Filed 4/19/22 In re E.H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Philip Soto, Judge. Affirmed.

John P. McCurley for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Father E.H.[1] (Father) appeals the termination of his parental rights to now three-year-old E.H. Father contends that the social worker’s Welfare and Institutions Code section 366.26[2] report was inadequate as to his history of visitation, bond, and current relationship with E.H., such that the juvenile court could not make an informed decision to terminate his parental rights, citing new authority in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). Father also claims that the juvenile court erroneously relied on his ability to reunify when terminating his parental rights. Father requests that we reverse and remand for a new hearing under section 366.26, so that the juvenile court can make its decision with the guidance of Caden C. and a new section 366.26 report.

We disagree. Caden C., which discusses the parental-benefit exception, does not change the outcome. Father had the burden to raise the parental-benefit exception to the termination of his parental rights below, and he failed to do so. Father also asserts that because the section 366.26 report was not detailed enough under Caden C., a more detailed report may change the juvenile court’s decision from ordering adoption to ordering guardianship on remand. But because the juvenile court found E.H. adoptable and that reunification services had been terminated—findings to which Father does not object—it had a statutory obligation to order adoption as E.H.’s permanent plan. Accordingly, we have no reason to address the adequacy of the section 366.26 report under Caden C. Finally, the record does not support the contention that the juvenile court erroneously considered the possibility of reunification at the section 366.26 hearing.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of Los Angeles County Department of Children and Family Services (Department) in January 2019, shortly after E.H. was born, because E.H.’s mother (Mother) had an open case plan for two other children.

That same month, the Department filed a section 300 petition alleging that E.H. had been harmed or was at risk of harm under section 300, subdivisions (b)(1) and (j), due to Mother’s substance abuse. The juvenile court detained E.H. from Mother and ordered E.H. placed with Father, who was living with his sister and parents.

In February 2019, the Department amended the section 300 petition to add two counts under subdivision (b)(1) due to domestic violence between the parents and Father’s substance abuse, and one count under subdivision (j) related to both parents’ domestic violence.

In March 2019, the juvenile court sustained the allegations in the section 300 petition related to Mother’s substance abuse and the domestic violence allegations as to both parents. The court declared E.H. a dependent of the court and ordered the Department to provide family maintenance services to Father.

In May 2019, the juvenile court issued a warrant for the detention of E.H. from Father. The Department alleged that Father was under the influence in E.H.’s presence and had acted in a violent manner towards the relatives with whom he and E.H. lived. The juvenile court placed E.H. in the care of his paternal aunt, with whom E.H. was already living. That same month, E.H.’s paternal aunt reported that Father was visiting E.H. regularly. During the visits, Father played with E.H., fed him, and changed his diapers.

At the adjudication hearing in June 2019, the juvenile court removed E.H. from Father’s custody and ordered Father to receive reunification services. The court granted Father three, two-hour monitored visits per week with E.H.

In December of 2019, Father was still visiting E.H. regularly. E.H.’s aunt reported that initially Father was only visiting for 15 minutes per visit, but that he was now staying longer and helping with bathing, feeding, and changing E.H.

At the six-month review hearing in January 2020, the juvenile court found that Father had failed to make substantial progress with his reunification plan, terminated his reunification services, and set a section 366.26 hearing for May 2020 to select and implement a permanent plan for E.H.

In April 2020, the Department filed its section 366.26 report. Regarding Father’s visitation and bond with E.H., the report stated that as of June 2019, Father was granted a minimum of three visits per week for two hours with E.H., but that E.H.’s paternal aunt and caregiver stated that Father did not have a visitation schedule because he was welcome to visit whenever he wanted, that Father sometimes visited daily, and that the aunt had no concerns with the visits, which took place in her home and were monitored by her or E.H.’s grandmother. As to the likelihood of adoptability and proposed permanent plan, the report stated that E.H. perceives his caregivers as “his parental figures,” with whom he had lived since May 2019. The report recommended termination of parental rights and adoption by E.H.’s aunt and grandmother as E.H.’s permanent plan.

Two days after the Department filed its section 366.26 report, the juvenile court continued the section 366.26 hearing due to the COVID-19 pandemic emergency.

Between the filing of the section 366.26 report in April 2020 and the section 366.26 hearing in April 2021, the Department filed two status reports that described Father’s interactions with E.H. First, the May 2020 report noted that E.H.’s caregiver reported that Father was visiting “regularly,” and that Father would often sit and watch TV with E.H.” Second, the December 2020 report stated that caregiver reported that Father was visiting, but the visits were “not consistent.” When Father visited, he interacted with E.H., and E.H. “has a good attachment to him.” E.H reportedly “loves him and will gladly go with him.”

