Opinion
E074599
07-08-2020
In re L.R., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.R., Defendant and Appellant.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ1600718) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
Christopher R. (Father) filed a petition under Welfare and Institutions Code section 388 asking the juvenile court either to return his minor daughter to his custody with family maintenance services or to order additional reunification services for him. The court denied the petition and then terminated parental rights, freeing the minor for adoption. (§ 366.26.) Father appeals from the order denying his section 388 petition and the order terminating his parental rights. We affirm.
Unlabeled statutory references are to the Welfare and Institutions Code.
BACKGROUND
A. Initial Detention
L.R., the minor daughter, was born to K.R. (Mother) in November 2016. In the first two days of L.R.'s life, the Riverside County Department of Public Social Services (the Department) received two referrals alleging general neglect of L.R. On the first day, Mother had asked hospital staff to remove L.R. from Mother's room because Mother said that L.R. looked like her father. Because of that behavior and an alleged suicide attempt by Mother the month before that resulted in Mother's hospitalization, a psychiatrist evaluated Mother. The psychiatrist advised hospital staff not to leave L.R. alone in the room with Mother and not to allow Mother to leave the hospital with L.R. until Mother's mental health needs were addressed. Mother refused to take prescribed psychotropic medication.
During an interview with social workers two days after L.R.'s birth, Mother identified Father as L.R.'s father. Mother acknowledged that she had mental health issues and a substance abuse problem. She last used methamphetamine in October 2016. She said that she and Father had been involved in domestic violence for most of their relationship, with the most recent incident occurring in October 2016. That incident led to Mother's hospitalization under section 5150 for her attempting suicide.
The Department filed a dependency petition under section 300 alleging that L.R. was at substantial risk of serious physical harm as a result of Mother's abuse of controlled substances and unresolved mental health issues and both parents' acts of domestic violence. (§ 300, subd. (b)(1).) The petition further alleged that Father was not a member of the household and had placed L.R. at substantial risk of harm by failing to provide her with adequate food, clothing, shelter, medical treatment, and protection. (§ 300, subd. (b)(1).) The court found Father to be an alleged father and authorized a paternity test. The court detained L.R. from her parents. L.R. was placed with her maternal great grandparents. B. Initial Jurisdiction and Disposition Hearing
At a jurisdiction and disposition hearing held in January 2017, the court found Father to be the biological father based on a positive paternity test. Father had moved to Louisiana and was not present at the hearing. During an interview with a social worker the previous month, he claimed that there had been only one incident of domestic violence between him and Mother—the incident she described in October 2016. Father denied current drug and alcohol use but admitted that he had used methamphetamine with Mother once in August 2016.
The court found true the jurisdictional allegations under subdivision (b)(1) of section 300 as to both Mother and Father and adjudged L.R. a dependent. The court authorized Mother to live in the home of her maternal great grandparents along with L.R. Reunification services were ordered for both parents. Among other requirements, Father's case plan required him to attend individual therapy and parenting classes and to submit to random drug testing. C. Initial Reunification Period
Father continued to live and work in Louisiana. He was involved in an "on again off again" romantic relationship with Mother for some unspecified period. Father did not engage in any services for the first five months of the review period. In June 2017, he enrolled in a parenting class, and he started attending individual therapy sessions the next month. Father visited with L.R. through phone and video chats and appeared to be bonding with her. L.R. appeared to enjoy the video chats with Father.
At a contested six-month review hearing in August 2017, the court ordered Mother to enroll in an inpatient substance abuse treatment program and Father to take an 80-hour alcohol test. The therapist who saw Father in July 2017 diagnosed him with a moderate alcohol use disorder. Father's case plan was modified to include that he "[s]tay sober and show [his] ability to live free from alcohol dependency." The status review hearing was continued. On the same day, L.R. was removed from the custody of the maternal great grandparents and placed with a foster family.
