Filed 4/23/21 In re S.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed in part, dismissed in part.

Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant M.S.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant C.B.

Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

C.B. appeals an order terminating his parental rights as to minor J.B. contending the trial court erred failing to apply the beneficial parent-child relationship exception to prevent adoption of J.B. by relative caregivers. M.S. (mother) appeals the order terminating her parental rights as to minor J.B., but only joined C.B.’s arguments regarding his relationship with J.B. We conclude substantial evidence supported the trial court’s findings and it did not abuse its discretion in concluding the beneficial parent-child relationship exception did not apply to prevent the preferred plan of adoption for J.B. Therefore, we affirm the order as to J.B.

Mother also appeals orders entered the same date terminating her parental rights as to minors S.S., L.S., and O.S. After examination of the record, mother’s appointed counsel filed a brief indicating there are no arguable issues as to S.S., L.S., and O.S. We deny the request to exercise our discretion to review the record for error and permit mother to file a separate supplemental brief on her own behalf. Because mother did not raise a claim of error or other defect with respect to her rights regarding S.S., L.S., and O.S., we dismiss her appeal of the orders entered regarding these children. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

II

BACKGROUND[1]

A

Mother had two prior dependency cases involving her older children and many prior referrals from the child abuse hotline. The family first came to the attention of the San Diego County Health and Human Services Agency (the Agency) in 2010 due to ongoing domestic violence involving her now deceased husband (husband). Due to the turbulent nature of the relationship between mother and husband, as well as mental health concerns and threats of suicide by both parents, mother’s three oldest children were removed from her care for many months before they were reunified in 2011.

A child abuse report was substantiated in 2012 for an incident in which husband threw or pushed one of the children during an argument with mother. Mother obtained, but did not serve, a restraining order against husband after the 2012 incident. She continued to have contact with husband and allowed him in the home, admitting she wanted to be with him.

Mother’s four oldest children were removed in 2013 by another county due to continued domestic violence between the parents. Mother did well with services until she and husband conceived their fifth child. The child was brought into protective custody shortly after birth due to continued safety concerns. The children were reunified with mother in 2015. Husband died in 2017.

B

J.B. was born in 2018 and is the youngest of mother’s six children. C.B. is the presumed father of J.B.

When mother gave birth to J.B., an immediate response referral was made to the Department of Children and Family Services (CFS) in another county. C.B. came to the hospital shortly after the child’s birth. Mother said C.B. used Methadone and Adderall and she did not want to return to him. He appeared manipulative and controlling and there was a concern he was a flight risk. When a social worker responded to the hospital, C.B. was present. The social worker interviewed the parents separately.

Mother said she left C.B. in a casino because he continued to gamble after she told him she was going into labor. She planned to move in with her sister-in-law. Mother left her cell phone with her sister-in-law because she was afraid C.B. would take it or track her down. Mother said she had no idea how C.B. tracked her down, but admitted she told him of her general location. She said she wanted to leave C.B. because he thought only about his needs, became critical of her when he ran out of his medications for attention deficit hyperactivity disorder (ADHD), and isolated her from her support system. Mother said C.B. had torn apart the recreational vehicle in which they lived because of a rat infestation. Mother tried to leave C.B. on multiple occasions, but always returned to him. She said she needed someone to stop her from calling C.B.

C.B. appeared nervous in the hospital interview and said he took medication to treat ADHD. He denied any criminal history, but said he was investigated for holding one of mother’s children at gunpoint. The interviewer thought C.B. was under the influence based on his jerky body movements and tangential thoughts. When asked if he would submit to a drug test, C.B. said he would test positive for amphetamines because of his medication. C.B. denied domestic violence with mother, but said an ex-girlfriend filed a restraining order against him 20 years earlier. C.B. said they lived in a recreational vehicle parked outside of his parent’s home. C.B. admitted he tore things out of the recreational vehicle. He said he smelled a dead mouse and was trying to find it. He said he missed the child’s birth due to a miscommunication with mother, but got a ride to the hospital from a friend. He planned to take mother and the child back to live with the rest of the family in their recreational vehicle.