In March 2021, Father filed a section 388 petition requesting reinstatement of reunification services. In support, he attached documentation of his participating in reunification services from 2019. Father argued that his failure to complete the required services was due to a car accident that left him hospitalized in March 2021. He requested modification of the court’s January 2020 order terminating reunification services and more time to complete them.

That same month, E.H.’s caregiver reported that Father was not involved with E.H. “as much as he should [be] and his visits are scarce and short.” The social worker reported that Father called her from the hospital and said it was not the car accident that caused him to file the section 388 petition, but that he had to “take care of some things first” before he could take care of E.H., and that he wanted E.H.’s paternal aunt to continue to care for and adopt E.H.

The court held a hearing in April 2021 on Father’s 388 petition on the same day as, and immediately before, the section 366.26 hearing. During the section 388 hearing, Father’s counsel argued that Father should be given more time to complete reunification services. Counsel also stated that Father had been visiting E.H. twice a week, sometimes in person and sometimes by phone. The juvenile court rejected the request for more time, pointing out that Father had only six months to complete his reunification program due to E.H.’s age, and those six months had passed. The court denied the section 388 petition.

Turning to the section 366.26 hearing, Father’s counsel argued that there was not “much in the .26 report regarding the history of visitation or the bond between the father and child.” Counsel requested a continuance for an “appropriate .26 report,” noting the current one is “a year old.” Counsel did not object to adoptability nor argue that any exception to termination of parental rights applied. The juvenile court found E.H. adoptable, terminated parental rights, and ordered adoption as the permanent plan.

Father timely appealed the order terminating his parental rights. Mother did not appeal.

DISCUSSION

Father asks us to reverse the order terminating his parental rights and remand for a new hearing because the social worker’s section 366.26 report was inadequate under Caden C. Father asserts that this error was not harmless because, during closing argument, Father’s counsel “implied” that the parental-benefit exception to adoption could apply in this case if there were a more detailed and current section 366.26 report. Father also argues that the error was not harmless because if the social worker had provided the juvenile court with a more detailed section 366.26 report, then the court could have ordered guardianship as the permanent plan for E.H, rather than adoption. Father also claims that the social worker was biased towards adoption. Finally, Father argues that the juvenile court erred in considering his ability to reunify with E.H. at the section 366.26 hearing. For the reasons below, we reject all of Father’s arguments.

I. Standard of Review

We review a court’s order terminating parental rights for substantial evidence. Substantial evidence in this context means evidence from which a reasonable trier of fact could find by clear and convincing evidence that the child is likely to be adopted within a reasonable amount of time. (In re Mary C. (2020) 48 Cal.App.5th 793, 801–802 (Mary C.).) “[W]e consider the evidence in the whole record in determining whether substantial evidence supports the termination of parental rights, and specifically the finding of adoptability.” (Id. at p. 801.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

II. Remand Is Not Warranted Because Caden C. Does

Not Impact the Juvenile Court’s Termination of Father’s Parental Rights

A. The Adequacy of the Section 366.26 Report Is Irrelevant

Father asserts that Caden C. changed the legal landscape so that more is now required of the social worker’s section 366.26 hearing report than before, the section 366.26 report here was insufficient under Caden C., and thus remand is warranted. We decline to reach this question. Caden C. discusses the proper application of and standard of review for the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 629 [“We granted review to clarify the applicability of the parental-benefit exception . . . .”].) Caden C. is relevant only in determining whether the juvenile court erred in the application of the parental-benefit exception, which, as discussed below, Father waived by never raising the exception.

Moreover, Father is incorrect that a more detailed report under Caden C. would change the permanent plan from adoption to guardianship on remand. Father did not object to E.H.’s adoptability, a finding supported by substantial evidence. Accordingly, as detailed below, the juvenile court was required to order adoption in the absence of Father asserting an exception to adoptability. (Caden C., supra, 11 Cal.5th at pp. 630–631.)

B. Father Did Not Assert the Parental-Benefit Exception

Father urges us to reverse and remand for the juvenile court to hold a new section 366.26 hearing with Caden C. as guidance. He points to our decision in In re D.M. (2021) 71 Cal.App.5th 261 (D.M.) where we found the social worker’s reports inadequate and remanded for the court to apply Caden C. in the first instance. (D.M., supra, 71 Cal.App.5th at p. 271.)

