and developmental delays.
Neither parent had completed reunification services. Father completed only half of the 52 domestic violence sessions and mother had three individual parenting sessions to complete. Their therapists had not cleared either for couples/coparenting counseling, which the agency believed was imperative to their understanding of the violence in their relationship. The agency did not believe the parents were capable of successfully reunifying with the children before August 2017, which marked the 18-month limit on reunification services.
At the May 2017 contested 12-month review hearing, the facilitator for the batterer's intervention program testified father attended 34 of the required 52 sessions. Her original assessment of father was "satisfactory" in the area of taking responsibility for his abusive behavior, but she revised her assessment to "needs improvement," as father failed to disclose running over mother's foot with a car in 2007; being convicted of spousal abuse in 2009; being convicted of child cruelty of Robert in 2014; and pushing and kicking mother in 2016.
At the hearing, mother denied father was physically, verbally and/or emotionally abusive to her, but also testified father "was abusive to [her] for years." She wished to remain in a relationship with father and to reunify with her children.
Father testified he no longer struggled with control issues in his relationship with mother. He wished to reunify with the children and mother as a family unit, but was willing to cut ties with mother in order to gain custody of the children. He admitted being violent toward mother during their 12-year relationship and having previously completed a 52-week domestic violence class in 2010. He acknowledged needing to do additional work on control issues, but also believed he and mother could safely parent the children. Father believed Robert's aversion to visits did not have to do with him, but to another client at the sober living facility.
In response to questions from the juvenile court, father stated methamphetamine was his drug of choice, but he had been clean and sober since February 5, 2016. Father testified he was clean from 2002 until April 2015, when he relapsed. While he was using, he used corporal punishment on Robert and was physically abusive to mother.
Father's substance abuse counselor and therapist testified that father's progress had improved since January 2017. The therapist wanted father to complete co-dependency counseling, which would require more than five or six sessions, in light of the recent information of father's risk assessment by the facilitator at the batterer's intervention program. After discussions with the social worker, the substance abuse counselor would not recommend coparenting/couple's counseling.
The social worker testified it would be detrimental to return the children to parental custody because Robert reported that mother and father struck him and he was fearful for M.G. On May 1, 2017, Robert reported that father hit him on the butt, leg and back. When asked if he wanted to live with mother and father, Robert said "No, because they hit me," and he did not feel safe with him. In April 2017, Robert told a mandated reporter that father had hit him in the face with an open hand. The social worker recommended termination of parental rights, stating he did not think mother and father would be able to reunify with the children before the 18-month review hearing in August 2017.
The juvenile court concluded mother and father's decision to remain a couple prevented them from adequately addressing their roles as abuser and victim. The court also believed mother would not protect herself from father and it did not find father's testimony credible. The court found it would be detrimental to return the children to parental custody, that reasonable reunification services were provided, and there was not a substantial probability that the children could be returned by the time of the 18-month review hearing. The court terminated reunification services on June 1, 2017, and set a section 366.26 hearing for September 29, 2017. Writ Petitions
Writ petitions were filed on behalf of mother and father in this court on July 21, 2017. We denied these petitions by the opinion filed in these matters September 25, 2017.
CURRENT PROCEEDINGS ON APPEAL
Report Prepared for the 366 .26 Hearing
The report prepared by the agency on September 15, 2017, in anticipation of the section 366.26 selection and implementation hearing, stated Robert and M.G. had been placed together in a concurrent foster home since February 2016, with caregivers who were not interested in legal guardianship but were interested in adoption. Robert had a specific learning disability and a speech or language impairment and attended a special day class for severely handicapped students. He had been diagnosed with ADHD and PTSD, and was receiving mental health services. Robert was happy in his current placement, but due to his cognitive delays and speech impediment, was unable to provide a statement regarding adoption.
M.G. was receiving "Early Start" services at a regional center and was now able to walk and somewhat feed himself using his fingers. He was too young to provide a statement concerning adoption.
Both children were thriving in their prospective adoptive placement. The social worker observed a significant bond between the minors and the caregivers. The minors' considerable medical, educational, developmental, and mental health needs were being tended to and the caregivers cared deeply for the minors.
Father's visits with the minors were consistent, but father had trouble handling the needs of both children at once. Mother also visited consistently, but also often struggled to manage both children at once during visits. Due to this difficulty, one of the two weekly visits between mother and the children was moved back to the agency in order to assess her interaction with the children. Section 388 Petition and Section 366 .26 Hearing
At the September 29, 2017, scheduled section 366.26 hearing, father requested a continuance in order to prepare and file a section 388 petition requesting either reunification services be reopened or returning the minors to father under a plan of family maintenance. Father's counsel explained that he drafted a section 388 petition the day before and intended to "give notice, et cetera," but found his computer, printer and phone "gone" from his office and he could not complete the petition.