Law enforcement was called because mother said she did not want C.B. present. Mother told a deputy sheriff that C.B. was manipulative and controlling. She said she placed her other children with Safe Families for Children because C.B. was emotionally abusive toward them. Mother told the deputy that C.B. trashed the recreational vehicle when he got out of control. She said he isolates her and takes away her cell phone and car keys. She also said C.B. took her children’s survivor benefits to gamble. She expressed concern for her children’s safety around C.B. When the deputy told C.B. mother did not want him there, C.B. acted surprised and hurt.

After investigators left the hospital, medical staff noticed the newborn child at the edge of the bed near mother’s feet while she was “completely knocked out.” When mother was confronted about placing the child in a dangerous situation, she pushed the child’s care to the nursing staff.

The other children were placed with the Safe Families for Children program because mother said she had a high-risk pregnancy and needed respite care. The children had lice and appeared neglected as they were dirty and underfed. It was suspected that mother lied about the high-risk pregnancy because she gambled with C.B. at casinos on a regular basis. One of the children reported C.B. was very mean and had the female minors give him massages. Mother placed the children with Safe Families three times since her last dependency case due to her lifestyle and instability.[2]

C

CFS filed petitions on behalf of all the children and they were placed in foster care homes.[3] J.B.’s petition alleged several counts pursuant to Welfare and Institutions Code,[4] section 300, subdivision (b) including mother’s history of substance abuse, C.B.’s substance abuse issues, mental health issues of both parents that impaired their ability to provide safe and adequate care for J.B. if left untreated, the failure of mother to provide safe and adequate shelter free of vermin, the engagement of mother and C.B. in a relationship marked by domestic violence that placed J.B. at risk of severe harm, and C.B.’s unresolved gambling addiction that impacted his ability to provide safe and stable care for J.B. The children reported mother does not buy them clothing because C.B. takes money from their father’s survivor benefits.

At the detention hearing, the court made prima facia findings on the allegations and detained all children from the parents. C.B. tested positive for amphetamines in July 2018. Mother and C.B. failed to appear for a random drug test in August 2018.

A social worker visited the property where the family lived. The area around the recreational vehicle contained hazardous conditions, including electrical cords near water. Mother and C.B. mismanaged their resources by gambling with money provided for the children as death benefits for housing, food, and clothing. The report expressed concern that even though mother had two prior dependency cases involving domestic violence and substance abuse and completed her services, she was again in a situation requiring more help and was making poor decisions. The social worker determined placement with mother and C.B. would be detrimental to the children.

One child disclosed that mother and C.B. fought a lot and when they did so they pushed and hit each other and stole each other’s phones. The child said mother tried to stop C.B. from doing mean things to the children like spanking. Another child said C.B. stole money from mother’s purse to gamble. The child said mother would get mad and say the money was for the children’s lunch.

Mother acknowledged her prior dependency cases, but minimized the domestic violence involving her deceased husband saying it was a result of her husband’s substance abuse. Mother also minimized the issues giving rise to this dependency matter. She said she and C.B. had a disagreement after J.B.’s birth and a nurse accused C.B. of being controlling. Mother denied domestic violence between herself and C.B. She denied C.B. had a problem taking money. She claimed her comments about C.B. taking her money were made when she was pregnant, hormonal, and exhausted.

After a mediation, the court found true allegations under section 300, subdivision (b)(1) that there was a substantial risk J.B. would suffer serious physical harm or illness by the inability of the parents to provide regular care for the child based on certain amended allegations and further found true allegations that J.B.’s siblings had been abused or neglected pursuant to section 300, subdivision (j) on two prior occasions. The court found all the minors came within section 300, subdivisions (b) and (j), and declared them dependents.

The parents agreed to reunification services and to transfer the matter to San Diego County. C.B. agreed to participate in domestic violence treatment, individual counseling to address gambling, on-demand testing twice a month, and conjoint counseling for parenting. The parents agreed to place all six children with a relative in San Diego County with supervised visits three times per week.

