Filed 4/12/17 In re Reilly S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re REILLY S. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

R.S. et al.,

Defendants and Appellants.
D071207


(Super. Ct. No. SJ13006A-B)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant R.S.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant Richard S.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger , Deputy County Counsel, for Plaintiff and Respondent.
Children's Legal Services of San Diego, Inc., and Susan Lake for Minors.
R.A. (Mother) and Richard S. (Father, together the parents) appeal from the juvenile court's judgment terminating parental rights to their sons Reilly and Richard (together the children) under Welfare and Institutions Code section 366.26. The parents contend that the juvenile court erred by concluding that the beneficial parental relationship exception to termination of parental rights did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We conclude that the juvenile court did not err, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father immigrated from the Philippines and are the parents of Reilly (born in 2012) and Richard (born in 2014). On September 5, 2014, after receiving an anonymous referral and visiting the parents' home, the San Diego County Health and Human Services Agency (the Agency) filed juvenile dependency petitions under section 300, subdivision (b) for both Reilly and Richard. Richard was three months old, and Reilly was two years old. As to both children, the petitions alleged that the home was in an unsafe condition because items such as "appliances, machine parts, tools and other heavy objects [were] piled all over the house[,] leaving very little room to maneuver and leaving heavy sharp items in places where they would easily fall over on the children"; additionally, "power tools and exposed power strips [were] within easy access to the children."
The juvenile court ordered that the children be detained outside of the home, and the children were placed together in a foster home, where they continue to reside with a foster parent who intends to adopt them.
After making a true finding on the petitions on November 7, 2014, the juvenile court on December 15, 2014, declared both children to be dependents of the court and ordered that the parents be provided with reunification services.
On August 12, 2015, the juvenile court continued the children as dependents of the court and directed that the parents be provided with another six months of reunification services. According to the Agency's reports prior to the hearing, the parents had been evicted from their residence and were given referrals to homeless shelters. The parents were "sporadically making it to their visitation," but nevertheless appeared to be bonded with the children.
In a report dated November 3, 2015, the Agency reported that the parents were living in a shed on the grounds of a local church. Mother had unsupervised visitation with the children, and Father's visits were supervised. Both parents were participating in services.
By the time of the Agency's January 5, 2016 report, the parents had moved out of the shed. Mother was living in a room in a house, and Father was living in a converted garage at a different residence. On February 19, 2016, a social worker visited Father's residence and found it to be inappropriately filled with items, suggesting that Father had resumed his hoarding behavior. On March 30, 3016, the Agency reported that Mother had violated the terms of visitation by allowing Father to be present during an unsupervised visit with the children.
Following a contested hearing, on April 6, 2016, the juvenile court terminated reunification services for both Mother and Father and scheduled a permanency planning hearing.
A permanency planning hearing was held on October 13 and October 20, 2016. At the permanency planning hearing, the social worker testified that Reilly and Richard had both been identified as being on the autism spectrum. As further detailed in the Agency's reports, because of the children's special needs, they "require supervision, structure, routine and a caregiver who places the children's needs before their own." The children's foster parent, who wanted to adopt them, was providing for their special needs. Specifically, the children were thriving in the foster parent's home where "they . . . follow a consistent schedule that allows them to develop structure and consistency," and "their speech, behaviors, and overall general wellbeing continues to improve." The children looked to the foster parent as their primary caregiver and called her " 'mom.' "
According to the social worker, during Mother's and Father's visitation with the children, the parents "were not able to manage or meet the children's needs" as they were not able to provide structure during the visits and were not able to redirect the children's behavior. Further, the social worker observed that Mother and Father "lack a significant parent[-]child relationship" to the children. Richard had been in the care of the foster parent since he was three months old, and Reilly had been in the care of the foster parent for approximately half his life, since he was two years old. The children were not distressed at leaving the visitations with their parents, did not respond to the parents' instructions during the visits, and spent much of their time playing with toys rather than interacting with the parents. In the opinion of the social worker, Richard and Reilly identified Mother and Father "more like a relative or close friend" and not as primary caregivers.
At the permanency planning hearing, the juvenile court found that the children were adoptable, terminated the parental rights of Mother and Father, and selected adoption as the permanent plan. The juvenile court specifically considered and rejected the applicability of the beneficial parental relationship exception to adoption and termination of parental rights. The juvenile court found that although both parents had regular visits with the children, and the children would benefit from continuing the relationship with their parents, in weighing the nature of the parent-child relationship against the benefits of adoption, there was no compelling reason to order an alternative to adoption. In explaining its ruling, the juvenile court stated that because the children were both on the autism spectrum, they need the stability and special attention that the adoptive placement would afford them, they had bonded with their caregiver who provides for their needs, and they separate easily from their parents, who do not occupy a parental role in their lives.
II.
DISCUSSION
Mother and Father both contend that the juvenile court erred in concluding that the beneficial relationship exception to adoption and termination of parental rights was not established. (§ 366.26, subd. (c)(1)(B)(i).)
A. Legal Standards for Termination of Parental Rights and Standard of Review
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) One of these statutory exceptions is the beneficial parental relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that "[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).) The burden is on the party seeking to establish the beneficial parental relationship exception to produce evidence establishing the requirements of the exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial parental relationship exception, the juvenile court may chose a permanent plan other than adoption if it finds the beneficial parental relationship to be "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, 189 Cal.App.4th at p. 1314.)
We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
B. The Juvenile Court Did Not Err in Concluding That Mother and Father Did Not Meet Their Burden to Establish the Beneficial Parental Relationship Exception to Adoption