Within one week of the hearing, in early September 2017, Father moved back to Riverside County and then obtained employment. He also enrolled in substance abuse services and did not miss any sessions. All of the drug tests he took were negative for all substances. Father consistently attended supervised visits with L.R., and the visits went well.
At the continued contested six-month status review hearing in October 2017, the court extended reunification services for both parents. The court authorized the Department to grant both parents unsupervised and weekend visits with L.R. The court also granted the Department discretion to place L.R. with both parents with family maintenance services.
The next month, the Department exercised its discretion to grant both parents unsupervised visits, and the following month the Department granted both parents unsupervised weekend visits. The visits went well. Father and L.R. shared a noticeable bond.
The Department placed L.R. with both of her parents on January 9, 2018. Mother and Father were living together. Father was employed. Father was continuing to participate in substance abuse services and had recently begun receiving individual counseling.
At the 12-month review hearing at the end of January 2018, the court ordered L.R. placed with both parents and ordered family maintenance services. D. Section 387 Petition and Detention
In June 2018, the Department received a referral alleging that Mother and Father had gotten into "'a huge fist fight'" at their home and that Mother had left with L.R. It was further alleged that this was not the first physical altercation between the parents and that such altercations occurred around L.R. It also was alleged that Father drank and that Mother was suspected of using methamphetamine. On the day that the referral was received, a law enforcement officer met with a social worker at the parents' home. The officer confirmed that he had responded to a call about arguing at the home the night before, but no one answered the door. No one answered the door on the day of the referral either.
In an interview with a social worker the next day, Mother admitted that she and Father argued but claimed that there had been no physical violence. She also denied any drug use. She tested positive for methamphetamine on a saliva drug test and later in a urine drug test. Father was interviewed too and also denied that there had been any violence. He said that it was only a verbal altercation. He also denied any current alcohol or substance use of his own and denied that Mother used methamphetamine. Father's urine drug test was negative for all substances. Father was no longer employed.
Law enforcement had been called to the home six times between December 2017 and the day of the referral in June 2018—once in December 2017, once in March 2018, and four times in June 2018. On one of the occasions in June, Father was arrested for battery under Penal Code section 243, subdivision (e)(1). He was taken to jail and released the next day on bail. According to the arrest report, both parents were drinking, and L.R. was not present during that incident. The arresting law enforcement officer believed that Mother's injuries were not consistent with her version of events, which included an allegation that Father punched her in the face. Father admitted to pushing Mother but denied punching her.
On June 25, 2018, the Department filed a section 387 petition, alleging that L.R. was at risk from Mother's and Father's failure to comply with their case plans. As relevant to Father, the petition also alleged that Mother and Father "continue[d] to engage in acts of domestic violence in [the] presence of the child, and have failed to benefit from the services provided." The court ordered L.R. detained from her parents. Both parents were permitted twice weekly supervised visits.
L.R. was placed with the same foster family with whom she had lived previously. The foster parents reported that L.R. returned to them "thin and 'very skittish.'"
In a status review report the next month, the Department reported that Mother and Father remained in a relationship with each other. Despite having participated in and completed an outpatient substance abuse program in April 2018 (when L.R. was living with him and Mother), Father admitted that he had relapsed with alcohol during the review period. He provided no information about when that relapse occurred or if it was a single occasion. All four drug tests Father took after L.R.'s detention were negative for all substances. Father reported that he had been attending weekly individual therapy sessions after L.R.'s detention and that he was set to begin anger management classes in late July 2018. Father and Mother attended supervised visits with L.R. together. Those visits appeared to go well. E. Section 387—Contested Jurisdiction and Disposition Hearing
In September 2018, the court held a contested jurisdiction and disposition hearing on the section 387 petition. Father had continued to test negative for all substances in all of the drug tests that he took. Father continued to attend supervised visits with L.R. The court found the allegations in the section 387 petition to be true and removed L.R. from both parents. The court set a selection and implementation hearing under section 366.26. Visitation for Mother and Father was reduced to two supervised visits per month, two hours per visit. F. Subsequent Reports and Proceedings
In October 2018, Father missed a scheduled visit with L.R. Ten days later, he informed the Department that he had moved to Florida. The Department granted his request for video visits with L.R. instead of in-person visits. During two supervised video calls with L.R. in November and December 2018, L.R. "did not pay much attention to the phone and looked at [Father] and the phone less than one minute" of the 10- to 15-minute calls.