D

1

At the request of the parties, the matter was transferred to San Diego in January 2019. All of the children resided with C.B.’s parents (grandparents), whose home was near where the recreational vehicle was parked.

Mother and C.B. visited the children at the grandparent’s home. However, mother said their schedule varied due to C.B.’s business working as a mechanic and fixing cell phones.

C.B. did not accept the allegations and did not believe he needed treatment for domestic violence. He said he had been working with a teacher to address domestic violence and gambling issues. He said he was prescribed medication for ADHD. When asked who prescribed the medication, C.B. told the social worker to review his existing records. C.B. felt the social worker was wasting his time by having him repeat information.

In March 2019, there were some concerns with J.B.’s development of fine motor and problem solving. There were also some concerns regarding the child’s eating or sleeping, toileting, and extreme and/or lack of emotions. A referral was made for occupation therapy. The child appeared bonded with the grandmother/caregiver.

A social worker visited the property again in April 2019. The social worker found the home in a deplorable condition that was not appropriate or safe for children. Mother and C.B. said the property had experienced flooding, which caused damage to some of their belongings. They agreed the home was not yet fit for the children to return. Additionally, C.B. and grandfather did not agree about whether C.B. and mother were legally allowed to keep their recreational vehicle on the property. C.B. said they were not “technically” living on his parents’ property. Grandfather said he had been fined thousands of dollars due to the excessive amounts of garbage, cars, and other items C.B. stored on the property.

Mother attended domestic violence sessions and had some negative drug tests, but she also failed to test on some occasions. C.B. started domestic violence classes with an approved provider. He said he had completed nearly six months of domestic violence classes with another provider related to violating his ex-wife’s protective order. According to the former provider, the program was for stalking behaviors. The new provider said C.B. denied all domestic violence and was in denial about many things.

C.B. missed several drug tests and tested positive on one occasion for methamphetamine, amphetamine, and alcohol. He attributed positive tests for methamphetamine to his medication. However, he still did not agree to release his medical records for verification of his diagnosis and treatment despite repeated requests. Instead, he provided a label for a prescription for five milligrams of methamphetamine. The label was not attached to a bottle and had no legible date.

Mother and C.B. participated in supervised visitation with the children, mostly in the grandparents’ home. There was a level of animosity between the adults when the parents visited the children. One of the children reported hearing the caregivers and C.B. arguing during a visit. Mother expressed difficulties bonding with J.B. because she was afraid of getting attached to the child and then losing the child to adoption.

Mother denied domestic violence when she was in the presence of C.B. However, during a phone call when she was alone, mother told a social worker, “it’s a miracle that I’m even allowed to talk to you.” She said C.B. made her go with him to his classes and sit in the car. She described her relationship with C.B. as worse than her relationship with her deceased husband. She described being under “controlling looming anger” with C.B. When asked why she stayed, she said she had no resources and was isolated. She also said she hoped he would change.

C.B. expressed great frustration with the case and felt his privacy was being violated. He said mother had a lying problem. He denied taking her bank card or phone and denied he prevented her from getting a job. He also did not understand why testing positive for high levels of methamphetamine was problematic since he claimed he had a prescription.

In May 2019, the San Diego County Health and Human Services Agency petitioned to remove J.B. and the other children from their placement with the grandparents after C.B. and Mother engaged in a physical altercation with the grandparents during a visitation. A verbal argument escalated into a physical altercation between C.B. and grandfather and between mother and grandmother. J.B. was in mother’s arms during part of the incident. The sheriff’s deputy who responded to the call determined there was mutual combat between the four adults. The Agency rescinded the grandparents’ home approval. J.B. was detained in a foster home separate from the other children.

2

C.B.’s brother and sister-in-law offered to care for J.B. The court ordered all relatives to be evaluated. C.B. asked that J.B. not be placed with his brother’s family without a hearing and expressed concern about protecting the child from the grandparents.