The facts in D.M. are materially different from the facts here. Unlike in D.M., Father never asserted any statutory exception to the presumption of adoptability, let alone the parental-benefit exception, which was the central issue in Caden C. (Caden C., supra, 11 Cal.5th at p. 629.) In D.M. the parental-benefit exception was also central to the appeal, and we did not know how the juvenile court would have applied the exception if it had the benefit of Caden C. in making its ruling. Thus, remand was warranted. (D.M., supra, 71 Cal.App.5th at p. 271.)

In contrast, remanding here so that the juvenile court could consider Caden C. would not change the outcome. Father did not raise the parental-benefit exception below, and his failure to raise it waives the issue. (In re Erik P. (2002) 104 Cal.App.4th 395, 402–403 [parent waived statutory exception to termination of parental rights by failing to raise it before the juvenile court].) The juvenile court did not have a sua sponte duty to consider the applicability of the various statutory exceptions to the termination of parental rights. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) When Father found the social worker’s reports lacking, he had more options than to simply object to their sufficiency at the section 366.26 hearing. He had the opportunity to raise the parental-benefit exception at trial, and then to support it with evidence. (See In re Urayna L. (1999) 75 Cal.App.4th 883, 887 [“M]other’s contention that the report was not adequate is just the kind of issue which should be developed by putting on one’s own evidence or cross-examining the person who prepared the report”].)

Having waived the exception that Caden C. addressed, Father should not now have a second bite of the apple in asserting—for the first time on remand—that the parental-benefit exception applies. This opportunity is not warranted simply because Caden C. was decided a month after the juvenile court’s termination of his parental rights. Caden C. did not create a new exception. The parental-benefit exception is codified at section 366.26, subdivision (c)(1)(B)(i). (Caden C., supra, 11 Cal.5th at p. 625, fn. 2.) If a statutory exception applied, it was incumbent on Father to raise the exception during the section 366.26 hearing.[3] Once the case is at the section 366.26 permanency hearing stage of dependency proceedings, the need for stability and permanency in the child’s life is the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Remand is not warranted.

C. Father Did Not Challenge the Likelihood of Adoption

Father argues that if the social worker provided the juvenile court with “complete information” as to his visitation and bonding with E.H. in the section 366.26 report, “there is a reasonable probability that the court would have selected guardianship.”

We disagree. The outcome here would not change to guardianship on remand simply with a more detailed and recent section 366.26 report under Caden C. because Father did not challenge the substantial evidence that E.H. was adoptable.

The purpose of the section 366.26 hearing is to select a permanent plan for the child after the court has terminated reunification services for the parents. (D.M., supra, 71 Cal.App.5th at p. 268.) “ ‘ “At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.” ’ ” (Ibid.) “[T]he court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption.” (Caden C., supra, 11 Cal.5th at p. 630, italics added.) Having terminated reunification services and determined that E.H. was likely to be adopted, the juvenile court was required to order adoption for E.H., not guardianship, as his permanent plan. (See ibid.)

Moreover, Father does not argue that the juvenile court’s finding of adoptability is not supported by substantial evidence, and we find substantial evidence of adoptability in the record. E.H.’s caregivers expressed their interest in adoption. “[A] prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time . . . .” (Mary C., supra, 48 Cal.App.5th at p. 803.) In addition, a month before the section 366.26 hearing, Father told the social worker he wanted E.H.’s caregiver to adopt E.H. E.H., who had been living with his caregivers since he was at least a month old and had been in their custody since he was approximately five months old, perceived his caregivers as parental figures, was doing well in their care, had a strong bond with them, and there were no impediments to adoption.

Finally, Father argues that the social worker who prepared the section 366.26 report demonstrated a lack of objectivity by making statements in a meeting with E.H.’s caregivers favoring adoption. We disagree. Father takes issue with handwritten notes from the meeting relating to implementing the stated goal of adoption.[4] The meeting took place in October 2020, months after the social worker recommended adoption as the permanent plan in the section 366.26 report filed in April 2020. Moreover, it is not even clear from the handwritten notes that the allegedly biased statements were made by the social worker, as opposed to one of the two caregivers present at the meeting, who had expressed interest in adoption earlier on the worksheet, as they are notes without any attribution.

