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In re S.Y.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2020
E073327 (Cal. Ct. App. Jan. 13, 2020)

Opinion

E073327

01-13-2020

In re S.Y., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.Y., Defendant and Appellant.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J254596) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated defendant and appellant, M.Y.'s (Father), parental rights. On appeal, defendant contends the court erred in declining to apply the beneficial parental relationship exception. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Personnel from plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a report on April 14, 2014, alleging general neglect of S.Y. (Minor), born in October 2010, and his sibling, S.V., born in August 2002 (collectively "the children"). On April 21, 2014, the social worker met with C.Y. (Mother); Mother reported that she and Father were having marital problems and that Father had become more violent with her recently. She had found drug paraphernalia in Father's belongings. Mother filed for divorce, which made Father even angrier. During one recent incident, Father dragged Mother out of the home by her neck and threw her in the street within the presence of Minor. Mother called the police and officers arrested Father.

S.V. is not a party to the appeal.

Mother is not a party to the appeal.

At some point, Mother obtained a restraining order. Father continued to stalk her, tracked her phone, broke out her car window, and flattened her tires. Officers arrested Father for violating the restraining order and methamphetamine was found in his pocket. Mother had a prior history with CFS, Riverside County Department of Public Social Services, and Los Angeles County Social Services Agency, which included 10 allegations of general neglect, one allegation of caretaker incapacity due to drug use, one allegation of caretaker absence, and one allegation of severe neglect, all occurring between November 29, 2004, and July 9, 2012. Three of the allegations of general neglect and the allegation of severe neglect were deemed substantiated; the remaining allegations were deemed unfounded, inconclusive, or were "evaluated out."

On April 28, 2014, the social worker met with Father. He denied being violent with Mother, alleging she made it up and was actually violent with him within Minor's presence. Father had a criminal history, which included two prior convictions for being under the influence of a controlled substance. Father had a prior history with CFS, which included two allegations of physical abuse and an allegation of general neglect, all occurring between December 27, 2011, and July 9, 2012; all the prior allegations against Father were deemed unfounded.

CFS personnel filed a juvenile dependency petition alleging Mother was unable to protect Minor from Father's violent behavior (b-1), Father had a substance abuse problem (b-2), and Father had engaged in ongoing domestic violence in the presence of Minor (b-3). At the detention hearing, defense counsel indicated Father was going into a six-month, inpatient Salvation Army recovery program. Father admitted methamphetamine use but denied the allegations of domestic violence. The court ordered Father to randomly drug test beginning that day. The court detained Minor from Father's custody, placing him in Mother's custody under juvenile court jurisdiction.

In the May 23, 2014, jurisdiction and disposition report, the social worker recommended that Minor be removed from Father's custody and remain with Mother. Reports reflected that Mother's prior juvenile dependency proceedings from 2007 included the removal of her children due to her alcoholism and methamphetamine use; Mother was eventually able to reunify with her children. Father stated that he had previously completed Proposition 36 probation, but had since relapsed; he admitted having a substance abuse problem, using methamphetamine daily. Father remained incarcerated.

At the jurisdiction and disposition hearing on May 29, 2014, the court found the allegations in the petition true, declared minor a ward of the court, ordered Minor removed from Father's custody, and granted Father reunification services. The court ordered Minor to remain in Mother's custody under Family Maintenance Services (FMS).

In the status review report dated November 13, 2014, the social worker recommended continued FMS for Mother and continued reunification services for Father. Minor was doing well in Mother's care. Father was making significant progress, had good progress reports, and all his drug tests were negative. Father contacted the social worker immediately upon release from jail: "He was highly motivated and really missed his son, and was willing to drive to Orange County for visits." Minor usually asked to stay longer when it was time for visits to end. Once, minor asked if he could go home with Father: "They both are clearly bonded to one another." The social worker believed it was appropriate to allow unsupervised visitation with Father. Father consistently visited Minor and visits were going "extremely well." Minor "looks forward to seeing his father each week. CFS has observed [Father] to be a very loving and appropriate parent to his son." Father was actively involved in an outpatient treatment program.

Mother had earlier indicated she would be moving to Orange County. Father lived in Yucaipa.

On December 1, 2014, the social worker filed a motion to transfer the case to Orange County, which the court granted. At the status review hearing the same day, the court continued reunification services for Father and FMS for Mother. The court also granted authority to liberalize Father's visitation.