The Agency received emergency clearance to place J.B. with the paternal uncle and aunt. The aunt and uncle reported having a strong bond with J.B. and missed seeing the child after removal from the grandparents. They also said they provided financial support for C.B. over the years, even after they let him go as an employee of their company and he was caught stealing items from the company. The juvenile court ordered J.B. placed in the approved relative home of the aunt and uncle.

3

Although mother received positive feedback regarding her visits with the children, the Agency did not support her request for unsupervised visits. The Agency had concerns that mother could not maintain boundaries with C.B. and that she was not telling the truth.

C.B. acknowledged he did not let mother go to her former husband’s funeral and said he should have let mother decide for herself. C.B. said he was no longer taking medication. However, when he was asked to drug-test he made excuses. He said he could not provide a specimen at first, then a tester was not available, and/or the testing location closed early. The Agency was concerned that C.B. was abusing illegal drugs based on his behavior of agreeing to drug test, but giving excuses for why he did not complete the tests. The Agency also expressed concern that C.B. was not addressing issues of power and control in his relationship with mother.

C.B. attended group meetings while mother sat in the car. C.B.’s therapist stated C.B. minimized the issues in the child welfare case and said it was fabricated. The therapist did not know if C.B. would ever have introspection and expressed doubt C.B. could make the necessary changes. He suspected C.B. used drugs or had some mental health issues.

In July 2019, a laboratory collection specialist observed C.B. attempting to cheat on a drug test by using a prosthetic device to produce urine. The staff member took an oral swab, which tested positive for methamphetamine and amphetamine. C.B. said he had stopped taking the medication, but used it as needed for stressful days. He did not follow through with a medication evaluation.

4

The children’s visits with mother and C.B. were inconsistent and the parents were late on several occasions.

In August 2019, mother arrived at the visitation center asking staff to call the police. She reported that she and C.B. got into a verbal altercation on the way to the visit. When Mother tried to get out of the truck, C.B. made a U-turn and tried to close the door. At some point, C.B.’s elbow hit mother in the chest and mother’s phone was thrown out of the window. Staff at the visitation center thought C.B. appeared to be under the influence. They canceled the visit and asked the parents to leave. This incident was upsetting to the children.

Thereafter, C.B. and mother visited J.B. separately. Mother said she planned to leave C.B. after the incident and she thought he had a drug issue. Within days, however, she reported C.B. was kissing up to her and contacting the older children on their cell phones to ask about mother. Mother was “willing to meet him halfway.”

The visits were canceled for both parents in September 2019 by the visitation center due to too many late arrivals for visits, missed visits, and noncompliance with visitation rules.

Supervised visitation restarted in October 2019 at a different location, with mother visiting the older children on one day and mother and C.B. individually visiting J.B. on another day. Mother and C.B. lived in a tent or yurt-like dwelling after being evicted from C.B.’s father’s property where they parked the recreational vehicle.

5

C.B. did not meet his reunification service goals by mid-October 2019. He was not active with his case plan and continued to deny he had problems he needed to address. C.B. did not accept counseling or attend consistently. C.B. asked for more visitation and then commented, “Because I’m getting my kids back like it or not.”

C.B. attended only one domestic violence group session per month and when he attended, his therapist said “he [was] always in chaos” and could not stay for the whole session. The therapist commented, “There’s a parenting issue, he can’t even take care of himself.” C.B. lacked insight and continued to believe the case was part of a conspiracy against him. The provider thought C.B. had a problem with crystal methamphetamine or a mental illness. By the end of October, the counselor found him to be a little more manageable in group sessions. C.B. still did not admit to domestic violence, but the counselor hoped C.B. was no longer using drugs.

As of November 2019, J.B. was happy and content in the placement with paternal uncle and aunt as the only child in the home. A nanny took the child on outings and provided opportunities for stimulation. A court appointed special advocate observed J.B. “lighting up” at the sight of the caregivers and they were willing to adopt J.B.