As we have explained, there are two factual predicates to establishing the beneficial relationship exception, namely, that "[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).) Here, the juvenile court concluded that both factual predicates were established. Accordingly, in deciding the parents' challenge to the juvenile court's ruling, the sole issue before us is whether the juvenile court abused its discretion in determining that Mother and Father had not established "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); In re C.F., supra, 193 Cal.App.4th at p. 553.)
In making the determination of whether a beneficial parent relationship presents a compelling reason to order an alternative to adoption, the court applies a balancing test in which it 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court must consider the issue on a case-by-case basis, taking into account the many variables that can affect the parent-child relationship. (Id. at pp. 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532.) Among the variables to be considered in evaluating the benefits of a parental relationship are the child's age, the amount of time the child spent in the parent's care, whether the interactions are positive or negative, and whether the child has particular needs that the parent can satisfy. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) It is not enough for a parent to show frequent and loving contact during pleasant visits. (In re C.F., supra, 193 Cal.App.4th at p. 555.) More than incidental benefits from maintaining parental contact are required for this exception to apply. (Id. at pp. 558-559; In re Helen W. (2007) 150 Cal.App.4th 71, 79.)
1. Father's Challenge to the Balancing Test Set Forth in the Applicable Case Law Lacks Merit

Before considering whether the juvenile court abused its discretion in balancing the "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" (Autumn H., supra, 27 Cal.App.4th at p. 575), we pause to address an argument raised by Father. Specifically, Father contends that we should reject the balancing test set forth in Autumn H. and the authorities following it because Autumn H. was wrongly decided. Focusing on the statutory language requiring the juvenile court to find that "the child would benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(B)(i)) Father argues that the "inescapable plain meaning" of that phrase "is that if the relationship promotes or enhances the child's well-being, the exception applies and parental rights shall not be terminated." According to Father, Autumn H. ignored the plain meaning of the statute when it "added a balancing test which mandated the parent had to show that the benefit of maintaining the relationship with the child outweighed the advantages of adoption." Father argues that the balancing test set forth in Autumn H. "has made the plain language of section 366.26, subdivision (c)(1)(B)(i) meaningless because the statutory language can be instantaneously trumped by the balancing test."
We reject the argument. Under the statutory language, although the juvenile court may only apply the beneficial parental relationship exception if it finds that (1) the parents maintained regular visitation and (2) the child would benefit from continuing the relationship, it must also exercise its discretion to determine if "a compelling reason" exists to find termination would be detrimental to the child, as part of applying the statutory criteria. (§ 366.26, subd. (c)(1)(B).) "A juvenile court finding that the relationship is a 'compelling' reason for finding detriment to the child" is "a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Bailey J., supra, 189 Cal.App.4th at p. 1315.) Father's argument fails because it ignores the statutory language providing authority for the juvenile court to apply its discretion to determining whether a "compelling reason" exists to choose a permanent plan other than adoption, even when a parent has established that the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B).)
For over two decades Autumn H. and numerous other authorities have set forth the well-established rule that the parent seeking to establish the beneficial parental relationship to adoption must prove not only that it would benefit the child to continue the parental relationship, but that continuing the relationship would "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, italics added.) Father has provided us with no reason to depart from decades of existing case law.
2. The Juvenile Court Did Not Abuse Its Discretion in Concluding That Termination Would Not Be Detrimental to the Children

Under the balancing test set forth in Autumn H., we conclude that the juvenile court was within its discretion to conclude that Mother and Father did not establish a compelling reason for determining that termination of parental rights would be detrimental to the children.
Although it was undisputed that the children had a loving relationship with Mother and Father, the children did not look to their parents to meet the type of needs a parent would satisfy. Mother and Father had difficulty managing and parenting the children during the visits, did not provide structure during the visits, and the children did not look to them for support. The children generally separated easily from Mother and Father, and their primary attachment was to the foster parent, who had cared for them for over two years at the time of the permanency planning hearing.
Further, the children both have special needs as children on the autism spectrum, for whom stability, structure and continuity is especially important. The juvenile court could reasonably conclude that the children's special needs would be best addressed by allowing the children to be adopted by the foster parent whom they recognize as their primary caregiver and who has shown an ability to provide them with the type of structure that they require and under which they were thriving.
In sum, as to both parents, the beneficial parental relationship exception does not apply, as "[t]here is no evidence [the children] ha[ve] any needs only [the parents] can satisfy, or that [they] ha[ve] the type of emotional attachment to [the parents] that would cause [the children] to be greatly harmed if parental rights were terminated." (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) This record fails to show that the parents' relationship with the children was so beneficial to them that it outweighed the benefit they would gain from being adopted. (Autumn H., supra, 27 Cal.App.4th at p. 575.) We accordingly conclude there is no merit to Mother's and Father's claim that the beneficial parental relationship exception to adoption applies in this case.
DISPOSITION
The judgment terminating parental rights is affirmed.



HUFFMAN, Acting P. J.

WE CONCUR:




HALLER, J.




DATO, J.