Opinion
A159011
07-31-2020
In re L.B., a Person Coming Under the Juvenile Court Law. SOMONA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5448DEP)
J.B. (father) appeals from an order under Welfare and Institutions Code section 366.26 selecting adoption as the permanent plan for and terminating his parental rights to his now 12-year-old daughter L.B. He contends there was insufficient evidence reasonable services were provided, or alternatively, that his due process rights were violated when he failed to receive reasonable services and by the lack of a judicial finding of unfitness. Additionally, father contends the termination of his parental rights was improper under the beneficial-relationship exception to termination.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The order is affirmed.
BACKGROUND
In the spring of 2018, the Sonoma County Human Services Department (Department) filed a section 300 petition, alleging then nine-year-old L.B. was suffering or at substantial risk of suffering, serious emotional damage (§ 300, subd. (c)) after she attempted to jump out of a second-story window, threatened to "bash her head in with a fireplace poker," and threw the poker at mother's boyfriend. The Department further alleged several incidents of L.B. "acting ou[t] sexually" with her half-siblings while in father's home. The Department asserted the child needed to be detained "due to her emotional and behavioral needs," which were beyond the capacity of mother and father. L.B. was placed on a section 5150 hold and later diagnosed with "major depressive disorder, single episode, severe, with psychotic features" and prescribed medication. She reported hearing voices and that she had attempted to kill herself three or four times.
Mother is not a party to this appeal.
Mother and father did not live together. Mother lived with her boyfriend, and father lived with his wife (stepmother) and three other children. Mother and father shared "50/50 legal/physical custody" of L.B. The court declared L.B. a dependent of the court and found prima facie evidence L.B. "is suffering severe emotional damage" and continuation in the home was "contrary to the child's welfare." The court ordered the child detained and set the matter for a jurisdictional and dispositional hearing. In a settlement conference before that hearing, father's counsel "resolved" "visitation issues and how that's going to work going forward," and father's visitation was "progressing" unsupervised. L.B. was placed with her paternal step-grandmother (grandmother).
Jurisdiction/Disposition Hearing
In its jurisdiction/disposition report, the Department recommended reunification services. The report noted that in the spring of 2017, the Department had received a referral after L.B. asked her six-year-old half-brother to touch her vagina, had put her vagina on her four-year-old half-sister's vagina, and had touched her half-brother's genitals. As a consequence of these incidents, father was not seeking placement of L.B. " 'for safety reasons' " because she had "acted out sexually" toward her half-siblings. Father stated he was " 'thinking I could get therapy and take her every other Saturday.' " The social worker stated father "continued to deflect the current circumstances" on mother. Father, however, reported he had "done everything he can to try and help his daughter."
Father visited L.B. at grandmother's home every other weekend, and L.B. called him and stepmother "every other day." Father "appeared to be very confused regarding visitation," and the social worker explained he could not just visit L.B. at her grandparents' house "whenever he wants," and that both parents must be offered "an equal amount of time for visitation." Father reported "staying the night" at the grandparents' home on the weekend L.B. transitioned to living there and had subsequently visited with L.B. two other times. Father wanted L.B. placed back with mother so he could "go back to the 'norm' of having her every weekend or every other weekend."
The social worker spoke with L.B.'s therapist of over a year who had expressed "concerns" about father because he had " 'no filter' and says inappropriate things to and in front of [L.B.]" For example, father told L.B. that stepmother, grandmother, and her half-sibling were mad at her and stepmother did not want her in the house. Mother and father described L.B. "in a predominately negative way," calling her a " 'liar and defiant.' " In the year since L.B. had been attending therapy, her therapist had "been unable to do repair work" with stepmother because she was "not willing to work on moving forward." When asked about having his wife join the therapy sessions, father would "make[] up excuses every time." Stepmother told the social worker that after the sexual incident with L.B. and her half-siblings, she "was very angry and did not want [L.B.] in her home," and that she did not visit L.B. for several months "and when she did see her, she was quiet and they did not interact." Stepmother acknowledged she and father "could have reacted differently" but she was still "not ready to attend therapy."