On December 11, 2014, the Orange County Superior Court accepted transfer of the case. On January 22, 2015, the social worker filed an interim review report in which she reported that on December 11, 2014, the Orange County Child Abuse Registry received a report of general neglect as to both children by Mother; she reportedly drove under the influence of alcohol, passed out drunk in the home, and assaulted the children's nanny. The children reported that their nanny was sleeping on their couch. The nanny reported that she lived with Mother and that Mother drank vodka nightly; the nanny said that in November 2014, Mother was "wasted falling down drunk on the floor." The nanny reported that Mother frequently drove intoxicated and drank in front of the children.

The children's nanny was a woman with whom Father had been in a relationship for 17 years who, despite Father's marriage, had become Minor's primary caregiver for "95% of his life."

The referral was closed as inconclusive on January 16, 2015. Mother reported that Father was standing on her balcony on New Year's Eve around midnight; she called the police but he had already left by the time they arrived. Father denied even knowing where Mother lived.

The social worker visited with Father on December 23, 2014; she reported that he "stressed that he was dedicated to his son and would do anything to be involved in his life." Father had unsupervised visitation with Minor for three hours each week. On January 21, 2015, Father was authorized an additional three-hour visit weekly. Father arrived early for visits and stayed for their entirety: "[F]ather has been flexible with visitation times, despite his long commute, and is eager for additional hours. He has repeatedly expressed that his son is the most important thing in his life and that his visits with him are the best part of his week."

On January 26, 2015, the social worker filed a Welfare and Institutions Code section 388 petition requesting an amended case plan for Mother to include substance abuse testing due to the reports of Mother's drinking. At the hearing on the petition, Mother agreed to test and the court granted the petition.

All further statutory references are to the Welfare and Institutions Code.

In the status review report filed on May 21, 2015, the social worker recommended that the court terminate the dependency with exit orders to the family law court. Mother had been testing negatively. Father completed outpatient and relapse prevention programs; he attended 12-step meetings two to three times weekly. Father missed nine drugs tests due to forgetting, difficulties at the testing site, or being in the hospital; all other tests were negative.

Father's visitation had been liberalized incrementally to every other weekend, Friday through Sunday, and one weekday visit every other week. Father had not missed a visit since the inception of the case. Minor enjoyed spending time with Father. The social worker reported that both parents had completed their case plans

On June 29, 2015, the social worker filed another section 388 petition noting that Mother had tested positive for alcohol on May 28, 2015. The social worker requested that the court approve an attached case plan which added 12-step meetings and an outpatient treatment program for Mother if she continued to test positive for alcohol. The court granted the petition.

On July 10, 2015, counsel for the Orange County Social Services Agency (OCSSA) filed an application and declaration in support of a protective custody warrant. Mother had tested positive for alcohol on three occasions. On June 26, 2015, Mother told the social worker Mother had been drinking at night after the children went to sleep; she was having difficulty quitting; she had been prescribed medication to help her stop. On June 30, 2015, the social worker spoke with Mother, who said she went to the hospital, personnel from which wanted to admit her to a detox program. The court granted the protective custody warrant.

On July 14, 2015, OCSSA personnel filed a supplemental juvenile dependency petition alleging Mother had tested positive for alcohol on four occasions. The social worker recommended that the court detain Minor from Mother and place him in Father's care with protective orders. The next day, the court detained Minor from Mother and released him to Father.

In the jurisdiction and disposition report filed on August 10, 2015, the social worker indicated she was greeted by the nanny when she visited Father's house on July 28, 2015. Father admitted to first using methamphetamine approximately 30 years earlier; it was his drug of choice, though he admitted trying "everything." Father reported he has been sober since May 13, 2014. The social worker recommended that the court sustain the supplemental allegations, that Minor be declared a dependent, that Minor remain in Father's custody under the supervision of OCSSA, and that both parents participate in the recommended case plans.

On August 21, 2015, personnel from OCSSA filed an application and declaration in support of a protective custody warrant for removal of Minor from Father. Father had tested positive for methamphetamine on August 5, 2015. Father denied using methamphetamine. The court granted the warrant and the social worker took Minor into protective custody.