During this time, mother continued to minimize the existence of domestic violence in her relationship with C.B. and blamed the Agency, the social worker, C.B.’s parents, and C.B.’s psychologist for her situation. Other women in group classes believed mother was picking C.B. over her children. C.B. said he completed a medication evaluation in November 2019, but failed to provide documentation. C.B. did not drug test as requested by the social worker saying he did not get the messages or was otherwise unable to comply. He eventually completed a test in December 2019 that was consistent with alcohol consumption.

6

The agency recommended a Welfare and Institutions Code section 366.26 hearing to implement a permanent plan for J.B. and the other children.

By the end of December 2019, C.B.’s group facilitator said C.B. was still not accepting responsibility for what occurred between C.B. and mother and he had no insight. C.B. blamed others for his actions. C.B. was regularly attending classes, had gained weight, and seemed more focused in group, suggesting he was not using drugs at the time.

Mother and C.B. showed up at a medical appointment for J.B. and created an uncomfortable situation. Law enforcement was called to keep the peace and prevent the situation from escalating. Mother requested that J.B. receive only one vaccine rather than the full set the child was scheduled to receive. A few days later, mother and C.B. were seen driving back and forth in front of J.B.’s caregivers’ home.

7

The Agency recommended termination of services in January 2020. Mother asked the court to return all minors or, alternatively, for an extension of services because mother substantially complied with her case plan. C.B. asked the court to return J.B. to his care or, alternatively, that reasonable services were not provided or to extend services.

A social worker assigned to the case since February 2019 testified. The social worker did not believe the Agency had sufficient documentation C.B. had been prescribed medication, and there was no medical justification for his positive tests for methamphetamine.

Between July and August 2019, C.B. had six visits with the children. C.B. responded appropriately to the children’s verbal and nonverbal signals, put their needs ahead of his own, and the children engaged and communicated with C.B. After the visits were suspended in September 2019, C.B.’s visits with J.B. were supervised by the Agency one time per week for one hour and he requested additional visitation. The visits were generally positive. C.B. generally engaged with J.B., often playing on the ground with the child, running around, and engaging with toys. J.B. went to C.B. for comfort and hugged C.B.’s leg. C.B. told J.B., “I love you.” J.B. cried at one visit when handed back to the social worker.

The social worker testified that mother completed the number of sessions required by her plan and was inquisitive and engaged in classes. However, there was a concern that she had not applied the information to her relationship with C.B. Her visits with the children were generally positive. However, she had not substantially complied with the domestic violence component of her case plan because she lacked insight into the cycle of violence and things she self-disclosed, including controlling behaviors from C.B. She had moments of clarity, but returned to him several times and continued denying any problems. The agency did not believe it was safe to return the children to mother and C.B.

Mother testified she learned from her domestic violence classes, but said she and C.B. had resolved issues of his controlling behaviors and moved past them. She said they agreed to a plan to resolve issues by taking time apart and then talking things through. She still lived with C.B., but said they were willing to do whatever it took to get the children returned home.

The court continued the hearing to consider additional evidence from C.B.’s domestic violence therapist. The therapist said C.B. was “working on not controlling his partner.” The facilitator gave C.B. mostly threes out of five and some fours on a progress evaluation. The facilitator said he moved the evaluations up to three because C.B. admitted his controlling behaviors in recent weeks. The facilitator reported C.B. was not happy about the threes and wanted fives.

After considering the reports and testimony, the court found by clear and convincing evidence that the children should be continued as dependents and that returning the children to the custody of the parents would create a substantial risk of detriment to the children’s physical and emotional well-being. The court found that reasonable services were provided to both parents and they made some progress with the provisions of the case plan. Nevertheless, the court terminated mandated services for the parents finding there was no substantial probability the children could be returned to parents by the 18-month date. The court scheduled a hearing pursuant to section 366.26 to choose a permanent plan. C.B. exited the courtroom during the court’s remarks saying “this is the weirdest thing ever.”

8

C.B. completed in-person visits with J.B. between January and March 2020 until in-person visits were suspended due to COVID-19. At one visit, C.B. ran and played with J.B. outside. J.B. enjoyed getting muddy and jumping in puddles of water with C.B. When they finished playing, C.B. helped clean J.B.’s muddy boots before returning inside where C.B. gave J.B. a snack.