The court found, by a preponderance of the evidence, L.B. came within section 300, subdivision (c), declared L.B. a dependent of the court, determined by clear and convincing evidence that L.B. "should be removed from her parents' physical custody" based on the fact that she "is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior and the child's emotional health requires removal." The court ordered reunification services and visitation "[w]ith the approval of the social worker" and continued the matter for a review hearing.
Father was advised of his right to file an appeal but did not do so.
Six-Month Hearing
In its six-month status review report, the Department recommended continued services. Grandmother could no longer keep L.B. Neither mother nor father requested placement, mother because of her boyfriend's continued drinking and father because his family was not " 'mentally ready' " for L.B. to return home.
Father "was slow to begin" services. He enrolled in co-parenting education classes, which had commenced only a week before the status review report was drafted. The Department referred father to therapy but he "never returned" the therapist's calls, and the referral was cancelled. After a subsequent referral, father attended his first appointment, but failed to appear for the next two appointments. As of the writing of the report, a new appointment had been scheduled. Father reported his wife and other children were in therapy but did not provide the Department with consent for the social worker or L.B.'s therapist to speak with their therapist "around how to support the family in [L.B.] returning home." Father reiterated L.B. could not be placed with him until his family was " 'mentally ready' " and "identified that he will not have [L.B.] share a room with his other children and without a bigger home, he will be unable to accommodate" her.
Unsupervised visitation occurred on the weekends due to parents' work schedule. Father visited L.B. every other weekend and spoke on the telephone with her "numerous times throughout the week."
The court found by a preponderance of the evidence "return of the child would create a substantial risk of detriment," by clear and convincing evidence "reasonable services" had been provided and father had made "minimal" progress "toward alleviating or mitigating the causes necessitating placement." The court continued reunification services and set the matter for a review hearing but made no order regarding visitation.
Father was advised of his right to file an appeal but did not do so.
12-month Review Hearing
In its 12-month status review report, the Department recommended termination of services and setting a section 366.26 hearing. L.B. had been placed in a foster home for a couple of months before moving to her maternal great uncle's home for another six months. L.B. was now on her fourth placement in an "out of county foster home." Mother reported she had "decided to not be in [L.B.'s] life" any longer. Father once again reported his children were "not 'mentally ready' and there [was] no room for [L.B.] in his home" and "[L.B.] could not be in his home."
Father "was not committed to being involved in Case Plan services." He had attended three meetings to discuss case plan services and progress but "did not show up" to the next two appointments. He had "stopped attending [therapy] after the last court hearing." He did enroll in and complete three sessions of a co-parenting class. While father was attending a "class about parenting after separation," he reported it was "redundant" and that he did not need "to work on communication" with mother. Father had been given "the opportunity . . . to provide documentation about the perception of his needs" but as of the writing of the April 2019 status report had not done so either in writing or verbally. Father also failed to request a new individual education plan for L.B. and had not reached out to L.B.'s therapist to "remain updated and aware of [L.B.'s] therapeutic goals."
Unsupervised visitation "continued to occur on the weekends," with father visiting every other weekend until January 2019. However, after an incident involving a L.B. "pulling a knife" on herself after father told her "mean things" about her mother," visitation was now supervised. In an April 2019 meeting with father and stepmother, stepmother reported visits were going well, but that they wanted the "children's therapist to remain separate." L.B.'s therapist testified that past joint sessions between L.B. and father were not "helpful" because of father's "destructive" comments to L.B., which had a "negative" impact on her. "He told [L.B.] that he was angry with her, grandma and grandpa were angry with her for what she did, and they didn't want her in his house." Prior to the 12-month hearing, L.B. had "pulled [a] knife" and "held it to herself" in front of her foster mother and "hurt [the foster mother's] puppy." In a therapy session, L.B. reported she had done so "because her father had made her angry at their meeting the day before and told her she wasn't supposed to say things or tell anybody the stuff that happens at home." After that incident, father's visits were then supervised but continued every other weekend. The social worker detailed the services. She had discussed nighttime parenting classes with father and therapy with his other children. But father still maintained they "weren't ready" and he never indicated "at any point" that his children were ready for a joint therapy session. He also had not signed the release to have the Department or L.B.'s therapist speak to the other children's therapist. The social worker did not think extending the case out "to the 18-month mark" would result in L.B. being "able to safely be maintained in father's home."