In January 2019, the Department reported that L.R. had bonded well with her caregivers and appeared comfortable in their home. She referred to them as "mom and papa." L.R. was described as "an outgoing young girl who smiles and engages with adults and other children." The foster parents loved L.R., were committed to caring for her for the rest of her life, and wanted to adopt her.
In January 2019, the court granted the Department's request for a continuance of the selection and implementation hearing to conduct an adoption assessment of L.R.'s foster family. Father was present at the hearing. The court ordered the Department to schedule one in-person visit for Father with L.R. while he was in town. The court also granted Father twice monthly, 15-minute video visits with L.R. or one-hour in-person visits if Father was in California for the visit. The Department was ordered to obtain an Interstate Compact on the Placement of Children (ICPC) evaluation of Father's new home in Florida once he provided the Department with his new address.
Between the January 2019 hearing and May 2019, Father regularly attended scheduled video visits with L.R. and her foster mother. Both Father and L.R. appeared to be in good moods during the visits. L.R. displayed affection for Father by kissing the screen. In May 2019, the ICPC evaluation of Father's home in Florida was reported as being "in process."
L.R. continued to be well bonded with her foster family. She looked to them for comfort and protection. L.R. had started preschool in April 2019 and was not adjusting well. She communicated poorly, could not self-regulate, and was not interacting well with other students or with teachers. The foster parents accepted suggestions from the school and the Department about the care and well-being of L.R.
In May 2019, the court granted the foster parents' request to become L.R.'s de facto parents. After the hearing, Father attended one in-person visit with L.R. that was monitored by the de facto mother. A social worker observed that L.R. was not being talkative with Father during the visit. Father attended most of his twice-monthly visits with L.R. The de facto mother reported that Father attempted to keep L.R.'s attention during their phone visits but that L.R. was "not as responsive over the phone" because of her age. L.R. minimally interacted with Father. In June 2019, L.R. was placed with respite caregivers for approximately one month while the de facto mother was undergoing and recovering from a medical procedure. G. Section 388 Petition and Subsequent Proceedings
The record on appeal contains a de facto parent request as to the foster mother alone. However, the parties refer to de facto parent requests being made by and granted as to both foster parents. We therefore follow the parties in referring to both foster parents as de facto parents. The issue is of no consequence to Father's appeal.
In July 2019, Father filed a petition under section 388 requesting that the court "order Family Reunification Services for Father with authorization for Family Maintenance upon ICPC approval." Father stated that he believed those services would be in L.R.'s best interest.
As to changed circumstances, Father submitted several completion certificates from a single online service provider demonstrating that he had completed a 12-hour anger management course on December 7, 2018, a 12-hour parenting course on November 5, 2018, a 36-hour drug and alcohol education course on November 3, 2018, and a 16-hour online domestic violence class on November 4, 2018. He also attached August 2018 letters from California-based programs stating that he had attended several domestic violence and anger management courses in July and August 2018 after L.R. was detained. He also submitted negative drug and alcohol test results from November and December 2018. He also submitted evidence demonstrating that he was employed full-time and had secured appropriate housing, according to an ICPC evaluator. The ICPC evaluation in Florida was nearly complete, pending a background check on Father's father, with whom Father was living. Father's home was found to be "clean, uncluttered, and hazard-free" in April 2019.
In August 2019, the Department reported that Father continued to attend twice monthly visits with L.R. The quality of the visits in July and August 2019 was described as "strong" or "adequate." L.R. appeared to be in a good mood in all of the visits and warmed up to Father during the visits. L.R. kissed the phone screen on multiple occasions, as if she were kissing Father. L.R. was adjusting well and thriving in the home of her de facto parents. She had grown accustomed to the family's routine and found a sense of security with them. She had started to participate in head start.
