Opinion
E081602
11-13-2023
In re R.R., a Person Coming Under the Juvenile Court Law. v. C.R., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J289600, Cara D. Hutson, Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
In this dependency case, defendant and appellant C.R. (father) appeals the termination of his parental rights to his child R.R. (Welf. and Inst. Code, § 366.26.) He argues the court erred by failing to apply the beneficial parental relationship exception. We affirm the judgment.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
This appeal concerns father's child R.R. (born 2021). Shortly after R.R.'s birth, the department received a referral alleging general neglect. R.R. was born suffering from withdrawal symptoms, and mother admitted using drugs while pregnant with him. The department detained R.R. the day after he was born.
In June 2021 the department filed a petition under section 300, subdivision (b). The petition alleged mother and father had a history of substance abuse, and that mother had a history of domestic violence and mental health issues. The court detained R.R. from the parents later that month and ordered supervised visitation. It held a jurisdiction and disposition hearing the next month. At that hearing the court dismissed the domestic violence allegation against mother, but otherwise sustained the petition and ordered reunification services for both parents.
Throughout the dependency father was mostly consistent with visitation, and only missed a few visits due to work. The department reported that all these visits went well.
Father was engaged and appropriate with R.R. Father changed diapers, played appropriately, brought toys, fed R.R., and otherwise interacted with him in a positive manner. In August 2022 a social worker heard R.R. refer to father as" 'dadda.'" The visiting monitors never reported having to intervene in the visits, and even described them in glowing terms, saying, for instance, that they went" 'extremely well.' "
R.R. had a number of developmental delays and received services for these delays including occupational therapy, mental health, and speech services. The parents were invited to participate in these services. Neither parent participated; father said he was unable to because he was working, while mother either did not appear or kept her camera off if she did try to participate.
Throughout the dependency mother was extremely inconsistent with court-ordered drug testing. By January 2022, six months after the beginning of dependency proceedings, mother had missed five drug tests and tested positive in three. Only four tests were negative. Father was also inconsistent with drug testing, missing four tests, but tested negative in five and had two tests pending. He also completed an outpatient treatment program. Between January and June mother stopped appearing for drug tests at all, missing eight. Father missed one test but tested negative in eight others. Because mother stopped testing, the department recommended finding that she had failed to complete her case plan. It also recommended terminating reunification services for both parents.
In June 2022 the court continued parents' reunification services to the section 366.22 date. The court told the parents "that when we come back in December, if you haven't completed your case plan or one has and one hasn't but you're still living together, we'll be out of time." It repeated to father specifically that because mother was not showing up for drug testing, "[i]f we come back in December and the two of you are living together and Mom has not followed through with the testing component, the child will not be returned to that home and it will be too late to then say 'Now I'm willing to move out.' "
The court held the section 366.22 hearing in December 2022. Mother and father were still living together, and mother had not participated in testing. The court acknowledged "that Father did engage in his plan and, frankly, has done well for a period of time. But it is clear to the Court he's prioritize[d] the relationship with the Mother over that of the child. He's indicated a willingness to separate from her but he's not done so. He continues to reside with her despite the fact that she's missed all tests and is not engaged in any services." Accordingly, the court terminated reunification services. However, the court also noted that it saw "the difference in the visits" between mother and father because "she does not have the bond Father is trying to build with the minor." It also "note[d] the minor has positive visits and [father's] interactions are transcribed to go well."
In April 2023, prior to the section 366.26 hearing, the department reported that R.R. had been placed with his current placement for the last 10 months, since May 2022, and was likely to be adopted. He had adjusted well to the home and developed a strong bond with the caregivers. The caregivers expressed their desire to adopt R.R. and said," 'he has been our son since day one.'" The department observed a mutual attachment between R.R. and his caregivers.
The court held the 366.26 hearing in June 2023. Father testified that he visited R.R. regularly. He said that he brings toys to visits, and that when he visits they play together, watch children's television, and practice R.R.'s speech. Father believed continuing the relationship would benefit R.R., saying "I grew up without meeting my father and I understand how it . . . affected my life growing up." He disagreed with the recommendation to terminate parental rights "[b]ecause I'm his father. I want to raise him." He said he had a nice home with a bed for R.R. and a support system. He also said he would agree to legal guardianship if it meant he could stay in R.R.'s life.
The court read and considered the department's reports and father's testimony. It "agree[d] with the department that although the first prong is clearly met, [father] falls short of all the prongs of Caden C. " The court said it looked "specifically at [R.R.'s] mutual attachment with [his caregivers] and both child and prospective adoptive parents seem to have a rather strong bond." It therefore concluded the parental benefit exception did not apply and terminated father's parental rights.
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
ANALYSIS
Father argues the trial court erred when it terminated his parental rights because it should have applied the parental bond exception. Specifically, father contends the court erred in its consideration of the elements used to assess whether the parental bond exception applies. We disagree and conclude the juvenile court did not err in deciding not to apply the parental bond exception.
"By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) Adoption is the Legislature's preferred permanent plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., at p. 1350.)
