Filed 5/4/22 In re Kyle K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Fresno County. Kimberly J. Nystrom-Geist, Judge.

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Daniel C. appeals the juvenile court’s order terminating his parental rights to Kyle K. pursuant to Welfare and Institutions Code section 366.26.[1] He contends the juvenile court erred in finding that the parental-benefit exception to adoption did not apply and that it considered improper factors in making its determination. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Petition and Detention

Kyle K. was born in December 2019 with a positive toxicology screen for methamphetamine. The Fresno County Department of Social Services (the Department) filed a petition pursuant to section 300, subdivision (b), alleging that Heather K. (mother) had substance abuse and mental health problems that negatively affected her ability to provide Kyle K. with adequate care, supervision, and protection. The original petition listed Daniel C.[2] as the alleged father, but an amended petition identified a second alleged father. Upon discharge from the hospital, Kyle K. was placed in a licensed foster home, but a few days later he was placed with Krystal K. (maternal aunt) who lived in Tracy.

On January 7, 2020, at the detention hearing, the juvenile court ordered Kyle K. detained and a paternity test for Daniel C. The paternity test results revealed Daniel C. is Kyle K.’s biological father.[3]

Jurisdiction and Disposition

On March 10, 2020, at the combined jurisdiction and disposition hearing, the juvenile court ordered reasonable supervised visitation with father for a minimum of two times per week, for at least one hour each visit. The juvenile court continued the disposition hearing.

An addendum report, prepared for the disposition hearing, indicated father had a history of substance abuse and a criminal history dating back to 2003 for “possession of controlled substances, possession of controlled substances paraphernalia, and a DUI.” Father reported he continued to use controlled substances, but was willing to get sober for Kyle K. He admitted last using drugs in February 2020. The Department recommended father be denied reunification services.

On July 21, 2020, at the contested disposition hearing, the juvenile court found that father’s progress toward alleviating or mitigating the causes necessitating placement of Kyle K. in foster care had been “minimal.” The court ordered reasonable supervised visitation for father to occur twice a week and ordered him to participate in parenting classes, a substance abuse assessment with recommended treatment, a mental health evaluation with recommended treatment, and random drug testing.

Six-month Review

The six-month status review report indicated mother had not maintained contact with Kyle K. or the Department and had not completed any of her court-ordered services. In contrast, father had visited Kyle K. regularly. Father had been participating in video chat visits due to COVID-19 precautions and progressed to in-person supervised visits in September 2020. He visited twice a week, for about two hours. Maternal aunt supervised the visits and reported the visits were going well and that father was appropriate and loving toward Kyle K. However, father had not maintained contact with the Department, and it was unknown if he was participating in any reunification services. Kyle K. was still in placement with maternal aunt, but she was not willing to do a permanent plan for him. As a result, his paternal grandparents were seeking guardianship and were going through the resource family approval process. The Department recommended that reunification services be terminated for both parents and that a section 366.26 hearing be set. The six-month review hearing was continued to a contested, combined six-and 12-month review hearing.

Twelve-month Review

The 12-month status review report stated that Kyle K. was still in placement with maternal aunt and the paternal grandparents were still in the process of getting resource family approval. Maternal aunt was now willing to provide permanent placement if the paternal grandparents were not approved for placement. Mother had not maintained contact with the Department and had not been participating in reunification services. Although father had made himself more available after the last court hearing, his communication with the Department was still inconsistent. He began parenting classes in January 2021, but had not completed the mental health assessment, the substance abuse assessment, or the random drug testing. He was still visiting Kyle K. regularly, and maternal aunt reported the visits were going well. However, the Department was concerned with father’s sporadic communication and his lack of progress in court-ordered services. The Department recommended reunification services be terminated as to both parents and that a section 366.26 hearing be set.