With agreement by the parties, father's counsel made the following oral offer of proof to support father's request for a section 388 hearing, to which he would testify: (1) that he graduated from the 52-week batterer's intervention program September 6, 2017, on his own time and at his own expense; (2) that after reunification services were terminated, he voluntarily completed all of the sessions for codependency counseling; and (3) that he had begun additional counseling on February 22, 2017, completing coparenting counseling and was participating in additional individual counseling. Father's counsel stated father had done all that was required of him and he would be completing all programs within the next reporting period. Father was employed, he was still clean and sober, he had a home, and he was ready, willing and able to care for the minors.
Father's counsel stated further that, if father were to testify that day, he would testify that any negative characterizations of the visits with his children were untrue and that he and the children were very, very close and he wanted them returned to his care and custody. Father's counsel stated he would bring in and call witnesses who had observed father's visits and would substantiate his claims.
The agency's position was that continuing reunification services or family maintenance services would not be in the best interests of the children, "given the entire history of this case."
Counsel for the children agreed with the agency and also asked that the juvenile court deny the section 388 petition, noting that "[c]ompleting the program[] is one thing, actually applying what you have learned in the program is another." Counsel also noted that mother and father were still together and mother "hasn't done anything" and had not completed services. The Court Appointed Child Advocate (CASA) was also not in favor of returning the children to father.
In response, father's counsel argued father made a successful and satisfactory recovery, completed an extensive case plan, including extensive parenting and fathering classes, and had attained long-term sobriety. Father was requesting a contested section 388 and section 366.26 hearing, for an opportunity to address the conflicting section 366.26 report. He was also requesting a bonding study, which the juvenile court noted should have been asked for at the last hearing when reunification services were terminated.
Mother's counsel submitted on the matter, but objected to the statement that mother was still in a relationship with father, stating, "That is not what my client has told me for a matter of quite a while now. So without additional evidence as to the truth of that assertion, I would object to that." Father's counsel joined in the objection.
Having received father's oral offer of proof in lieu of a written section 388 petition, the juvenile court denied father a contested section 388 hearing and would not hear father's request for a bonding study. In denying the request for the section 388 hearing, the juvenile court noted father was not able to show a "complete transformation," and that there was a "big issue" as to honesty - noting mother and father's continued relationship. The juvenile court noted Robert's "trepidation" about visiting father, although there had been improvement. The juvenile court also noted M.G. had spent "pretty much" his entire life, over a year and a half, in the care of the caregivers.
The juvenile court then commenced a contested section 366.26 hearing, receiving the agency's "most recent visitation log notes" into evidence, which included a visit that occurred between father and the children after the section 366.26 report was filed.
Inter alia, the visitation log stated the following:
On April 28, 2017, the social worker had a conversation with a mandatory reporting party who taught Robert in a class for children with learning disabilities. She reported that Robert had told her, in March of 2017, that father was mean, that he yelled at him, and that he had hit him with an open hand, although she saw no marks on Robert. The mandatory reporting party stated she was reluctant to call CPS, as father did not like her and said he would pull Robert out of the class when he gets custody of him.
On May 1, 2017, Robert told the social worker that he had been hit by father the day before and showed her small marks on his body. The caregiver believed Robert had actually gotten one of the marks playing outside; the other two he had had since birth.
And, at a visit with father on September 13, 2017, father had M.G. on his lap, facing out, with one of his arms pinned under father's arm. Father held the child's other arm with his hand and was correcting M.G. for an "unknown event," stating "I don't know what you guys get away with over there." Father then held M.G. and spun him around the room. Robert tried grabbing M.G., but father grabbed Robert "abruptly" by the arm to get him to stop and scolded him. Robert began to cry and father appeared frustrated. After the visit, the social worker received a call from the caregiver who said Robert told her his father was mean and Robert did not like him. On the drive home, Robert hid while passing a bus stop, stating he did not want father to see him as he was scared of him.
At the hearing, mother testified that she continued to faithfully visit the children and described the visits as full of "[h]appiness, love, hugging, kissing." Robert called her "mother" and M.G. called her "momma." At visits, mother said Robert "gets" her cell phone to watch "Tommy train," and she feeds M.G. She also said she plays games with both of them, does puzzles, reads and colors. At the end of visits, mother described Robert as sad and acting as if he wants to go home with her, grabbing her hand and saying, "Don't go. Don't go, Mommy. I miss you."