To avoid this outcome, the parent must show that termination of parental rights" 'would be detrimental to the minor' due to any of certain specified circumstances." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) One circumstance, the parental bond exception, applies where the parent can show they "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) There are three elements to this exception: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child[ren] such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631, italics omitted.) In Caden C., our Supreme Court identified "a slew of factors" to consider when assessing the second of these three elements. (Id. at p. 632.)
"The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632.) For the second element, courts may take into account "a slew of factors, such as '[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.'" (Ibid.) As for the third element "in assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home." (Id. at p. 632, italics omitted.)
On review, we apply the substantial evidence standard to the findings on the first two elements and a hybrid standard for the third. (Caden C., supra, 11 Cal.5th at p. 639.) Specifically, whether termination of parental rights would be detrimental to the child because of the beneficial parental relationship is reviewed for abuse of discretion. (Id. at p. 640.) But we review any factual findings underlying that decision for substantial evidence. (Ibid.) In doing so, we look only at the evidence admitted at the 366.26 hearing. (In re L.A.-O. (2021) 73 Cal.App.5th 197, 207-208.) This hybrid standard embodies the principle that as the reviewing court, we may not "substitute [our] own judgment as to what is in the child's best interests for the trial court's determination in that regard." (Caden C., at p. 641.)
There is no dispute that father satisfied the first element. The only question is whether the trial court erred by concluding he failed to meet the other two elements. We conclude that regardless of whether father met the second element, the record is sufficient to demonstrate father did not meet the third element.
Sufficient evidence supported a finding that adoption would bring significant benefits. By the time of the section 366.26 hearing, R.R. had lived with the prospective adoptive parents for 10 months of his nearly two years of life. This care was consistently positive and stable. R.R. seemed well bonded to the caregivers. Allowing them to adopt R.R. was unlikely to be disruptive and likely to permanently solidify a living situation that was already working.
More importantly, there is little evidence that R.R. would experience significant material or emotional harm from terminating his relationship with father. Father presented evidence that his visits with R.R. went well, that R.R. sometimes referred to him as" 'dadda,'" and that he was doing his best to develop a bond with R.R. But this is evidence of a beneficial bond, not necessarily evidence that terminating that bond would be more detrimental than adoption. (See In re D.P. (2022) 76 Cal.App.5th 153, 167 [fact that the children "often called mother 'mom' or 'mommy'" supported second element].) There was no evidence that R.R. had behavioral issues when separating from father, or that he was otherwise emotionally attached to father such that terminating their relationship would cause him harm. Though unfortunate for father, this outcome makes sense. R.R. spent the entirety of his life outside father's care, and he spent much of that time with the prospective adoptive parents. Though R.R. has a good relationship with father, there is no reason to believe this relationship is so strong that terminating parental rights would harm R.R. (See ibid. [fact that "the children would sometimes get upset at the end of the visits when they had to leave their parents" supported third element].)
Thus, viewing the evidence in the light most favorable to the court's order, we conclude it did not abuse its discretion by deciding the costs of terminating R.R.'s relationship with father did not outweigh the benefits of obtaining a final, stable, permanent custody arrangement.
In support of a different conclusion, father argues the juvenile court erred by failing to consider each of the factors our Supreme Court identified in Caden C. on the record. Indeed, father argues that the record indicates the court did not conduct the proper Caden C. analysis at all. Father argues that two recent cases require reversal where the court fails to review the identified factors on the record or where the record is insufficient to permit it to adequately assess the elements: In re J.D. (2021) 70 Cal.App.5th 833 (J.D.) and In re B.D. (2021) 66 Cal.App.5th 1218 (B.D.).
Both cases, however, reviewed juvenile court orders that pre-dated Caden C. and therefore involved courts which may have made decisions based on factors Caden C. later outlawed. Father is right that in J.D. the reviewing court reversed because the juvenile court did not state its reasons for finding against the parents. But that is because the reviewing court "[could not] be sure whether the juvenile court's determination . . . encompassed factors that Caden C. deems irrelevant." (J.D., supra, 70 Cal.App.5th at p. 865.) B.D. is even more distinguishable. In that case, "the juvenile court considered improper factors at the second step of the analysis," when it examined "whether the parents occupied a 'parental role' or whether a 'parental relationship' existed." (B.D., supra, 66 Cal.App.5th at p. 1230.) In essence, these cases required the juvenile courts to reconsider their orders after Caden C., but they did not enact a requirement that juvenile courts explain their analysis of the Caden C. factors or elements.
A more recent case has expressly rejected father's argument. In In re A.L. (2022) 73 Cal.App.5th 1131, 1156, the court stated, "we are aware of no requirement . . . that the juvenile court, in finding the parental-benefit exception inapplicable, must recite specific findings relative to its conclusions regarding any or all of the three elements of the exception. To the contrary, we infer . . . that the court is not required to make findings when it concludes that parental rights termination would not be detrimental."
DISPOSITION
We affirm the order terminating father's parental rights.
We concur: CODRINGTON Acting P. J., FIELDS J.