Filed 7/13/22 In re F.T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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S.T. (father) and C.B. (mother), parents of the minor F.T., appeal from the juvenile court’s orders terminating their parental rights and freeing the minor for adoption. (Welf. & Inst. Code §§ 366.26, 395.)[1] Father claims the court erred when it found the beneficial parental relationship exception to adoption did not apply to him, and mother joins in his argument, “to the extent it inures to her benefit.” Finding no error, we will affirm the juvenile court’s orders.

BACKGROUND

The minor came to the attention of the Sacramento County Department of Child, Family and Adult Services (Department) when both he and mother tested positive for methamphetamine at his birth. Mother had reportedly been abusing illegal drugs for several years. Father, who also had a history of substance abuse, was present when the minor was born. He claimed mother had been sober for two years and he did not know she had not obtained prenatal care stating, “I don’t live with her so I can’t make sure that she goes to her appointments. That’s not my job.” The minor’s two older siblings had also tested positive for illegal substances at their births and were declared dependents of the juvenile court. The parents were provided with reunification services but failed to participate or to reunify with the siblings and their parental rights were eventually terminated as to those children.

The parents’ plan was for the minor to reside with father, who lived separately from mother. But that was not an option for the Department, due to father’s past failure to comply with reunification services and the fact that father’s roommate had a concerning criminal history. Instead, the minor was placed in the foster home already caring for his two siblings.

The Department filed a dependency petition pursuant to section 300, subdivisions (b) and (j), alleging mother’s failure to protect due to her untreated substance abuse issues, and abuse of the minor’s siblings due to the parents’ substance abuse and failure participate in court-ordered reunification services. The juvenile court ordered the minor detained and placed in foster care. The court ordered reunification services and supervised visitation for the parents.

The following month, the Department recommended bypass for both parents pursuant to section 361.5, subdivision (b)(10), (11), and (13), due to the parents’ untreated substance abuse issues, their failure to return the Department’s telephone calls or meet with the Department’s investigator, and their failure to reunify with the minor’s siblings resulting in termination of parental rights. Father had yet to seek placement of the minor (beyond the original “plan”) and had failed to make himself available to the Department for any purpose. By the time of the jurisdiction/disposition hearing, the parents had yet to meet with the Department despite multiple attempts by the social worker to reach them.

Prior to the contested jurisdiction hearing, father filed an opposition to the Department’s recommendation to bypass him for reunification services and remove the minor from his custody. He admitted he stopped drug testing after the minor was taken into protective custody and had not been engaged in counseling or other reunification services, but claimed he was prepared to submit to random drug testing and participate in services. He also acknowledged having had issues with substance abuse in the past but claimed he stopped using methamphetamine two years prior and since then had maintained long-term employment and stable housing.

The Department’s addendum report reiterated its previous recommendations, noting that although the parents stated their desire to reunify with the minor, they had failed to participate in reunification services. The parents had last drug tested the day prior to the filing of the dependency petition, with both testing positive for amphetamine, and had yet to make contact with the court investigator.

After hearing argument from counsel at the contested jurisdiction hearing, the juvenile court sustained the petition, removed the minor, bypassed the parents for reunification services, and set the matter for a section 366.26 hearing.

In its selection and implementation report, the Department recommended termination of parental rights. The minor was thriving emotionally and receiving appropriate care and nurturing from his caregiver. While the parents had been consistently visiting with the minor, they reportedly had not changed the circumstances which led to removal, and it was noted that the minor “does not appear to have a relationship with the parents such that termination of parental rights would cause significant emotional harm.”

Father testified at the section 366.26 hearing, opposing termination of his parental rights. He testified that he visited with the minor every week, during which he and the minor “play, smile, laugh,” and do “everything a father and son do.” He fed the minor, read to him, and changed the minor’s diapers during visits; he tried to make sure the minor was meeting his developmental milestones like rolling over and tracking with his eyes. Father stated it was in the minor’s best interest to continue the parent-child relationship because the minor “loves me” and “knows I’m dad.” He testified it would be a “huge mistake” to terminate parental rights because he and the minor had a very strong bond and “t would be almost inhumane to rip him from me.” Father further testified that he would be willing to do anything to maintain his parental rights, including living separately from mother.