Father stated he tried to communicate with the Department but did so "poorly" using "the wrong words" and acknowledged he "said things that I probably shouldn't have." He admitted to "bad-mouthing" L.B.'s mother but stated "I'm not going to lie to my child. I just did it the wrong way." He now maintained L.B.'s half-siblings were "ready to receive [L.B.] back" into the home, and wanted them to get joint therapy. He further asserted that with continued reunification services, L.B. could return "[a]s soon as she's ready." When asked how long that might take, father replied "I mean, it's not going to be on me. It's going to be on the therapists and everybody here." His landlord had given him permission to convert a bedroom into two rooms so L.B. could have her own room, but he had not done that yet.
The placement worker advised that L.B. was now in "a concurrent placement" and was in the process of transitioning to an identified family and setting up "therapy and visitation over there as well."
The court found by a preponderance of the evidence "return of the child would create a substantial risk of detriment" and by clear and convincing evidence that reasonable services had been provided and the Department had complied with the case plan by "making reasonable efforts to make it possible for the child to be safely returned." The court then terminated services, finding there was not a "substantial probability, with the continuation of services to [mother] and [father], the child will be safely returned to [mother] and [father's] physical custody during the extended service period," and father had made "minimal" progress toward "alleviating or mitigating the causes necessitating placement. The court also found a permanent plan of adoption was appropriate, ordered visitation would "be based on [L.B.'s] needs, which may result in reduction of visitation," and continued the matter for further proceedings under section 366.26.
Father was advised of his right to seek extraordinary writ relief but did not do so. Section 366.26 Hearing
At the section 366.26 hearing, the court heard from grandmother, stepmother and father.
Grandmother testified that L.B. and father had lived with her for "approximately 10 to 11 months the . . . first year of her life," after which, L.B. lived with mother. At the beginning of the dependency proceedings, L.B. had stayed with her for approximately six months during which she had "an opportunity to observe [father's] parenting," including father reminding L.B. how to speak to adults and to do chores, and having conversations about homework. She described L.B. as a "daddy's girl." Father and L.B. had "always been really frank and open with each other." She had observed father—"less than five" times—saying "inappropriate" things to L.B. For example, when L.B. would ask him about why mother was not visiting more, father "would answer honestly instead of just having her ask her mother directly," saying " 'Because she's chosen her boyfriend over you.' "
Stepmother testified the "longest period" L.B. stayed with her and father "was a little bit over a month but not by much" in 2015, but she had observed father visiting L.B. over the years and "had a lot of opportunity to see [father] parenting [her]." He provided her with "structure at the house" giving her a bedtime, meal times, and having things "on schedule," and giving "consequence[s] for her actions, good or bad." Father and L.B. would go to the park or to a movie or talk about homework. She never saw anything she "thought was inappropriate."
Father testified that prior to the spring 2017 sexual incident involving the children, he would see L.B. every other weekend or as much as mother would allow. They would go to the park or to the movies or talk about homework. After the incident, he did not see her "for about a month," but then saw her "probably every other weekend to every weekend." His "last in-person visit was in June," and his last phone call had been "like three weeks" before the hearing. He was not sure why more visits had not occurred once L.B. moved to her current foster placement. He had texted L.B.'s old social worker "six or seven times." He texted her "a week after the last court date," when services had been terminated. He did not get a call "until about a month to probably about five and a half, six weeks ago" from the new social worker "saying that she apologized that she had the wrong phone number." In between that time, he had only texted the old social worker and did not try to contact the Department's main number. He described himself as "pretty straightforward and frank," stating he did not "lie to any of [his] kids" but admitting he did not "always go about it the right way." He stated he had asked "for therapy between all the kids" "probably . . . like four months, five months after this all started" at a team meeting. At one point, the judge asked, "So what are you asking for," and father replied, "I just want to be able to see my daughter."