In an amended supplemental petition, OCSSA personnel alleged Father had tested positive for methamphetamine. On September 4, 2015, the court detained Minor and approved reunification services case plans. In the September 15, 2015, jurisdiction and disposition report, the social worker reported Father had testified positive for methamphetamine again on August 12, 2015. The social worker recommended that the court sustain the amended, supplemental allegations and provide reunification services for the parents.

In an addendum report dated October 7, 2015, the social worker reported Minor had been placed with the paternal grandmother (PGM). On September 23, 2015, the social worker met with the nanny, who was staying in the PGM's home and assisting with Minor's care. Father tested positive for methamphetamine again on September 4, 12, and 19, 2015. On October 13, 2015, the court found the allegations in the amended, supplemental petition true and approved the proposed case plans.

In an interim review report filed on January 8, 2016, the social worker reported that Mother's family members had informed her that Mother had relapsed and been placed on a section 5150 hold sometime during the week of December 21, 2015. Mother informed the social worker on December 29, 2015, that Mother was sleeping in her car.

In the status review report filed on March 18, 2016, the social worker reported that Mother was homeless; she had been out of contact with the social worker since mid-January. Mother was not in compliance with her case plan. The social worker described Father as moderately in compliance with his case plan. Father was "consistent in his visitation with [Minor] and is eager to have more time with his son." Minor, Father, and Mother were all living in San Bernardino County. The social worker recommended that the matter be transferred back to San Bernardino County and that the parents' reunification services be continued.

In an addendum report filed on March 24, 2016, the social worker noted that Father had tested negative for drugs nine times between February 23 and March 22, 2016, via Medtox, but positive for methamphetamine on February 27, 2016, via patch. Father continued to maintain he had been sober for over a year and attributed his positive patch results to his prior, extensive history of methamphetamine use daily for over 30 years. Father had visitation six hours weekly, all of which went well. Minor reported enjoying spending time with Father. Minor remained in the custody of the PGM with the nanny acting as caregiver.

On March 28, 2016, the Orange County Juvenile Court ordered the matter transferred to San Bernardino County. The San Bernardino County Juvenile Court accepted the transfer, scheduling the next hearing for September 28, 2018.

In an information for the court filed on July 6, 2016, the social worker noted Father failed to show for drug tests on May 9, 27, and June 3, 2016, due to conflicts with work. Father tested negative for drugs on May 24, June 21, 23, and 28, 2016. The social worker recommended that the court authorize Father unsupervised day visits with authority for overnight, weekend, and extended visits. The court authorized the visits as requested.

In the status review report filed on September 3, 2016, the social worker recommended that the court return custody of Minor to Father under FMS. Father had engaged in unsupervised and overnight visits with Minor. Minor reported that he wanted to live with Father. Mother had not visited with Minor since the matter had been transferred back to San Bernardino County.

On September 14, 2016, the court ordered Minor returned to Father's custody under FMS. The court ordered Father to drug test randomly. The court terminated Mother's reunification services.

In the status review report filed on March 3, 2017, the social worker noted Father had tested negative for drugs on September 22, 2016; however, Father had not been in reasonable communication with the social worker and had not been testing randomly as ordered. Father reported he believed he did not have to test anymore. Nonetheless, the social worker opined Father had succeeded in FMS; Father had completed the outpatient treatment, counseling, and parenting components of his case plan. On March 14, 2017, the court ordered Father to drug test immediately.

On March 27, 2017, CFS personnel filed a first amended supplemental dependency petition alleging Father had failed to comply with FMS and failed to provide for Minor's basic needs. On March 20, 2017, the nanny reported that Minor had informed her he had been visiting with Mother. Minor was placed with the PGM again. The social worker met with the nanny and PGM on March 21, 2017; Minor said there was something he was not supposed to tell her; when asked, Minor told the social worker that he saw Mother at a hotel and a park the same day. Father had failed to drug test since September 2016; Father said he could not test because he was on parole and had to be at work. When asked to test on March 23, 2017, Father hung up on the social worker. Father had reportedly become involved in an altercation with the PGM, which resulted in the PGM sustaining bruises to her arm.

On March 28, 2017, the court detained Minor on the first amended supplemental petition. The court ordered Father to test that day. In the jurisdiction and disposition report filed on April 13, 2017, the social worker recommended that the court terminate Father's reunification services and set the section 366.26 hearing. Father failed to show for seven drug tests scheduled between March 3 and April 3, 2017.