Even if we assumed for the purposes of argument that the social worker made statements biased towards adoption in October 2020, for the reasons explained above, the outcome on remand would be the same. Father did not challenge the juvenile court’s finding of likelihood of adoption, which is supported by substantial evidence, and there is no reason that a section 366.26 report with more positive details as to visitation and bond would result in a finding that guardianship was proper, given the statutory presumption of adoption upon a finding of adoptability. (See Caden C., supra, 11 Cal.5th at p. 630.)

For the forgoing reasons, remand is not warranted.

III. The Juvenile Court Did Not Erroneously Consider the Possibility of Reunification

Father argues that the juvenile court “erroneously considered the possibility of reunification in reaching its ultimate decision to terminate parental rights” when the court stated, “I appreciate that you had some extenuating circumstances, but I don’t see that giving you more time is going to change the outcome.”

While Father is correct that at the section 366.26 hearing “the question before the court is decidedly not whether the parent may resume custody of the child,” and relying upon inappropriate factors at the section 366.26 hearing can warrant reversal, reversal is not warranted on the record here. (Caden C., supra, 11 Cal.5th at p. 630; see D.M., supra, 71 Cal.App.5th at p. 271 [reversing where the court “considered factors which Caden C. has explained are inappropriate”].) Nothing in the record reflects that the juvenile court relied upon the possibility of reunification in terminating Father’s parental rights.

Over a year after terminating Father’s reunification services due to his failure to make progress, Father filed a section 388 petition requesting reinstatement of his reunification services, citing his car accident. The juvenile court held the section 388 hearing and the section 366.26 the same day. At the section 388 portion of the hearing, Father’s counsel argued that Father should be given more time to complete his reunification services due to the car accident. Then, during the section 366.26 portion of the hearing, Father’s counsel stated, “I would incorporate my argument from the 388 [hearing] regarding extraordinary circumstances here and ask that the court not terminate parental rights today, in that the father was participating in programs, he is visiting the child.” The juvenile court responded: “I appreciate that you had some extenuating circumstances, but I don’t see that giving you more time is going to change the outcome.” The court did not anywhere rely on Father’s failure to make progress on his reunification plan as a reason for terminating Father’s parental rights. The court was clearly responding to the request for more time for reunification services due to the car accident. Reversal is not warranted.

DISPOSITION

The order terminating parental rights is affirmed.

HARUTUNIAN, J.*

We concur:

GRIMES, Acting P. J.

STRATTON, J.

[1] Father and child are both named E.H.

[2] All subsequent statutory references are to the Welfare and Institutions Code.

[3] To be clear, Father does not appeal a determination by the juvenile court on the application of the parental-benefit exception. Rather, he concedes that it was never explicitly raised below (and therefore never addressed by the juvenile court), stating in his brief: “In closing argument, Father’s counsel implied that the parent-child bond exception to adoption could apply in this case. . . . Counsel noted that Father was visiting but that the social worker had provided inadequate information regarding the nature of the relationship between Father and E.H. and the specifics of visitation.”

A review of the transcript confirms that Father’s counsel never raised the exception below, upon which Father had the burden of proof. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343 [parent has burden of proving child would benefit from continued relationship such that exception applies].) The language Father’s counsel characterizes on appeal as “implying” the parental-benefit exception “could” apply with the addition of a better 366.26 report reads: “I don’t know that there is even a sufficient [.]26 report to go forward today regarding the core requirements in terms of addressing the current relationship between the parent and the child in order for the court to make a finding today – that today the appropriate outcome is to terminate father’s parental rights.” Next, counsel requested a continuance of the hearing for a more detailed and current report, and did not assert the parental-benefit exception explicitly (let alone refer to and/or attempt to meet Father’s burden of proof on the three elements of the exception). We disagree with Father’s assertion that the parental-benefit exception was raised by implication, and even if it had been, his burden was to go far beyond making a brief, ambiguous statement that failed to cite the code section or fairly notify the court and opposing counsel that the parental-benefit exception was being invoked.

[4] Father points to handwritten notes on a Department worksheet dated October 30, 2020, and titled “CFT Meeting Notes,” reflecting a meeting between the social worker and E.H.’s two caregivers. On the first page, the portion of the worksheet titled “Family Goal” is filled out as “I want to adopt E.H. . . .”

Father takes specific issue with handwritten answers following two typed questions: The worksheet asks, “[w]hat could get in the way of this plan working?” The handwritten response states, “[t]he judge ruling for the bio-parents or refusing to go w[ith] [a]doption.” The worksheet next asks, “[w]hat can the team do if this happens?” The written response states, “continue fighting.”

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.