After the testimony, the court stated that L.B. needed permanence but asked if there was a way to "foster" a connection with father. The Department responded they were "not in a position to be able to make promises," and that the potential adoptive parents were looking at L.B.'s best interests but did not think the foster parents were "foreclosing contact with the family." Indeed, counsel thought L.B. had "contact with the uncle and the other relatives" but L.B. was "at a point now where she doesn't want in-person visits," though she was "not opposed to phone contact." The court and counsel then had a long conversation about a potential meeting between father and L.B.'s foster parents, after father's counsel expressed frustration over father never having met them. Minor's counsel stated the foster parents were "looking at [L.B.'s] mental health" and that L.B. was "moving forward into permanency" and L.B. might not see a conversation between father and foster parents "the same way as an adult sees it." The court responded, "I can't let an 11-year-old drive the train entirely." The Department responded L.B. was not "driving the train" but rather, "what the case looks at, is what's in the best interest of [L.B.]" L.B. had "moved through multiple placements . . . , and she's looking for a forever home." Father's counsel responded, "I do agree with the Court that it does seem that over the last couple months, the visitation has been inappropriately delegated to the child, which is frankly the one thing we cannot do with visitation." Minor's counsel stated L.B. "has been a weekend visitor for many years with dad." But when she was at father's place "for a short amount of time and this incident took place, father kicked her out for over a year," and that at this point her "best interest[s] would be served by having stability" and it "would be detrimental to her to not have this go forward."
Prior to terminating parental rights, the court stated "At this point, I cannot make a finding that the child will benefit from continuing the parental relationship. [¶] I do believe that you have in the past occupied a parental role, but now that parental role, since the termination of your reunification services is that of a, I would say, a beneficial visitor versus a parent. [¶] The burden lies with the party raising the beneficial relationship exception. . . . Given the instability that [L.B.] has suffered which led to basically a psychotic break . . . I cannot say that you have met that burden by a preponderance of the evidence."
The court then found by clear and convincing evidence L.B. was likely to be adopted and that termination of parental rights would not be detrimental. The court terminated rights, freed L.B. for adoption and set the matter for an adoption review hearing.
Father appealed.
DISCUSSION
Forfeiture
On appeal, father raises a challenge to the sufficiency of the evidence to support the juvenile court's finding of reasonable reunification services—a challenge barred by the waiver rule, which ordinarily restricts us to a review of matters occurring since the last appealable order or judgment. (In re Janee J. (1999) 74 Cal.App.4th 198, 206; Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156 (Melinda K.) ["Generally, the findings made at each hearing—to the extent they are against a parent or legal guardian's interest in reunification—will form the basis of an adverse order which is immediately appealable."].)
The existence and adequacy of reasonable services were matters that could have been raised on appeal from the court's earlier orders, as those orders were immediately appealable. (In re Cicely L. (1994) 28 Cal.App.4th 1697, 1704-1705.) Having failed to appeal, he forfeited his right to subsequently challenge the substance of those orders. (Ibid. [" 'If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata.' [Citation.] [¶] 'An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.' "].)
Father's reliance on Melinda K., supra, 116 Cal.App.4th 1147 is misplaced. In that case, the mother challenged the court's finding at the six-month review hearing that reasonable services had been provided. (Id. at p. 1150.) The court held that "[b]ecause the juvenile court's order continuing reunification services was not adverse to mother's interest" she was "not an aggrieved party" and the challenged finding was therefore "not directly appealable." (Ibid.) The court concluded that such a finding could be reviewed by writ petition and exercised its discretion to treat the mother's appeal as such. (Id. at pp. 1150, 1156-1157.) Here, however, father, who was represented by counsel at all times, did not challenge—by writ or appeal—any prior order where the court made the findings he now challenges.
Indeed, Father did not seek writ relief after the court terminated reunification services and set the matter for a section 366.26 hearing. Pursuant to subdivision (l)(1) of section 366.26, "[a]ll court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247; In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.) Such orders may not be reviewed from a later appealable order. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1024 ["[T]he Legislature, by its enactment of section 366.26, subdivision (l), sought to outlaw review by appeal of all decisions made in conjunction with a setting order."].)