On March 2, 2021, at the contested, combined six-and 12-month review hearing, father argued that his reunification services should be extended to the 18-month deadline. He said he enrolled in the parenting class late because it was full. He explained he was in the process of having mental health and drug assessments done but had not been participating in random drug testing because he thought it was part of the drug assessment. He acknowledged he was having difficulty communicating with the social worker by telephone but said communication improved after he began communicating through e-mail instead. The juvenile court terminated reunification services for both parents and set a section 366.26 hearing.

Section 366.26 Report

On April 7, 2021, the Department received a telephone call from the paternal grandmother asking if she was going to obtain placement of Kyle K. She was upset and stated she “[had] him all the time” because maternal aunt always called her to pick him up. The paternal grandmother was also concerned because maternal aunt took Kyle K. to Fresno to visit mother and father went with maternal aunt. The paternal grandmother reported that father was living in her home.

Father confirmed he was living at the paternal grandmother’s house and that maternal aunt dropped Kyle K. off for up to two weeks at a time while she was working. He said no one was trying to “bend the rules,” but that it was tough for maternal aunt because she had to work and was overwhelmed. The paternal grandmother was usually there to supervise father and Kyle K. He admitted he was still smoking marijuana recreationally and had used methamphetamine four or five months ago. The Department informed him that it would be facilitating a Child Family Team (CFT) meeting in light of the changed circumstances.

CFT Meeting

On April 13, 2021, the Department conducted a CFT meeting to discuss the unapproved liberal visits at the paternal grandmother’s home while father resided there. Maternal aunt admitted she dropped Kyle K. off for approximately one week at a time and knew father lived there on and off. The Department stated that giving father overnight visits was a “huge violation” of the court’s order and was cause for a placement change. The Department was also concerned because the paternal grandparent’s home was listed on the Megan’s Law website as the address of a registered sex offender—the paternal great grandfather—which maternal aunt knew about. The paternal grandmother stated that the paternal great grandfather did not live at or visit the home but acknowledged he was registered there. The Department was concerned about the relatives’ ability to protect Kyle K. and their inability to obey court orders. One of the social workers confirmed she approved unsupervised visits with the paternal grandparents, but not overnight visits. As a result, the Department stated it would not be moving forward with placement of Kyle K. at the paternal grandparent’s home.

The Department’s social worker asked maternal aunt if she was willing to provide a permanent plan for Kyle K., but maternal aunt stated she could not do so because she lived with her father who did not want Kyle K. in the home permanently. She was upset that the Department was changing Kyle K.’s placement. The Department reported that Kyle K. was generally adoptable due to his age, good health, and positive development and that it was going to submit a child available referral to locate a family that was willing and able to provide a permanent plan of adoption. It would then change placement when a family was located. The Department concluded maternal aunt had been unable to provide protection, safety, and stability for Kyle K. and would not be placing him with the paternal grandparents either. Maternal aunt was given a verbal 14-day notice of placement change and was informed the Department would now be supervising visits.

Placement Change

After the Department sent a child available referral, well over 20 families were interested in placement with the goal of adoption. On May 19, 2021, the Department’s social worker went to maternal aunt’s home and facilitated a placement change. Maternal aunt was cooperative and allowed the social worker to take Kyle K. He was not in any distress and slept on the way to his new placement. The new family was welcoming and nurturing, allowing him to explore and feel comfortable. He did not show any emotional strain or maladaptive behaviors.

Father’s Visitation History

Maternal aunt, who supervised the third-party visits from March 2020 to April 2021, reported father had been consistent with visitation. However, she was unable to provide any visitation narratives because she said she was never provided with narrative forms. After the Department informed the family that it would be taking over supervision of father’s visits, there was a delay in visitation because father did not return the visitation center’s phone calls. As a result, there were no visits between April and June 2021 and the Department was unable to observe any visits. The reported stated it was “unknown what the visits appear to be.” Father’s visits at the visitation center began the week of June 28, 2021.[4]

The Department’s Likelihood of Adoption Analysis

The Department reported that Kyle K. was “generally and specifically adoptable” due to his age, good physical health, and the identification of an adoptive home. He did not have any cognitive or developmental delays and had a “very likeable demeanor with an endearing character.” He presented as a happy child. His new care providers were meeting all of his needs and were committed to adopting him.