The court sustained the amended, supplemental allegation at the jurisdiction hearing on May 9, 2017. At the dispositional hearing on May 17, 2017, the court terminated Father's reunification services and scheduled the section 366.26 hearing.

In the section 366.26 report filed on August 28, 2017, the social worker opined adoption should not be ordered as the permanent plan because Father had maintained regular visitation and contact with Minor and Minor would benefit from continuing the relationship. Father had been visiting Minor once a week for a minimum of two hours. Minor enjoyed the time he spent with Father and talked about how much fun he would have. The caregivers reported Father and Minor were attached and bonded. Minor reported that he enjoyed being with the PGM and the nanny, now referred to as the nonrelated extended family member (NREFM), but reported that he missed Father and wanted to be with him again. The NREFM was living with the PGM and was very attached to Minor and wanted to provide him with a safe home, but was concerned about the prospect of becoming Minor's legal guardian because she was not a blood relative. The PGM felt she was too old to be a permanent guardian or adoptive parent for Minor.

On September 7, 2017, Father filed a section 388 petition requesting reinstatement of reunification services. Father had enrolled in and completed an inpatient drug treatment program where he resided for 49 days, testing cleanly throughout. Father had been attending Alcoholics Anonymous /Narcotics Anonymous meetings and an aftercare program. He alleged he had filed for divorce from Mother and had had no contact with her. On September 14, 2017, the court granted Father's petition, reinstating reunification services for Father.

On February 27, 2018, the social worker filed a status review report in which she recommended that Minor be placed in the NREFM's home and Father's reunification services be terminated. Father had not been drug testing. Minor enjoyed his time with Father and missed him between visits; Minor and Father had a strong relationship. The social worker reported Minor "has been happy and staying active with" the NREFM. Minor "has a great relationship with [the NREFM] and it would tear him apart to remove him from someone he considers a 'mother' figure."

Father failed to appear at the hearing on March 9, 2018, when the court terminated his reunification services and set the section 366.26 hearing. The court continued the matter twice thereafter. In a section 366.26 report, the social worker recommended that the court terminate the parents' parental rights and order a permanent plan of adoption. Father had been consistently visiting with Minor three hours weekly; the visits had been going well. Minor had been placed with the NREFM since April 1, 2018; they had developed a mutual attachment.

The court continued the matter several times thereafter. At a hearing on December 12, 2018, the NREFM indicated she was vacillating as to whether she wanted to adopt Minor. The court continued the matter. In the January 30, 2019, information for the court, the social worker indicated the NREFM now wished to adopt Minor. The court continued the matter again.

In an information for the court filed on March 12, 2019, the social worker reported that Father was visiting Minor three hours weekly. In a section 366.26 report filed on May 29, 2019, the social worker recommended that the court terminate parental rights and order a permanent plan of adoption. The social worker noted that Minor "appears to be securely attached to his [prospective] adoptive parent. This is evidenced by his seeking out his [prospective] adoptive parent [referring to the NREFM] for affection, approval[,] and reassurance during social interactions and for her guidance with obvious expectations that his needs and desires will be properly attended to and met."

The social worker observed: "The [prospective] adoptive foster mother loves [Minor] and they both have a mutual relationship of love and trust." "[A]doption by his caregiver will allow [Minor] to remain with the family that he has been with most of his life and who is committed to his permanency." Minor had known the NREFM since his birth. As the NREFM said: "'I have known [Minor] since the day he was born. We are bonded. [Minor] is my son, and I love him.'" The NREFM wanted to adopt him: "'I want him to have a safe place to grow up and where he feels nurtured and loved.'"

Minor reported that he was happy and wished to remain living with the NREFM; he stated he wanted to be adopted by her. A Child Family Team Meeting "determined that [Minor] and [the NREFM] have a strong loving bond and it would be detrimental to remove [him] from her care." Father continued to have three hours of weekly visitation with Minor, which went well. In a May 30, 2019, information for the court, the social worker reported that Father "has become highly . . . aggressive and vulgar in his text messages to the caregiver."