Accordingly, Father cannot belatedly claim here that the Department did not provide reasonable services or that he was not afforded adequate visitation. (In re Zeth S. (2003) 31 Cal.4th 396, 412-413.)
Due Process Violations
In an attempt to overcome forfeiture, father now couches his challenges to the court's reasonable services and visitation rulings as an overarching due process argument. Specifically, he asserts such an infringement occurred because the juvenile court never made a finding by clear and convincing evidence that he was "unfit" before terminating his parental rights and because the department failed to offer reasonable services, including family therapy and visitation.
" 'It is axiomatic that due process guarantees apply to dependency proceedings.' [Citations.] The United States Supreme Court recognizes the concept of 'due process' cannot be precisely defined. [Citation.] In deciding requirements of due process, the court evaluates three elements: the private interest at stake, the government's interest, and the risk the procedures used will lead to an erroneous decision. [Citations.]
"The private interest at stake in a dependency proceeding is enormous. A parent's interest in the companionship, care, custody and management of his or her children is a fundamental civil right. [Citation.] Children, too, have a compelling independent interest in belonging to their natural family. [Citation.] In addition, each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. [Citation.] The governmental interest in a child's welfare is significant. '[T]he welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.' [Citations.]
"In dependency proceedings, unless limited exceptions apply, a parent is provided with services designed to reunify the family within a statutory time period. [Citations.] The burden remains on the state to show return of the child to the parental home would create a substantial risk of detriment to the child. (§§ 366.21, subd. (f), 366.22, subd. (a).) If, after the state has made reasonable reunification efforts, the court finds there is not a substantial probability the child safely can be returned home, the court terminates reunification services and sets a permanency hearing under section 366.26. (§§ 366.21, subd. (g), 366.22, subd. (a).) Once family reunification is no longer the primary goal, the state interest requires the court to focus on the child's placement and well-being, rather than on the parent's challenge to custody. [Citation.] The focus of dependency proceedings shifts from the parents' interest in reunification to the child's interest in permanency and stability. [Citation.] By the time a permanency planning hearing has been set, the child's private interest in a safe, permanent placement outweighs the parent's interest in preserving a tenuous relationship with the child. [Citation.]
"The third element of due process analysis, the risk of erroneously terminating parental rights, is lessened by the juvenile court's prior findings and procedures. 'A finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute sufficient basis for termination of parental rights . . . .' [Citation.] The California Supreme Court held that section 366.26 met due process requirements because the 'precise and demanding substantive procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child and otherwise protect the legitimate interests of the parents.' (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256. . . .)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 222-224 (Dakota H.))
Here, father maintains "there was never a finding that [he] was unfit," or rather, as is terminology now, a finding of "detriment." (In re P.A. (2007) 155 Cal.App.4th 1197, 1211 (In re P.A.) ["California's dependency scheme no longer uses the term 'parental unfitness,' but instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child."].)
The record shows, however, that while the juvenile court did not use the exact words "detriment" or "unfitness," it nevertheless determined placement with father would have been detrimental to the child. At the dispositional hearing, the court found: "There is clear and convincing evidence that the child should be removed from her parents' physical custody based on the following: [¶] The child is suffering serious emotional damage, or is at a substantial risk of suffering serious emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior and the child's emotional health requires removal." (See Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1134 [court need not make the requisite detriment finding at the termination hearing; due process is satisfied when that finding is established at an earlier stage in the proceedings].)
Father maintains the court's finding that L.B. should be removed "from 'her parents' physical custody' " related to Mother, only, because "[a]t that time [L.B.] had been in Mother's custody, not Father's, and the only allegation against him was that he was unable to safely manage her in his home." This argument fails because, in addition to the juvenile court expressly referring to both parents, mother and father shared "50/50 legal/physical custody."