A preliminary adoption assessment report of the de facto parents was submitted to the court in August 2019. The social worker reported that L.R. "appeared very comfortable in her home environment" and ran around the house playing with her toys. L.R. was "very bonded" to both de facto parents. A specialist examined L.R. in July 2019 to address her hyperactivity. The specialist recommended further medical procedures to rule out "Autism/Asperger's Syndrome." The social worker recommended that L.R. remain with her de facto parents and be adopted by them.
The court granted a hearing on the section 388 petition. During a hearing in August 2019, the court acknowledged that Father had made "[a] lot of progress" in his life and that there appeared to be changed circumstances. However, the court expressed concern about whether granting Father's section 388 petition would be in L.R.'s best interest given that she "ha[d] not been in [F]ather's care for a significant period of time." The court ordered Father and the de facto parents to participate in bonding studies. H. Bonding Studies and Testimony of the ICPC Evaluator
In September 2019, Dr. Dean Leav, Psy.D. conducted separate bonding studies of L.R., who was two years old at the time, with Father and each of her de facto parents. In all of the studies, Dr. Leav observed the adults engage in unstructured play with L.R. and asked the adults to exit the room and then to reenter the room and reengage with L.R. L.R. appeared comfortable with all three adults. When Father was asked to leave the room, L.R. started whining, and Father reassured her that he would return. L.R. appeared anxious when Father was gone, could not sit still, asked for "Papi," and started walking toward the door. She smiled when he returned and appeared more at ease. When the de facto mother exited the room, L.R. "quickly walked to the door and started crying." She was inconsolable until the de facto mother returned. L.R. was mildly uncomfortable when the de facto father exited the room, but she was happy to see him when he returned and less anxious afterward.
Dr. Leav concluded that there was a "strong positive bond" between L.R. and each of the three adults. For all three adults, he opined: "[I]t can be reasonably concluded that [L.R.] would likely suffer detriment if the parent/child relationship is terminated. There would likely be negative emotional and social consequences at the very least."
During a hearing in October 2019, the court indicated that the studies were not "very comprehensive" and were "somewhat confusing" because they included the same conclusion for all of the adults. L.R.'s attorney wanted Dr. Leav to testify, and so did the court. Dr. Leav was not available that day, so the court continued the hearing.
The ICPC evaluator was available, however, and testified that day. She confirmed that she visited Father's home for an inspection in April 2019 and interviewed Father for approximately two hours. She had no concerns about placing L.R. with Father. The only information that she had received about why L.R. was removed came from Father. She did not review any of the reports from the dependency case in California. She only ran a criminal background check on Father in Florida. She did not have any knowledge of the online organization through which Father had completed his courses, nor did she have any information about the content of those courses. The ICPC approval remained pending because a background check on Father's father from another state had not been completed. I. Father's Continued Visits with L.R.
In a December 2019 report, the Department reported that Father had continued to have regular twice monthly video visits with L.R. "[o]ver the last month." Father had two in-person supervised visits with L.R. in December 2019. One was at a park, and the other was at a restaurant. During the visit at the park, the de facto mother stayed in the car. L.R. motioned to the de facto mother several times to come play with her, but Father redirected L.R. Father ended the visit one and one-half hours earlier than scheduled. He said that he did so because L.R. was tired; the de facto mother said that Father was tired. Father brought food for himself and L.R. to eat at both visits and engaged with her during both visits. Father maintained video visits with L.R. after the in-person visits and through the next hearing. J. L.R.'s Well-Being with the De Facto Parents
In January 2020, it was reported that L.R. was attending preschool for the second year and had "made a vast improvement in behavior that positively affects her educational learning ability." She continued to refuse to nap but otherwise was performing well. The de facto parents continued to work with the school "to keep a consistent routine between school and home." L.R. was described as a "hyperactive joyous little girl." Her speech remained minimal, which caused her to be frustrated at times. During times of frustration, she found comfort and support from her de facto parents. L.R. was bonded to both of the de facto parents and to their extended family members. The de facto parents wanted to adopt L.R. K. Selection and Implementation Hearing and Section 388 Petition
The record does not reflect any medical follow-up on the hyperactivity issue other than an examination in July 2019.