In assessing for adoptability, the Department assessed two areas. The first area addressed “the strength of relative bonds between the dependent child and ‘both parents and caretaker.’ ” (Boldface & italics omitted.) Four specific areas were evaluated—structure, nurturing, challenge, and engagement. The report again noted the Department was unable to observe any visits between father and Kyle K. because father delayed in responding to the visitation center’s telephone calls. However, it did observe Kyle K. with the prospective adoptive parents. In general, the prospective adoptive parents were appropriate with him, meeting his needs, and building a strong bond with him.

The second area of assessment addressed Kyle K.’s need for stability and continuity. The report stated that due to his young age, it was imperative that he develop a secure attachment to his primary care providers and the prospective adoptive parents displayed a “strong sense of bond” with him. Although, father had maintained visits with Kyle K. throughout family reunification, father failed to show he was able to safely parent Kyle K. and father’s visits remained supervised. The Department concluded Kyle K. needed and deserved continuity, stability, and permanency, and “it would not be detrimental to terminate parental rights as there [was] no significant relationship between Kyle [K.] and the biological parents.” It recommended a permanent plan of adoption.

Section 366.26 Hearing

Father’s Testimony

On October 4, 2021, at the contested section 366.26 hearing, father testified that from approximately November 2020 to April or May 2021 he had been participating in supervised third-party visits at his home. During that period, father visited Kyle K. every day of the week, except for weekends when he was with maternal aunt in Tracy. Between April or May 2021 and August 2021, father did not have any visits because he did not contact the visitation center and they took him off the visitation waitlist. In August 2021, father began visiting Kyle K. in Fresno every Thursday and Friday for one hour each day.

During visits, father said Kyle K. got “real excited” and called father “Daddy.” Kyle K. reached out for father and used “a really high pitch[ed] voice of, like, excitement.” Kyle K. climbed into father’s arms and “hop[ped] back” when father put him down. Kyle K. liked sitting on father’s lap and hanging onto him “like a little monkey.” Kyle K. was excited to see father every time. When father started visiting Kyle K. in Fresno only two times a week, Kyle K. appeared less excited than before because he was seeing father less.

During visits, father first checked Kyle K.’s diaper and changed him if needed. Father gave Kyle K. snacks like fresh fruit and crackers. They read books or played. Kyle K.’s favorite toy was the play kitchen. Father tried to teach Kyle K. with the help of books and blocks. Father attempted to teach Kyle K. to color with crayons but realized “he [was] not ready for that yet.” At the end of each visit, father had Kyle K. help clean up. Their activities depended on Kyle K.’s mood because sometimes he was tired.

On cross-examination father clarified that when Kyle K. was with him during the week at the paternal grandparent’s house, he was never alone with Kyle K. The paternal grandmother was present to supervise. Father also clarified that he and Kyle K. did not stay together all week, but that he went to his third-party visit and then went back to work. He said maternal aunt went over the third-party visitation guidelines with him, which she learned about from the Department’s social worker. He said the social worker approved the paternal grandparents as third-party supervisors in October 2020 and informed him of such during a telephone call. He admitted he spent the night with Kyle K. while at the paternal grandmother’s house, but either the paternal grandmother or maternal aunt took care of Kyle K. on those occasions. Father never provided Kyle K. day-to-day care or took him to any well-being appointments.

Rebuttal Testimony

The Department’s family reunification social worker testified on rebuttal. She denied telling father or maternal aunt that paternal grandmother could supervise third-party visits. She denied saying father could have unlimited visitation or overnight visits. When asked if father participated in reunification services she said, “He did some services. He attempted to.” His participation in services was “very minimal.”

The Juvenile Court’s Findings

Father’s counsel argued that the parental-benefit exception applied and that the court should select a different permanent plan other than adoption.