Mother did not think the children should be adopted because she had a house, went to school, had a job and got counseling. She also added that she was not a drug addict or alcoholic and wanted a "second chance to take care of [her] kids."
Father testified that he never missed a visit. In describing the details of the September 13, 2017 visit, father explained he was playing with M.G. when he spun him around and he grabbed Robert to keep him from pulling M.G. and possibly dropping him. Father denied yelling at Robert and testified that was the only time Robert cried at a visit.
Father testified that visits began with hugs and kisses and with father feeding the children. The children interacted with father and seemed happy. Both children called him dad, they read together, played with toys, and visits ended with smiles, hugs, and kisses. Father loved both children and wanted to protect them. He objected to termination of parental rights.
When asked, father stated that he agreed, to a certain extent, that the children, particularly Robert, had been traumatized by domestic violence in the home. He agreed that Robert had seen "a lot of things that he shouldn't have seen" when he was in father's care.
The agency made an offer of proof that, if the foster caregiver/prospective mother (who was also the minors' aunt) would testify, she would testify that she sometimes had to coax Robert to attend visits, and that Robert never asked to call his mother or father or asked for additional visits.
The agency argued father and mother's parental rights should be terminated and that the children were clearly adoptable and likely to be adopted. M.G. had been with the relative caregiver his entire life; for Robert it had been a significant period of positive growth. The agency addressed the parents' anticipated argument that there was a strong parent-child relationship. While mother and father visited regularly, the children were very stable where they were, had made "tremendous leaps," and adoption was the best plan.
The children's counsel also requested adoption for the children and stated no evidence had been presented that it would detrimental to the children to sever parental rights.
Mother's counsel argued that the beneficial parent/child relationship exception should apply, noting her consistent visitation. Counsel argued mother interacted with the children in a positive manner "for the most part." Counsel acknowledged mother could not take care of them on a day-to-day basis, but she tried her best during visitation, and wanted an opportunity to parent them. Counsel asked that the juvenile court view her relationship with the children in her own right and not as if she was still in a relationship with father.
Father argued the beneficial parent-child relationship exception to the statutory preference to termination of parental right should apply, noting Robert's worsening condition coincided with the decrease in visitation after reunification services were terminated. Father did not think the September 13, 2017, visit was being properly represented as he claimed he was playing with M.G. when Robert joined in and father had to make a correction to protect M.G.
The juvenile court found the placement of the children necessary and appropriate and that the agency complied with the case plan in making reasonable efforts. The juvenile court found progress by both mother and father "limited." It also found by clear and convincing evidence that the children were adoptable and likely to be adopted. The juvenile court declined to apply the beneficial parent-child relationship exception, stating that the parents had not proved that termination of parental rights would be detrimental to the children. The juvenile court specifically noted Robert's special needs required a great deal of affection, special care and nurturing. The juvenile court noted mother's difficulty in being able to handle and redirect the children. And while father had completed a number of components of his case plan, he still was "partially" in denial as to the impact of domestic violence on the family, particularly towards Robert, who continued to experience "a great deal of trauma." The juvenile court terminated parental rights in favor of the permanent plan of adoption.
DISCUSSION
I. SECTION 388 PETITION
Father, with mother, contends the juvenile court abused its discretion in failing to conduct a hearing on father's section 388 petition to reinstate reunification services or to give him custody of the children with family maintenance care because he made a prima facie showing entitling him to a hearing. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist, and changing the order will serve the child's best interests. (§ 388; In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Section 388 petitions are liberally construed in favor of granting a hearing to consider the parent's request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Even so, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
In assessing the petition, the court may consider the entire factual and procedural history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Father argues section 388 petitioners are entitled to de novo review on appeal if a juvenile court denies the petition without conducting a hearing for a petitioner's failure to make a prima facie case. We disagree. Where the juvenile court has denied a section 388 petition without a hearing, we also review the juvenile court's ruling for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460, 462-464; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been terminated. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interests in reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "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." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The "escape mechanism" provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Father's offer of proof was that he was clean and sober, working, and had completed his codependency and domestic violence counseling. He had also engaged in coparenting counseling with mother and had a home. Father's offer of proof as to the best interests of the children was that "he would testify that the characterizations of the negative visits are simply untrue," and he could bring in witnesses from his treatment facility to say the alleged actions during the visits did not happen.
Counsel for the minors noted that nothing in the offer of proof indicated father was not still in a relationship with mother, who had not done "anything" to complete services.