In January 2020, at a joint hearing on the section 388 petition and for selection and implementation of a permanent plan, Dr. Leav testified. In addition to the bonding study of Father that he had conducted, he reviewed numerous recordings of video visits between L.R. and Father. Dr. Leav opined that, although it was "hard to give a number," there was a 70 percent likelihood that L.R. would suffer negative emotional and social consequences if the relationship with Father was terminated. The court asked the doctor to provide a foundation for that opinion. Dr. Leav testified that the opinion was based on numerous studies about "the likelihood of these kids suffering certain detriments as they get older." Those studies included (1) a study involving children in orphanages who did not have any parent-child bond before the age of two years; (2) a study involving the effects of separation from a parent or caregiver on children aged six months to five years, though Dr. Leav could not recall the circumstances that led to the separation; (3) a 1940s-era study focusing on the maternal bond in children who were separated from their mother before the age of five years; and (4) a study involving children under the age of two years who were taken away from their biological parents and placed with "early Head Start families." Dr. Leav conceded that he was not certain what type of bond—positive or negative—the children in these studies had with their parents before separation. Dr. Leav opined that L.R. also would suffer detriment if separated from her de facto parents. He speculated at first that the "percent of detriment" would be 51 percent but then said that the detriment would be comparable to that caused by the loss of Father. Dr. Leav nevertheless concluded that it would be more traumatic to be separated from Father because L.R. was biologically related to him. He explained that if L.R. were separated from Father, she would be "left with that lingering question, 'Where is my daddy, my biological father.'" The possible consequences of the answer to that question could "cause the child to feel neglected or abandoned." In contrast, it would be easier for L.R. to adapt later in her life to the loss of her foster parents than to the loss of Father.
The court denied the section 388 petition. The court acknowledged that Father had changed some circumstances—obtaining full-time employment, not living with Mother, and securing appropriate housing. However, the court expressed concern about whether Father had changed circumstances with respect to the core issues that led to removal—alcohol use and domestic violence. The court found the evidence of online courses to be "weak." Nevertheless, after remarking about the strengths and weaknesses of all of Father's alleged changed circumstances, the court concluded: "I was sort of ambivalent on change of circumstances. I think in other—that by a preponderance of the evidence, in a vacuum, [F]ather has shown a change of circumstances." But the court concluded that Father had not met the "best-interest standard."
After denying the petition, the court found that L.R. was likely to be adopted and that the parental bond exception did not apply. The court found Dr. Leav's "testimony to be sort of vague and murky and squishy." The court found that Father's positive interaction with L.R. during their limited visits did not create such a beneficial parental relationship as to outweigh the well-being that L.R. would gain in a permanent, adoptive home. The court accordingly terminated parental rights.
The parental rights of L.R.'s mother were also terminated. She is not a party to this appeal.
DISCUSSION
A. Denial of Father's Section 388 Petition
Father argues that the trial court abused its discretion by denying his section 388 petition. We disagree.
Section 388 allows the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order. (§ 388, subd. (a)(1).) "A section 388 petition must show a change of circumstances and that modification of the prior order would be in the best interests of the minor child." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "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." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) In determining whether the burden has been met, the juvenile court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
After reunification services are terminated, the focus in dependency proceedings shifts from family reunification to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) A court entertaining a section 388 petition at this stage in the proceeding "must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.)
We review the denial of a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358 .) "Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (Ibid.; Stephanie M., supra, 7 Cal.4th at p. 318.)