The juvenile court found the Department demonstrated by clear and convincing evidence that Kyle K. was adoptable and was likely to be adopted and went over the four areas of adoption assessment listed in the section 366.26 report—structure, nurturing, challenge, and engagement. The court examined each area individually. The court noted that although the Department had been unable to observe father’s visits, the court received evidence of father’s relationship with Kyle K. in the form of father’s testimony, which the court found credible.

The juvenile court next ruled on the applicability of the parental-benefit exception. In ruling, it stated as follows:

“The Department has demonstrated by clear and convincing evidence that Kyle [K.] is adoptable and will be adopted. The law requires under those circumstances that the Court shall terminate parental rights and order the child placed for adoption unless the Court finds a compelling reason to determine that it would be detrimental to the child due to one or more of the following circumstances. And the circumstances that both parents assert is commonly called the beneficial relationship. It is [section 366.26, subdivision (c)(1)(B)](i). The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

“The standard in general is set forth in the [In re] Autumn H. line of cases [(In re Autumn H. (1994) 27 Cal.App.4th 567)]. And that is whether or not the 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. 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 parents’ rights are not terminated. [¶] … [¶]

“[F]ather’s visits have been fairly consistent, not perfect and there were gaps—significant gaps in his visits, but he has met the first prong.

“Unlike the parents in In re S.B. [(2008) 164 Cal.App.4th], 289, Kyle [K.] has never been in [] father’s care. He has never been—had the relationship where he would look to [] father to meet his day-to-day needs, to see him regularly, to tend to him during the night, or to take a full role of a parent for him. What has been described is a friendly visit, a positive and fun play time as [father] described it, but not the level of relationship that rises to the beneficial relationship standard. There is no showing that Kyle [K.] would suffer from termination of his legal relationship with his parents. I am confident that the parents will suffer by that and will feel great emotional distress, but I do not have any evidence that Kyle [K.] will have any detriment at all, let alone the level of detriment that might be anticipated if a parent were to prove a beneficial relationship.” (Italics added.)

Accordingly, the juvenile court terminated parental rights and ordered Kyle K. to be placed for adoption.

On October 19, 2021, father filed a notice of appeal.

DISCUSSION

Father contends there was insufficient evidence for the juvenile court to determine whether the parental-benefit exception applied and that in analyzing whether the exception applied, it considered improper facts. We disagree.

I. Legal Principles

“The sole purpose of the section 366.26 hearing is to select and implement a permanent plan for the child after reunification efforts have failed.” (In re J.D. (2021) 70 Cal.App.5th 833, 851.) “At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care.” (In re S.B. (2008) 164 Cal.App.4th 289, 296.) “Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of the parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).” (Id. at p. 297.) “f the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan.” ([i]In re Caden C. (2021) 11 Cal.5th 614, 630–631 (Caden C.).)

One exception to adoption is the parental-benefit exception, which requires the parent to establish, by a preponderance of the evidence, “that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 629; see also § 366.26, subd. (c)(1)(B)(i).)

“The first element—regular visitation and contact—is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)

“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) “In other words, ‘[t]he parent must show that the child has a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship.’ ” (In re J.D., supra, 70 Cal.App.5th at p. 854.) “[T]he focus is the child.” (Caden C., at p. 632.) The court may consider “ ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’ ” (Ibid.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Ibid.) “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

“Concerning the third element—whether ‘termination would be detrimental to the child due to’ the relationship—the court must decide whether it would be harmful to the child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at p. 633.) The court must determine “how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life.” (Ibid.) “[T]he effects [on the child] might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet … a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental.” (Ibid.) “When the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633–634.) “When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s),” and it “should not look to whether the parent can provide a home for the child.” (Id. at p. 634.) “Even where it may never make sense to permit the child to live with the parent, termination may be detrimental.” (Ibid.) “[T]he section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver.” (Ibid.)