Father also contends he was never offered family therapy despite asking for it several times, and this too violated his due process rights. Even assuming this complaint can come within the bounds of a due process challenge, the record refutes father's claim that he was never offered family therapy. While father claims he told the social worker several times in September 2018 that he wanted family therapy, A review of the record shows, for example, that in September 2018, while father stated he wanted L.B. to have a session with her half-sister's therapist if L.B. was placed in Sonoma County, her half-brother's therapist recommended he "stay away from [L.B.]." And while father stated at the September 2019 12-month review hearing, that he would sign releases allowing the Department to talk with L.B.'s half-sibling's therapists, he had previously said he would not do so. And, in an April 2019 meeting, stepmother stated she and father wanted "the children's therapist to remain separate." Furthermore, the social worker had given father "the opportunity . . . to provide documentation about the perception of his needs," but as of the 12-month status review report, he had not provided anything, either in writing or verbally.
Father also contends the lack of visitation between the 12-month hearing and the section 366.26 hearing, "so impacted [his] due process rights" he was "denied the opportunity to establish consistent and regular visitation to prove the [beneficial-parental relationship] exception to termination." Again, even assuming his challenge to the court's prior visitation orders can be restyled as a due process claim, the record does not show a lack of due process.
Pursuant to section 366.21, subdivision (h), after reunification services are terminated the court "shall continue to permit the parent . . . to visit the child" pending the section 366.26 hearing "unless it finds that visitation would be detrimental to the child." In this case, the court did not make a detriment finding, but instead stated, "The parents are advised that following this hearing, visits with the child will be based on the child's needs, which may result in a reduction of visitation." Neither father nor his counsel objected to this order. Nor did father challenge it by way of a writ proceeding.
At the section 366.21 hearing, father claimed he sent L.B.'s old social worker a total of "six or seven" text messages inquiring about visitation. He sent the first two about a week after the 12-month status review hearing. At that point, L.B. was switching to her new foster placement. L.B.'s new social worker called him "about a month to probably five and a half, six weeks" before the section 366.26 hearing, apologizing and stating she had the wrong number for him. Father admitted he never attempted to call the main number for the Department or to contact the new social worker, himself. After the call from the new social worker, he received a call about the placement plan for L.B., and after that, he "kind of just left the visits alone figuring that's the way we were going I guess." Father did not offer any explanation why he had not had any further telephone visits with L.B. In the section 366.26 report, L.B.'s new social worker stated she had left voicemails with father on July 23 and August 12, but "did not receive a return telephone call." On September 16, she texted father, and at that point, he returned her call. She "spoke with him about scheduling a supervised visit as soon as possible." No addendum report was made, and the social worker did not testify at the section 366.26 hearing.
Regardless of why father did not visit L.B. between the 12-month hearing and the section 366.26 hearing, there was no violation of his due process rights. Once reunification services have been terminated, the state interest requires the court to focus on the child's placement and well-being. (Dakota H., supra, 132 Cal.App.4th at p. 223.) Therefore, "[b]y the time a permanency hearing has been set, the child's private interest in a safe, permanent placement outweighs the parent's interest in preserving a tenuous relationship with the child." (Ibid.; see In re D.B. (2013) 217 Cal.App.4th 1080, 1090 [parental visitation during post-reunification period—in contrast to visitation during the reunification period—"is governed by different statutes, which focus on permanency and stability for the child"].) Thus, at the time of the permanency planning hearing, L.B. and the state's interest in permanency outweighed father's interest in maintaining a relationship with L.B.
We consider whether the risk of erroneously terminating parental rights nevertheless requires us to find a due process violation on the record before us. (Dakota H., supra, 132 Cal.App.4th at p. 224.) We conclude it does not. A finding at a review hearing that the juvenile court " 'has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights.' " (Ibid.) As we have previously recited, father had the benefit of all the substantive and procedural protections that are in place before parental rights can be terminated. Further, the beneficial-parental exception does not focus solely on the period of time between termination of reunification services and termination of parental rights. Indeed, "[a]t the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.)
Additionally, "[a] parent's ability to file a section 388 petition provides an 'escape mechanism' that lessens the risk of an erroneous deprivation of the parent-child relationship in the event of a legitimate change in circumstance." (Dakota H., supra, 132 Cal.App.4th at p. 224.) Here, father could have filed a section 388 petition seeking a continuance of the permanency planning hearing in order to receive additional visitation prior to the court's termination decision. He did not do so.