It is not clear whether the juvenile court concluded that Father had carried his burden of showing changed circumstances. Both parties appear to assume that the court concluded that Father did not. But the juvenile court stated in conclusion on the matter that "by a preponderance of the evidence, in a vacuum, [F]ather has shown a change of circumstances." We need not address the issue, however, because the court reasonably concluded that granting Father additional reunification services would not promote L.R.'s best interests.
At the time of the hearing, L.R. was three years and two months old. She had lived in the home of her de facto parents for 23 months total—most of her life and longer than she had lived with anyone else. L.R. was closely bonded to her de facto parents and was thriving in their home. That is not to say that she did not have challenges. But, for instance, her initial difficulties with preschool were no longer present by her second year in attendance. L.R. referred to her de facto parents as "mom" and "papa" and looked to them to comfort her. The de facto parents loved L.R. and wanted to adopt her. At this stage of the proceedings, it was in L.R.'s interest "'to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.'" (In re Celine R. (2003) 31 Cal.4th 45, 52-53 (Celine R.).) "Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker." (In re J.C. (2003) 226 Cal.App.4th 503, 527 (J.C.).)
Because there was no evidence that the ICPC evaluation had been completed by the time of the hearing on the section 388 petition, all that Father was requesting at that time was further reunification services. The request for placement was contingent upon "ICPC approval." That approval remained pending in October 2019, and no evidence was presented to the contrary at the later combined hearing in January 2020. The trial court reasonably determined that it was not in L.R.'s best interest to disrupt her stable pre-adoptive placement and reinstate Father's reunification services in the hope that, unlike earlier in the case, this time he would make meaningful and lasting progress in addressing the issues that led to L.R.'s removal.
Father argues on four grounds that it would be in L.R.'s best interests to grant him further reunification services. First, he argues that he shared a strong bond with L.R. and that further reunification services would serve L.R.'s interest in "preserv[ing] the biological relationship." Second, he maintains that Dr. Leav's bonding studies demonstrate that L.R. would suffer greater detriment if separated from him than from her de facto parents. Third, he argues that the trial court gave insufficient weight to his ICPC evaluation. Fourth, he contends that he can provide her a better home than the de facto parents. All of Father's arguments are unavailing.
Father also relies on the three-factor test set out in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 (Kimberly F.) for determining whether the proposed change is in the child's best interest. He also acknowledges, however, that the same court that decided Kimberly F. later stated that the three factors articulated in that case "do not take into account the Supreme Court's analysis in Stephanie M." (J.C., supra, at p. 527.) He then argues that the juvenile court "abused its discretion under either test." We address each of Father's substantive arguments about the court's best interest determination in light of the focus at this stage in the proceedings on L.R.'s need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.)
He first contends that "[i]t is in L.R.'s best interest to be raised by her natural father, so long as that placement is stable." That is not the law. Before reunification services are terminated and the section 366.26 hearing is set, "a parent and a child share a fundamental interest in reuniting." (J.C., supra, 226 Cal.App.4th at p. 527.) That is because "[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Consequently, "[r]eunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.'" (Ibid.) Once reunification efforts have ended, however, the court's focus is no longer preserving the family through reunification. Instead, the focus shifts "toward promoting the child's needs for permanency and stability." (J.C., at p. 527; Stephanie M., supra, 7 Cal.4th at p. 317.) Father's argument fails because it fails to take into account that shift, maintaining instead that it was in L.R.'s best interest to delay adoption, and thus permanency, in favor of further reunification services for Father because of their familial relationship. Extending the period of reunification does not best serve the goal of permanency and stability. Instead, it serves Father's interest of preserving the familial relationship. L.R.'s interests in permanency and stability would be better served by staying with the family whom she loved and who loved her and had cared for her for most of her life. (See J.C., at p. 528.)