Father failed to appear at the section 366.26 hearing on June 4, 2019. The NREFM testified Minor was happy when she told him he would be visiting with Father. Minor called Father "Dad." Father had not missed any visits with Minor since Minor had been placed with the NREFM. Once in a while he would ask to see Father more often. Minor was bonded to Father. If the NREFM adopted Minor and decided not to allow him visitation with Father, she believed "it would be a bit traumatic in the beginning."

The NREFM had known Minor since his birth. Minor told her that morning that he wanted to live with her. The NREFM believed that it was in Minor's best interest to be adopted by her because she gave him stability, had been with him a long time, and loved him. She did not believe Father provided a stable alternative. Minor's counsel noted that Minor said he wanted to stay with the NREFM as his permanent home. Father's counsel argued guardianship, as opposed to adoption, would be in the best interest of Minor.

The court found Minor adoptable. The court noted that with respect to the beneficial parent relationship exception, the burden shifted to Father, who had not presented any evidence. The court observed, nonetheless, that Father met the first prong of regular visitation: "So there is clearly some sort of a bond as related to visitation and contact." However, "[t]o the second prong, I have to consider if Dad's proven to me that he has established a benefit of maintaining the parent-child relationship outweighing the benefits of adoption. And I think what really bothers me about this is the fact that Dad's threats in his texts to the caregiver really undermine the stability of the caregiver relationship with the child . . . ."

Father's texts to the NREFM, attached to the information to the court filed on May 30, 2019, included messages in which he called her a "bitch," a "cunt," "a piece of shit," and "a fucking n[****]r." He also referred to the social worker as a "n[****]r cunt."

The court further noted of the texts: They are "pretty severe and harsh and vulgar and demeaning, and it would make anybody feel like they're walking on eggshells. It would threaten the stability. It could be one day that a caregiver in the same situation would feel like, enough of this. That would undermine the stability of the child in that home. Dad clearly is not acting as a parent when he does this, and he is not fulfilling any type of parental role. He does not have the child's best interest in mind at all when he does this. This is a contest between he and the caregiver. It's almost a scorched earth. He is seeking scorched earth in my opinion. Meaning, even if his son p[e]rishes, that's okay as along as the caregiver does not, in his mind, win."

The court ultimately found: "[T]here is a long history of the dad not parenting the child, and the child not being in Dad's care. So although there is some bond, it does not outweigh the stability and benefits the child would receive from adoption." The court terminated the parents' parental rights.

II. DISCUSSION

Father contends the court erred in declining to apply the beneficial parental relationship exception to termination of parental rights. We disagree.

Once reunification services have been terminated and a child has been found adoptable, "adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i), one such exception exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." A beneficial relationship is established if it "'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.'" (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "The parent has the burden of proving that termination would be detrimental to the child . . . ." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)

"'[T]he 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.' [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.)

"[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." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) "'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 a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' [Citation.]" (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)

"We determine whether there is substantial evidence to support the trial court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights . . . ." (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)

We acknowledge, as have the parties, that there is a split of authority with respect to the standard of review as applied to application of the beneficial parental relationship exception. Some courts have applied a "hybrid" standard of review, determining whether substantial evidence supports the question of whether a parent has maintained regular visitation and the existence of a beneficial-child relationship, but applying the abuse of discretion standard to the determination of whether a compelling reason exists for finding that termination would be detrimental to the minor. (In re E.T. (2018) 31 Cal.App.5th 68, 76; In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) We agree with the courts which have held that the appropriate standard of review is solely sufficiency of the evidence. (See, e.g., In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The standard of review is currently pending before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.

Here substantial evidence supports the court's determination that the beneficial parental relationship exception to termination of parental rights did not apply. CFS concedes that Father maintained regular and consistent visitation with Minor. The record amply supports the concession. Likewise, the record supports a determination that Father and Minor were well bonded with one another. Nonetheless, as the court noted, it is the parent's burden to establish application of the exception. Here, Father adduced no evidence at the section 366.26 hearing to support application of the exception; indeed, Father was not even present at the hearing.

Regardless, the instant dependency case had been pending for over five years when the juvenile court terminated Father's parental rights. Minor had been bounced back and forth between placements with Mother, Father, the PGM, and the NREFM over the course of those five years. Father had been given multiple chances to stabilize a placement for the well-being and the security of Minor but had failed to do so. At this juncture, Minor's security in a stabilized placement was the juvenile court's primary concern. (In re Casey D., supra, 70 Cal.App.4th at p. 51; In re Brandon C., supra, 71 Cal.App.4th at p. 1534, In re C.F., supra, 193 Cal.App.4th at p. 555.)