Moreover, “[a] parent’s continued struggles with the issues leading to the dependency are not a categorical bar to applying the exception.” (Caden C., supra, 11 Cal.5th at p. 637.) “[W]hen the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency.” (Ibid.) “The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency.” (Ibid.) Thus, “[p]arents need not show that they are ‘actively involved in maintaining their sobriety or complying substantially with their case plan’ [citation] to establish the exception.” (Ibid.) However, lack of progress is not irrelevant. “A parent’s struggles may mean that interaction between parent and child at least sometimes has a ‘ “negative” effect’ on the child.” (Ibid.) “Conversely, a parent who gains greater understanding of herself and her children’s needs through treatment may be in a better position to ensure that her interactions with the children have a ‘ “positive” … effect’ on them.” (Id. at pp. 637–638.) “In both scenarios, the parent’s struggles speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent.” (Id. at p. 638.) They “may also be relevant to the detriment from terminating parental rights.” (Ibid.)

On review, the first two elements are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) “In reviewing factual determinations for substantial evidence, a reviewing court should ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.’ [Citation.] The determinations should ‘be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’ ” (Id. at p. 640.) The third element is reviewed for abuse of discretion. (Ibid.) A court abuses its discretion only when it “ ‘has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)

II. There was Substantial Evidence to Find the Beneficial-parent Exception Inapplicable

Here, the juvenile court found by clear and convincing evidence that Kyle K. was adoptable, but it did not find a beneficial parent-child relationship existed between father and Kyle K., who had been removed when he was only two days old and had never lived with father. We turn to the three elements of the parental-benefit exception.

As to the first element—regular visitation and contact—the juvenile court found father had satisfied this first prong because his visits had been “fairly consistent.” The Department’s reports indicated father visited regularly and that visits were going well. Thus, we find there was substantial evidence supporting the juvenile court’s express finding.

In regard to the second element—whether the child would benefit from continuing the relationship with the parent—the evidence did not show that Kyle K. would benefit from continuing his relationship with father. “For the second element of the test, the juvenile court is required to examine the record to ascertain whether the parent has proven by a preponderance of the evidence that ‘the child has a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship.’ ” (In re B.D. (2021) 66 Cal.App.5th 1218, 1227; see also § 366.26, subd. (c)(1)(B)(i).) Although, the Department’s reports did not contain narratives regarding father’s relationship with Kyle K. because it was unable to observe any visits, the juvenile court received evidence of the relationship in the form of father’s testimony, which it found to be “credible and believable.”

Kyle K. was only two days old when dependency proceedings were instituted. By the time of the section 366.26 hearing, he was almost two years old and had never lived with either parent. He lived with maternal aunt for approximately 17 months and then with subsequent caregivers for approximately five months. His visits with father were limited to supervised visits a few times a week. Although father testified that he spent overnight visits with Kyle K. at the paternal grandmother’s home, he said either paternal grandmother or maternal aunt took care of Kyle K. on those occasions. Overall, father described visits that were positive and playful. He testified Kyle K. was excited at visits and reached out for him. Kyle K. sat on father’s lap and hung onto him. Father changed Kyle K.’s diaper, read to him, taught him, fed him healthy snacks, and played with him. Father responded to Kyle K.’s needs appropriately, and Kyle K. referred to father as “Daddy.”[5]

However, a parent must show that the relationship confers more than “some incidental benefit.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “ ‘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.’ ” (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) We find the record contained substantial evidence indicating Kyle K. would not benefit from a continued relationship with father.

Finally, as to the third element—whether termination of parental rights would be detrimental to the child—we conclude the juvenile court did not abuse its discretion when it found Kyle K. would not suffer detriment from terminating the relationship. A finding of detriment is based on the child’s best interest, and the juvenile “court must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home.” (Caden C., supra, 11 Cal.5th at p. 632.) Because father failed to show the existence of a beneficial relationship, it cannot be said Kyle K. would suffer detriment from terminating that relationship.