C.B. attended several virtual visits with J.B. He was late to one visit and another visit was canceled after he was 30 minutes late. C.B. was usually in his vehicle or outside for his virtual visits.

The supervision monitors repeatedly encouraged C.B. to bring more items to the visits to engage with the child, but he did so only about half the time. On one occasion, C.B. had sock puppets, slime, and snacks for a virtual visit. J.B. thought the sock puppets and C.B.’s voice changes were funny. C.B. watched J.B. play and asked the child to find the color in the child’s toys that matched the color of C.B.’s slime. C.B. provided words of encouragement as he watched J.B. play.

C.B. was interactive, playful, and affectionate with J.B. during in-person and virtual visits. He provided snacks, changed the child’s diaper, and attended some medical appointments. Although C.B. attended visits throughout the case, he also missed, canceled and was late to some visits, including virtual visits.

J.B. appeared to be developmentally on target as of May 2020. The child was very bonded with the relative caregivers and appeared remarkably happy. The Agency believed J.B. was adoptable based on the child’s numerous appealing characteristics including age, attractive physical appearance, and appropriate physical, mental and emotional development. The child was specifically adoptable by the relative caregivers who expressed their desire to provide permanency through adoption for J.B. and appeared committed to maintaining sibling relationships with the other children.

Mother and C.B. expressed concern that J.B. appeared to be sad or anxious during virtual visits.[5] Mother was offered behavioral support with a therapist to address how to assist J.B. when the child appeared sad or anxious. Mother declined saying she just needed in-person visits. C.B. was also offered behavioral support to address his concerns with J.B. C.B. declined, saying he was too busy if it was just something for him to do to fill his time. However, he did say he would participate if it meant J.B. could come home faster.

C.B. did not drug test as requested on three occasions. On one occasion, C.B. reported that he was out of state helping someone move. The Agency expressed concern about the veracity of C.B.’s statements that he could not drug test because he was traveling out of state.

The agency concluded that neither mother nor C.B. demonstrated changes to ensure the safety and well-being of the children, and that returning them home would place the children at risk of continued neglect and abuse, witnessing domestic violence and substance abuse, and adding to the trauma the children had already endured. The Agency was confident that the caregivers would facilitate and maintain the sibling relationships for years to come.

9

The court denied prima facia the motions of both mother and C.B. to change the order declaring J.B. a dependent of the court pursuant to section 388. The court noted that C.B.’s progress with his domestic violence treatment was only guarded as of the end of January 2020 and that another recent report indicated he had very little insight and took no responsibility for domestic violence. The court also noted there was an allegation that C.B. was still living with mother and there were no current drug test results. The court concluded it could not find it was in the best interest of the child to change the order when C.B. had not completed his reunification plan. The court also denied mother’s motion, stating that even though she made some progress toward her plan, she had not completed the domestic violence plan.

C.B. posted a message on a social media page accusing J.B.’s caregivers of keeping the child from him and having money “to pay off the judge.” He also accused the Agency of being corrupt.[6]

10

The section 366.26 hearing proceeded on August 7, 2020. The Agency continued to recommend adoption for J.B.

C.B. called a visitation supervisor who supervised visits twice weekly between March 2019 and August 2019. Most of the time the parents were on time to the visits, but were often late. C.B. demonstrated effective parenting skills during the visits and demonstrated a parental role to J.B. C.B. and mother did a good job of managing their time so both could play with all the children. Most of the time the parents were prepared with food or snacks. C.B. responded appropriately to J.B.’s verbal and nonverbal signals and generally put the child’s needs ahead of his own.

The child had a strong attachment to C.B. at the time. The child was happy to see C.B. and sought out C.B. rather than mother. The child shared hugs and kisses with C.B. C.B. played with the child using colors and blocks and shapes. They played ball or other activities outside. When the child cried upon separating from C.B., C.B. had the visitation supervisor put the child into the car.