Given all of the above, we conclude father's due process rights were not violated. Moreover, as we discuss below, nothing in the record suggests father would have prevailed in establishing the beneficial parent relationship exception, even had he had additional visitation during the period of time between the termination of reunification services and the termination of parental rights.
Father also takes issue with visitation during the prior reunification period, claiming he did not receive visitation for two months between the six-month and 12-month status review hearings. The record shows father initially had unsupervised visits with L.B. until the January 2019, after which visits were supervised. At that point, the Department attempted to arrange visits with father, but he failed to appear at the scheduled interviews with the social worker in January and February. After father was interviewed in March, supervised visitation was arranged in April and continued from June to the 12-month hearing. At that hearing, father testified but made no complaint of any problem visiting L.B. At the end of the hearing, when asked if there was "[a]nything else," neither father nor his counsel mentioned any problem with visitation. Thus, not only has any objection to visitation during this period been waived, but there is no basis for any claim father's due process rights were compromised. --------
Beneficial-Relationship Exception
Once the court determines adoption is likely, the burden shifts to the parent to show termination of parental rights would be detrimental under a section 366.26, subdivision (c)(1)(B) exception. (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).) We review a trial court's rejection of the beneficial-relationship exception for substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
To establish the beneficial-parental relationship exception, the parent must demonstrate the relationship will "promote[] 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) A juvenile 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." (Ibid.) A parent who has failed to reunify "may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Angel B., supra, 97 Cal.App.4th at p. 466.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (Ibid.) In determining if the parental relationship is beneficial and important, the court considers the following factors: the child's age, the portion of the child's life spent in the parent's custody, the interactions between the parent and the child, and the child's particular needs. (Id. at p. 467.)
In the instant case, L.B. was nine years old at the start of the dependency proceedings and 11 by the time of the 366.26 hearing. The record shows father had a checkered history in L.B.'s life. He "was not involved in [L.B.'s] life in early years," but in 2013 or 2014 he started "seeing her every other weekend." In 2017, L.B. started therapy for the sexual incident involving her half-siblings, and during that time period, father "would go months without seeing her." In December 2017, father started taking L.B. to therapy once a week. Beyond a brief period, L.B. had never stayed full time with father and she did not stay with him after the commencement of the dependency proceedings. Regarding father's interaction with L.B., grandmother stated L.B. was a "daddy's girl," and grandmother and stepmother had observed father "parenting" L.B. However, grandmother had also observed that father was sometimes "inappropriate" with L.B. because she would "ask him about her mother, [and] he would answer honestly."
The social worker's section 366.26 report also detailed that during the course of the dependency proceedings, "concerns" regarding father's interactions with L.B. "began to emerge." Father told L.B. " 'the CPS case is [mother's] fault and that if she only would get rid of her boyfriend, [L.B.] could move back in with [mother]"; he told L.B. it was up to her half-sibling's therapist whether she could live with him; and he told her that several members of her family were mad at her. After a January 2019 visit with father, L.B. returned to her foster home "in an agitated state and became dissociative after a short while," L.B. then "grabbed a steak knife and indicated she wanted to be hurt." It was later discovered father "had been continually having inappropriate conversations with [L.B.] and consistently speaking of . . . mother in an extremely negative manner." L.B. reported "this was extremely distressing to her and indicated she felt helpless to stop it."
These concerns were "consistent" with those raised by L.B.'s therapist directly, who observed the behavior in a joint session with L.B. and father. The therapist added father "often shames [L.B.], says inappropriate and demeaning things to and in front of her and describes her in a predominately negative way." L.B. had been with her current foster parents since June 2019. She "expressed both implicitly and explicitly that she wishes to be adopted by her current foster parents." She appeared "comfortable and is an integrated part of the family," and she sought out her foster parents "for comfort, nurturing and guidance."
On this record, the juvenile court's finding that the beneficial-relationship exception did not apply is supported by substantial evidence.
DISPOSITION
The order is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.