Father's reliance on the bonding studies fares no better. Father acknowledges that Dr. Leav concluded that L.R. had an equally strong and healthy bond with both Father and her de facto parents. Father, however, focuses on Dr. Leav's opinion that L.R. will likely suffer greater long-term detriment from being separated from Father than from her de facto parents because of L.R.'s biological relationship to Father. That is, other things being equal, as Dr. Leav concluded they were, L.R.'s bond with Father is purportedly more significant solely because of their shared biology. Even assuming that conclusion is true, it does not help Father at this stage of the proceedings. Aside from shared biology, Father does not explain how Dr. Leav's bonding studies demonstrate that it would be in L.R.'s best interests for reunification services to be continued for Father. As we have explained, once reunification services have been terminated, the court is longer focused on preservation of the family. Dr. Leav's opinion about the relative importance of Father's relationship with L.R. because of their biological relationship is therefore irrelevant.
Father's argument about the juvenile court purportedly giving insufficient weight to the ICPC evaluation also fails. Setting aside whether the trial court properly considered the ICPC evaluation, at most that evaluation demonstrates that Father had an appropriate home and stable employment—in other words, that those particular life circumstances had changed. Nothing in the evaluation demonstrates how it would be in L.R.'s interests of permanency and stability to derail adoption in favor of providing Father further reunification services. Nor could it. The ICPC evaluator only met with Father—not with L.R. or her de facto parents—and the evaluator's only knowledge of the case came from Father's explanation. The evaluator had no context from which to provide an assessment of L.R.'s best interests. She could offer only a superficial opinion about the state of Father's current home and life circumstances. And in any event, we do not reweigh the evidence. The weight accorded to the ICPC evaluator's opinion by the trial court was reasonable, so it did not constitute an abuse of discretion.
Father's final argument is to attack the fitness of the de facto parents on numerous grounds, including their age, health status, and language abilities (their primary language is not English). That argument too goes to the weight of the evidence and does not show an abuse of discretion. On the one hand, Father has had juvenile dependency petitions sustained against him twice (the original section 300 petition and the section 387 petition), L.R. has been removed from him twice, and the trial court reasonably concluded that the record contains insufficient evidence that Father has resolved the underlying issues. On the other hand, the de facto parents have never had juvenile dependency petitions sustained against them, L.R. has lived with them for most of her life, and she is thriving in their care. The concerns raised by Father may show that the de facto parents are not perfect, but they do not show that it was unreasonable for the trial court to determine that granting Father's section 388 petition was not in L.R.'s best interest.
For all of these reasons, we conclude that the juvenile court did not abuse its discretion by denying Father's section 388 petition. B. Termination of Parental Rights
Father further contends that the juvenile court erred by terminating parental rights because the parental bond exception applied. That contention also lacks merit.
At the hearing under section 366.26, the court selects and implements a permanent plan for the child. (Celine R., supra, 31 Cal.4th at p. 52.) When the court finds that "it is likely that the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" unless at least one of several statutory exceptions applies. (§ 366.26, subd. (c)(1); Celine R., supra, at p. 53.) As relevant here, the parental bond exception provides that a court can forego terminating parental rights if the court "finds a compelling reason for determining that termination would be detrimental to the child" because (1) "[t]he parent[] ha[s] maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) This exception "to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.'" (Celine R., at p. 53; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343.)
We review the court's finding on the existence of the beneficial parental relationship for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.); In re J.S. (2017) 10 Cal.App.5th 1071, 1080 (J.S.) [sibling bond exception].) Whether "the relationship is a 'compelling reason' for finding detriment to the child" is a "'quintessentially' discretionary decision" that we review for abuse of discretion. (Bailey J., supra, at p. 1315; see J.S., supra, at p. 1080 [hybrid standard applies to sibling bond exception].)
"Appellate courts are divided over the appropriate standard of review for an order concerning the applicability" of the parental bond exception. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have reviewed the decision for abuse of discretion, others have reviewed it for substantial evidence, and still others have combined the two and taken a hybrid approach, as we do. (Ibid.; see J.S., supra, 10 Cal.App.5th at p. 1080.) Our Supreme Court recently granted review of the issue and will therefore resolve "what standard governs appellate review of the [parental bond] exception to adoption." (In re Caden C. (2019) 444 P.3d 665.)