At a section 366.26 hearing, the juvenile court “shall terminate parental rights and order the child placed for adoption” if it finds “by a clear and convincing standard, that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) Juvenile courts should decline to terminate parental rights only in “exceptional circumstances” where the parent “can establish termination would be detrimental to the child under one of the statutory exceptions.” ([i]In re D.P. (2022) 76 Cal.App.5th 153, 163.) One such exception is the beneficial parental relationship exception, which applies when “[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).) For the exception to apply, “the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (In re Caden C. (2021) 11 Cal.5th 614, 636-637 (Caden C.).) There are three elements needed to establish this exception: “(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (Id. at p. 631.)

We apply a mixed standard of review: “ ‘[A] substantial evidence standard of review applies to the first two elements’ and the third element, given it is a hybrid of factual determinations and discretionary balancing, is ‘properly reviewed for abuse of discretion.’ [Citation.] ‘But where, as with the parental-benefit exception, “the appellate court will be evaluating the factual basis for an exercise of discretion, there likely will be no practical difference in application of the two standards.” ’ ” (In re D.P., supra, 76 Cal.App.5th at p. 165.)

Parents must raise and establish the beneficial relationship exception. (Caden C., supra, 11 Cal.5th at pp. 636-637.) The exception requires a fact-intensive inquiry as “understanding the harm associated with severing the relationship is a subtle enterprise—sometimes depending on more than just how beneficial the relationship is.” (Id., at p. 634.) Consequently, failure to raise the exception at the hearing not only deprives “the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court’s determination is supported by substantial evidence.” (In re Erik P. (2002) 104 Cal.App.4th 395, 403.)

As we have set forth ante, father testified in support of his assertion that the beneficial parental relationship exception applied. The Department agreed with him that he regularly visited with the minor and that the minor appeared happy and engaged during those visits. On appeal, he argues his testimony showed the minor benefitted from the time they spent together and that the minor would be harmed by severance of their relationship. To demonstrate that the minor had a “substantial, positive, emotional attachment” to him, father relies primarily on the fact that he did “typical parenting things” during visits, such as changing the minor’s diapers and reading to and playing with the minor, and that he kept abreast of the minor’s developmental milestones and interacted with the minor so as to incorporate those activities. He observes the minor smiled when he saw father, and went to him easily. But these observations do not meet the test for application of the exception.

As father acknowledged, the minor, who was just five months old at the time of the hearing, had lived his entire young life with caregivers who wanted to adopt him and to whom he was attached. The minor never lived with father, and there was no evidence he formed a substantial bond with father despite the pleasant visits. While father changed the minor’s diapers and kept an eye on the minor’s developmental progress during their weekly visits, the caregivers met the minor’s physical, emotional, and psychological needs on a daily basis, took him to medical appointments, fed and clothed him, and provided a safe and stable environment for him. While the minor smiled at father and laughed and interacted with him during visits, those behaviors were no different from the behaviors the minor exhibited with his caregivers with whom he had reportedly developed a “healthy bond.” “Even frequent and loving contact is not sufficient to establish” the beneficial parental relationship exception “absent a significant, positive emotional attachment between parent and child.” (In re I.R. (2014) 226 Cal.App.4th 201, 213.) Here, there is simply no evidence of the latter.

Father’s claim that termination of the parent-child relationship would be detrimental to the minor is similarly unavailing. Father echoes his testimony in the juvenile court that the minor recognized and loved him and the two had a very strong bond such that it would be “inhumane to rip him from” his father. Although we recognize these circumstances are unfortunate for all involved, father points to no evidence, and we find nothing in the record, to suggest the minor suffered even the slightest emotional trauma when separating from father at the end of their visits. Even assuming a positive relationship between father and the minor, father did not demonstrate that losing the relationship would harm the minor “to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.)

The record makes plain that the juvenile court properly considered the minor’s age, the proportional amount of time he spent in parental and foster care, the importance of the minor’s relationship with father, and the detriment, if any, to the minor of losing that relationship. In doing so, the court concluded that the evidence did not support a finding of significant harm, particularly in light of the minor’s young age and the fact that he would obtain permanency in the home of the caregivers and his two siblings with whom he had lived since birth. This conclusion is amply supported by the record. The juvenile court did not err in finding the beneficial parental relationship exception to adoption did not apply.

DISPOSITION

The juvenile court’s orders are affirmed.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Renner, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.