The juvenile court found that father did not make a prima facie showing of either prong of the test - he did not find father's circumstances were changed or that he demonstrated how continuing reunification services would be in the children's best interests. As to the first prong, the juvenile court did not see that father made a "complete transformation," noting his lack of honesty, specifically regarding his relationship with mother. As to the second prong, the juvenile court found it would not be in the best interests of the children to uproot them. The juvenile court noted that, at the time services were terminated, Robert had a lot of trepidation about visiting father. He had now made improvements and was beginning to thrive in his current placement, where he had been for a significant amount of time. The juvenile court noted M.G. had spent "pretty much spent his entire life" in the care of the caregivers. To say that the juvenile court should now abruptly turn the children over to their father would not be in their best interest.
We find no abuse of discretion on the part of the juvenile court in denying an evidentiary hearing on father's section 388 petition.
II. BONDING STUDY
Father, with mother joining, contends the juvenile court erred when it denied father's request for a bonding study, which he alleges would have aided the juvenile court in its determination of the relative benefits of the parent-child relationship. We find no abuse of discretion.
A bonding study is an expert's opinion on the relationship between the parent and child or between siblings. Such a study is not required prior to termination of parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339; In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) The juvenile court is never required to appoint an expert when making a factual determination—here, the relative benefit of the parent-child relationship as compared to adoption—unless "it appears to the court ... that expert evidence is ... required." (Evid. Code, § 730.) Thus, when there is extensive evidence in the record of the relationship between parent and child, a bonding study is unnecessary. Absent a showing of clear abuse, the exercise of the court's discretion in granting or denying a request for a bonding study will not be overturned. (In re Stephanie M, supra, 7 Cal.4th at pp. 318-319; In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.)
Father contends his request for a bonding study was justified because new evidence was submitted by the agency in the form of a visitation report from a very recent visit and was needed to refute the negative implications of this evidence. However, this was not the only visitation report or the only negative visitation report. It was just a very recent negative visitation report. There were some 50 pages of reports and logs of visitation over a 14-month period between father and the children to demonstrate the parent/child relationship.
Based on the record, it was not an abuse of discretion for the juvenile court to deny father's request for a bonding study, which would have caused additional delay in achieving permanency for the children.
III. PARENT-CHILD BENEFIT EXCEPTION
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances enumerated in section 366.26, subdivision (c)(1)(B)—actually, exceptions to the general rule that the court must choose adoption—provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Instead, it is the parent's burden to show termination would be detrimental under one of the exceptions. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences that uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted, in assessing the evidence; appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court's judgment. (See ibid.)
At issue here is section 366.26, subdivision (c)(1)(B)(i), the parent-child exception to adoption, which applies if the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. For this exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Interactions between the natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child's life in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
While mother and father love their children and both have had some positive visits with them, these positive qualities are not enough to establish the statutory exception to adoption. Rather, mother and father needed to demonstrate they occupied a parental role in their children's lives resulting in a significant, positive, emotional attachment from child to parent. (In re Breanna S. (2017) 8 Cal.App.5th 636, 648.) The evidence mother and father occupied this crucial role in their children's lives was inadequate. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 954.)
Mother and father's visits with the children still required supervision and neither parent was anywhere near the stage where they were prepared to become full-time caregivers; mother, in fact, acknowledged as much at the section 366.26 hearing. The visitation reports for mother showed that she continued to be unable to divide her time between Robert and M.G. or to handle them both together. Robert was largely ignored, became bored and wanted to leave early. When mother did recognize that Robert wanted attention, she labeled him as "spoiled." Robert, diagnosed with ADHD and PTSD, had special needs mother was oblivious to. Rather than assist him with his speech delays, she repeatedly spoke to him with baby talk and the two argued, "like children." She was particularly unable to understand the impact her violent relationship with father had on Robert.
Father's visitation reports also showed that he spent more time with M.G. than he did with Robert, leaving Robert to play alone, become frustrated, or act out negatively, resulting in attention in the form of discipline. As early as October of 2016, Robert stated he did not want to attend visits with father because father ignored him. Both his caregiver and his teacher reported negative behavior on Robert's part particularly after visits with father. Robert stated that he did not wish to return home as he did not feel safe and that, if he did return home, it would be to protect his little brother.
Father refused to believe that Robert was afraid of him or that he did not want to visit him. Instead, father blamed these feelings on the caregiver's manipulation of Robert or on the actions of the other residents' behavior in the facility where father lived. Father never accepted that he could be the problem or modified his behavior with Robert's concerns in mind. As for M.G., who had never lived with father, there was no evidence that he had a strong attachment to father.
Based on the above, we find there is substantial evidence to support the juvenile court's finding that father and mother failed to meet their burden of proof to establish the beneficial parental child relationship exception. We agree with the juvenile court. There was insufficient evidence that the children would benefit more from continuing their relationship with father and mother than from adoption.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.