Sufficient evidence supported the court's determination that an adoptive placement with the NREFM would promote stability and security for Minor which outweighed his bond with Father. Here, the NREFM had known Minor from birth. She had become Minor's primary caregiver for "95% of his life." Indeed, whenever Minor's placement was changed, from Mother to Father to the PGM, the NREFM moved with him to continue offering her services as Minor's caregiver.

The NREFM was very attached to Minor but expressed concern over becoming Minor's legal guardian and prospective adoptive parent because she was not a blood relative. This reflects that the NREFM took Minor's permanent placement very seriously. Minor had been placed with the NREFM since April 1, 2018, more than a year before Father's parental rights were terminated. Minor was happy with NREFM. Minor had a great relationship with the NREFM; he considered her a "'mother' figure." They had developed a mutual attachment.

The social worker noted that Minor "appears to be securely attached to his [prospective] adoptive parent. This is evidenced by his seeking out his [prospective] adoptive parent for affection, approval[,] and reassurance during social interactions and for her guidance with obvious expectations that his needs and desires will be properly attended to and met." The social worker observed: "The [prospective] adoptive foster mother loves [Minor] and they both have a mutual relationship of love and trust." "[A]doption by his caregiver will allow [Minor] to remain with the family that he has been with most of his life and who is committed to his permanency." As the NREFM said: "'I have known [Minor] since the day he was born. We are bonded. [Minor] is my son, and I love him.'" The NEFRM wanted to adopt him: "'I want him to have a safe place to grow up and where he feels nurtured and loved.'"

Minor reported that he was happy and wished to remain living with the NREFM; he stated he wanted to be adopted by her. A Child Family Team Meeting "determined that [Minor] and [the NREFM] have a strong loving bond and it would be detrimental to remove [him] from her care." Minor told the NREFM the morning of the section 366.26 hearing that he wanted to live with her. The NREFM believed that it was in Minor's best interest to be adopted by her because she gave him stability, had been with him a long time, and loved him. She did not believe Father provided a stable alternative. Minor's counsel noted that Minor said he wanted to stay with the NREFM as his permanent home. Thus, substantial evidence supported the court's determination that placement in a secure, adoptive home with the NREFM outweighed Minor's bond with Father.

To the extent the California Supreme Court determines that the standard of review on appeal from a juvenile court's decision that the beneficial parental relationship exception to termination of parental rights is abuse of discretion, we also hold that the juvenile court acted within its discretion in not applying the exception. --------

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J. I concur: RAMIREZ

P. J.

RAPHAEL, J., Concurring.

I disagree with the majority opinion only insofar as it rejects the hybrid standard of review that was applied in In re Caden C. (2019) 34 Cal.App.5th 87, 109 and is currently before our Supreme Court in that case. (See Maj. opn., supra, at p. 19 fn. 7.)

The hybrid standard reviews for substantial evidence the first two prongs of the beneficial parental relationship exception (regular visitation and the existence of a beneficial parental relationship), but it applies abuse of discretion review to the third prong (balancing interests to determine whether the existence of a beneficial parental relationship presents a compelling reason for overriding the statutory preference for adoption.) This is consistent with typical appellate review of factual issues for substantial evidence and discretionary determinations for abuse of discretion.

I see no convincing reason to depart from the usual standards as to this issue. (See, e.g., In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [abuse of discretion standard applies to the third prong because it is a quintessentially discretionary decision rather than a factual issue].) As our division has noted in a different context, substantial evidence deals with evidentiary proof and abuse of discretion with legal principles; "the substantial evidence standard obviously has no application when the ruling was not based upon a finding of fact." (People v. Jackson (1992) 10 Cal.App.4th 13, 23.)

I otherwise agree with the majority's substantive analysis and conclusion.

RAPHAEL

J.


Summaries of

In re S.Y.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2020
E073327 (Cal. Ct. App. Jan. 13, 2020)
Case details for

In re S.Y.

Case Details

Full title:In re S.Y., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 13, 2020

Citations

E073327 (Cal. Ct. App. Jan. 13, 2020)