Opinion
A158046
05-06-2020
In re H.H., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD173179)
In this dependency action, R.H. (Father) appeals the juvenile court's order denying his motion for a bonding study to consider the bond between Father and his son, H.H. (Minor). We affirm.
BACKGROUND
Our recitation of the background facts is not exhaustive, but focuses on facts relevant to this appeal.
In July 2017, the San Francisco Human Services Agency (Agency) filed a Welfare and Institutions Code section 300 petition on behalf of Minor, then four years old. Minor was detained in August and placed in foster care. According to initial Agency reports, Father had a substance abuse problem, the apartment he and Minor shared was cluttered and filthy, and he had failed to follow up on multiple referrals to services for Minor's developmental and behavioral delays. The Agency also reported that Father was "a very loving father" and "loves [Minor] to death." In September, Father submitted to an amended petition stating he has a substance abuse problem and suffers from anxiety and depression, all of which impair his ability to care for Minor. The juvenile court ordered reunification services.
All undesignated section references are to the Welfare and Institutions Code.
Father had been awarded full physical custody of Minor in a family court case. Minor's mother died during the dependency proceedings.
In March 2018, the Agency reported that Minor had recently been diagnosed as autistic and had developmental and language delays. Father had weekly supervised visits that he attended inconsistently, apparently due to problems with his phone and health issues. When he did attend visits, he was appropriate. Father was participating in individual therapy and outpatient drug treatment, but had left a residential program early and had multiple positive drug tests. In June, the juvenile court ordered six additional months of services.
In August 2018, the Agency reported that during supervised visits and therapeutic visits, Father was appropriate with Minor, attuned to Minor's needs, and able to comfort Minor and provide affection and attention. The Agency social worker noted, "No[] one is doubting how much [Father] loves and cares about [Minor], and vice-versa . . . ." However, Father's attendance continued to be inconsistent and when he missed visits, as he did many times, Minor became extremely upset and threw tantrums that could last hours. Father continued to struggle with substance abuse and left three residential treatment programs within the first week of the program.
In June 2019, after the twelve-month review hearing had been continued several times, the Agency filed another status report. Father had not made consistent progress with court-ordered services and continued to have positive drug tests. His supervised visits with Minor remained appropriate and affectionate, but he continued to miss multiple visits, greatly upsetting Minor. At the twelve-month review hearing, the court terminated reunification services and set a section 366.26 hearing for October.
In July 2019, Father filed a motion for a bonding study. Father argued a bonding study would help the court evaluate the nature and extent of the bond between Father and Minor, as relevant to the parental benefit exception to the termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). The motion included a declaration from Father's attorney identifying an available psychologist and describing the contemplated evaluation. The Agency filed an opposition arguing a bonding study was not required and the motion was untimely. Minor's counsel also opposed the motion. At the hearing, Father's counsel argued Minor's case presented unique issues because Minor was autistic, and autistic minors typically relate differently to adults and express themselves differently than neurotypical children do. The juvenile court denied the motion, stating at the hearing that it knew there was a bond between Father and Minor and that a bonding study would not help it determine "whether the bond would outweigh permanency."
DISCUSSION
I. Legal Background
"In a hearing to terminate parental rights in a dependency proceeding, the primary issue often is whether the parents can establish that the child would benefit from a continuing relationship with them and that termination of parental rights would therefore be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).) In attempting to establish or eliminate this exception to the preference for adoption, the parties or the court may require a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored." (In re S.R. (2009) 173 Cal.App.4th 864, 869.)
"There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339; accord, In re S.R., supra, 173 Cal.App.4th at p. 871 ["a bonding study is not statutorily mandated in a dependency proceeding"].) "The juvenile court's discretion to order a bonding study arises from Evidence Code section 730, which provides, in relevant part: 'When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court . . . .' Thus, the reason for appointment of an expert is that the expertise is, or may be, required to resolve issues in the case." (In re S.R., at p. 869.)
"The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.)
II. Analysis
Father first argues the juvenile court erroneously interpreted the parental benefit exception. Specifically, Father argues the court "incorrectly concluded that the issue it would determine at the section 366.26 hearing and that the bonding study could illuminate, was whether there was a bond between Father and [Minor]," when the issue also included whether Minor "will suffer 'detriment' if that bond is severed by the court."
Father points to the following statements by the juvenile court at the hearing: "I was the judge who terminated reunification services, and I remember that the social worker on the witness stand said there was a bond between [Minor] and his father. I don't need Dr. Molesworth [the expert identified in Father's motion] or anyone else to help me with that fact. There's a bond. And the question is really whether the bond that's there with a father who only one month prior to the reunification termination used drugs, the question is whether the bond would outweigh permanency. And that's not Dr. Molesworth's decision. It's my decision. He's not going to help me with that decision."
We disagree with Father that the juvenile court erroneously interpreted the parental benefit exception. "An exception to termination of parental rights applies where '[t]he parents 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).) . . . ' "[B]enefit from continuing the . . . relationship" ' means the parent-child relationship 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " (In re Collin E. (2018) 25 Cal.App.5th 647, 663.) The court correctly stated that, in light of the established bond between Father and Minor, the relevant issue would be "whether the bond would outweigh permanency." The court did not erroneously interpret the parental benefit exception.
Father next contends the court's denial of his motion for a bonding study was an abuse of discretion in light of the "evidence of a strong bond between Father and [Minor] coupled with [Minor]'s developmental challenges." Specifically, Father argues, "[a] bonding expert could have provided testimony regarding any unique detriment caused to [Minor] due to his autism in severing the father-son relationship." Although Father suggests that expert evidence regarding Father and Minor's bond was necessary for evaluation of the parental benefit exception, the juvenile court could reasonably conclude that it did not require expert evidence to resolve the matter, and that the numerous Agency reports in the record provided the court with sufficient information regarding the bond and any detriment that Minor would suffer if it were severed. We conclude, "under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study." (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.)
Because of this conclusion, we need not decide the Agency's alternative arguments that any error was harmless and that the motion was untimely.
DISPOSITION
The order is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.