"A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] No matter how loving and frequent the contact, and notwithstanding the existence of an '"emotional bond"' with the child, '"the parents must show that they occupy 'a parental role' in the child's life."'" (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) In making that determination, "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
Assuming for the sake of argument that L.R. would derive some benefit from maintaining her relationship with Father, he has not shown that the trial court abused its discretion by determining that any such benefit does not outweigh the benefit L.R. would derive from adoption. There is no evidence that Father occupied a "meaningful and significant parental role." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) L.R. had lived with Father for approximately five months total while she was one year old. After L.R. was detained in June 2018, all of Father's visits with her remained supervised. In addition, Father moved out of state to Florida in October 2018. Most of his visits thereafter were by video. There is no question that L.R. was bonded with Father and enjoyed his company, whether in-person or via interactive video. But Father failed to show anything more than that he and L.R. enjoyed loving and frequent contact. A loving and friendly relationship is "'not enough to outweigh the sense of security and belonging an adoptive home would provide.'" (In re Jason J. (2009) 175 Cal.App.4th 922, 938.)
The trial court found and no one disputes that Father maintained regular visitation with L.R.
Father cites a summary of a supervised in-person visit that he had with L.R. in July 2019 as support for the proposition that he "demonstrated a parental role and showed age appropriate expectations." The summary does say that Father used age appropriate expectations during that visit, but it does not say that he acted in a parental role. Rather, the response to the form's query of "[d]emonstrates [p]arental [r]ole" is "[o]ther." The report provides no additional information in response to that line item, nor does it otherwise support Father's claim that he acted in a parental role. Moreover, Father's conduct at a single visit, however loving and attentive, cannot show that Father occupied a parental role in L.R.'s life.
That showing would be difficult to make in the circumstances of this case. It would be challenging to occupy a parental role in L.R.'s life, particularly given her young age, with the limitations on the amount of time Father and L.R. spent together (twice monthly, mostly 15 minute visits) and how that time was spent (primarily via video and supervised). (Casey D., supra, 70 Cal.App.4th at p. 51 ["The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child"].)
Moreover, the record indicates that L.R. was happy, attached, and well bonded to the de facto parents and that she was thriving in their home. They loved her and wanted to adopt her. The benefits to L.R. of being in a secure and stable home for nearly one and one-half years were apparent. For instance, although she initially struggled to adjust to preschool, she had made vast behavioral improvements by her second year. Father failed to present any evidence that L.R.'s relationship with him was so beneficial that it was an abuse of discretion for the trial court to determine that the detriment to L.R. of terminating that relationship did not outweigh the benefit to L.R. of permanency through adoption.
Father contends that the trial court failed "to give proper weight to the opinion of the bonding expert as to the long-term detriment to L.R. in severing the strong bond between her and her biological father." The argument lacks merit. "It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
In any event, the bonding studies are not helpful to Father. Dr. Leav concluded that Father and the de facto parents shared similarly strong bonds with L.R. and that L.R. would suffer detriment if any of those bonds were severed. The biological connection between Father and L.R. was the only reason that Dr. Leav gave for his opinion that the detriment would be worse if the relationship with Father were severed. That determination was not based on the particular relationship between Father and L.R. Rather, it amounts to a general attack on the strong legislative preference for adoption. (J.C., supra, 226 Cal.App.4th at p. 528; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We are not at liberty to override that legislative preference on the basis of Dr. Leav's opinions.
Father also argues that guardianship "can provide as much stability and permanency as adoptions." This argument too amounts to a generalized attack on the legislative preference for adoption. Again, we are not at liberty to ignore that preference. --------
For all of the foregoing reasons, we conclude that the juvenile court did not abuse its discretion by concluding that the benefits L.R. would receive from adoption outweighed any possible detrimental impact that might occur from severance of the relationship she had with Father.
DISPOSITION
The orders denying Father's section 388 petition and terminating Father's parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.