III. The Juvenile Court Did Not Consider Improper Factors in Ruling on the Applicability of the Parental-benefit Exception

We are also not persuaded by father’s remaining contentions that the juvenile court considered improper factors in ruling on the exception. First, father argues that the juvenile court improperly considered four factors—structure, nurturing, challenge, and engagement—in determining whether the exception applied. However, the record reflects the juvenile court considered those factors as they related to the adoptability assessment, not the application of parental-benefit exception.

Second, father contends the juvenile court erroneously considered whether father and Kyle K.’s relationship was parental in nature. Father took issue with the court’s statement that “Kyle [K.] has never been in [] father’s care. He has never been—had the relationship where he would look to [] father to meet his day-to-day needs, to see him regularly, to tend to him during the night, or to take a full role of a parent for him.”

In In re B.D., supra, 66 Cal.App.5th at page 1222, the appellate court reversed the juvenile court’s order terminating the parents’ parental rights because it found that the juvenile court considered improper factors in considering whether the parents had satisfied the second element of the parental-benefit exception—the existence of a beneficial relationship. Specifically, the appellate court found the juvenile court relied heavily on the parents’ continued substance abuse and whether the parents could occupy a parental role. (Id. at p. 1228.) There, the juvenile court expressly stated that “ ‘the relationship at issue must be parental .… The parents must show that they occupy a parental role .…’ ” (Id. at p. 1226.) The appellate court remanded and ordered the juvenile court to conduct a new section 366.26 hearing that complied with the dictates of Caden C., which only required parents to show that the child had “ ‘a substantial, positive, emotional attachment’ ” to the parent to prove the existence of a beneficial relationship. (In re B.D., at pp. 1230–1231.) Indeed, “Caden C. did not use the words ‘parental role’ in its analysis. In fact, our Supreme Court has never formulated the parental-benefit exception in terms of a ‘parental role.’ ” (In re L.A.-O. (2021) 73 Cal.App.5th 197, 210, fn. omitted.) In re B.D. is distinguishable because, here, the juvenile court never said father had to prove he occupied a parental role. Rather, the juvenile court was elaborating on the fact that Kyle K. had never been in father’s custody when describing their relationship, which the court was allowed to consider. (Caden C., supra, 11 Cal.5th at p. 632 [the court may consider “ ‘the portion of the child’s life spent in the parent’s custody’ ”].)

Third, father argues that the analysis in the section 366.26 report pertaining to the suitability of the foster home and the prospective adoptive parents’ relationship with Kyle K. invited the juvenile court to erroneously consider the suitability of the foster placement in determining whether to terminate father’s parental rights. Again, the record reflects the juvenile court made no mention of the suitability of the foster home when ruling on the application of the parental-benefit exception.

Lastly, father contends the juvenile court impermissibly considered father’s lack of progress in resolving the issues that led to the dependency. However, the record shows the juvenile court’s findings about mother’s[6] progress was made well after it ruled on the application of the parental-benefit exception and it made no mention of father’s progress during its assessment of the exception. In fact, it made no mention of father’s progress whatsoever.

Accordingly, we find no error in the juvenile court’s determination that the parental-benefit exception did not apply.

DISPOSITION

The juvenile court’s order terminating father’s parental rights is affirmed.

HILL, P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] Daniel C. resided in Fremont.

[3] The Department received the paternity results in February 2020, and Daniel C. (father) was elevated to biological father status in June 2020.

[4] The section 366.26 report was dated June 24, 2021, before father’s visits began at the visitation center. Thus, the Department was unable to observe visits in time for the writing of the report.

[5] Kyle K. also referred to the care provider as “daddy.”

[6] At the section 366.26 hearing, the juvenile court stated, “The extent of the mother’s progress toward alleviating or mitigating the causes necessitating placement in foster care has been none. The extent of the mother’s progress toward alleviating or mitigating the causes necessitating placement in foster care has been minimal.” The minute order attachment provides the same statement without a finding as to father.