C.B. also called the visitation supervisor who supervised visits over five to six weeks before the hearing. C.B. attended the visits on time and brought a backpack with snacks. He did not bring educational activities. C.B. got down on the child’s level to interact and play. C.B. demonstrated a parental role by responding appropriately to the child’s verbal and nonverbal cues. However, there were moments when C.B. placed his needs ahead of those of the child. For instance, when the child asked for “mama, dada, home or car,” C.B. told the child not to call the caregivers mama and dada.

J.B. had some trouble adjusting or coming to visits, but was happy to see C.B. when he arrived. The child went to C.B. easily and looked to him for help. On one occasion, the child cried when put into the car at the end of a visit. C.B. had the visitation supervisor put the child in the car and the child calmed down quickly.

C.B. testified he met the child within hours of the child’s birth and tried to be involved as much as possible in the child’s life. He denied going to any visits under the influence of drugs or alcohol. He said he always tried to engage in educational or physical activities with the child to aid in his growth.

C.B. said the child was always excited to see him and easily went to him at the beginning of visits. The child also had some difficulty separating from C.B. C.B. said he could always improve and urged the court not to terminate his rights to his child. He felt he was bonded with the child, that they loved each other very much, and it would not be in the child’s best interest for C.B. to be removed from the child’s life.

Counsel for J.B. and some of the other minor children agreed with the Agency’s recommendations. Counsel ask the court to find J.B. both generally and specifically adoptable because the child was placed with a family who wished to adopt the child. Counsel argued the beneficial parent child relationship exception did not apply to J.B. because the child never lived with the parents and always relied on caregivers to meet the child’s needs. Although C.B. was more consistent than mother in terms of visits, there were issues with caregivers needing to come early to console the child. The parents never moved past supervised visitation and did not assume a parental role in the child’s life. Counsel also noted that C.B. and mother had more access to the children when they were living with the parental grandparents, but because of the altercation with the parents, the children were removed from that placement. Because the caregivers made efforts to provide the siblings access to one another, minors’ counsel felt the sibling exception did not apply to prevent adoption.

The court considered the reports, the documentary evidence, the witness testimony, and the prior findings and orders. The court adopted minors’ counsel’s analysis and further noted J.B. had not spent one full day in the custody of either parent. The court terminated parental rights as to J.B. as well as S.S., O.S., and L.S. The court found adoption was in the best interest of the children and the preferred permanent plan.

III

DISCUSSION

A

After examination of the record, mother’s appointed counsel filed a brief indicating there are no arguable issues as to S.S., L.S., and O.S. Appellant’s request that this court exercise its discretion to review the record for error and permit the filing of a supplemental brief is denied. Because no claim of error or other defect has been raised in this matter, we dismiss the appeal as to these children. (In re Sade C., supra, 13 Cal.4th at p. 994.)

B

1

“When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family.” (In re Celine R. (2003) 31 Cal.4th 45, 52.) When those efforts fail, “ ‘the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (§ 366.21, subd. (g).)’ ” (Ibid.) “ ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (Ibid.)
“Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)

One exception to the preferred plan of adoption is a beneficial parent-child relationship. The beneficial parent-child relationship exception applies where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[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 parent bears the burden of showing the exception applies. (In re J.C. (2014) 226 Cal.App.4th 503, 529.)

“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.)[7]

2

The first element that must be established under the beneficial relationship exception requires a showing that the parent maintained regular visitation and contact with the child. (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court did not make an express finding as to this element, but agreed with the arguments of minors’ counsel who pointed out that even though C.B. may have been more consistent than mother in terms of visits, there were a lot of issues with visitation and the parents never progressed past supervised visits.

Additionally, as noted in an Agency report, C.B. had an opportunity to assume a parental role for about six months when the child was placed with grandparents on the same property. Even though C.B. had the ability to interact with the child during that period, C.B. did not adhere to a schedule requested by the grandparents and completed visits only when it was convenient for him. Ultimately, the children were removed from that placement after an altercation among the adults. C.B.’s visits decreased from every other day to once a week. Throughout the case, C.B. frequently missed or canceled visits or was late.

Nevertheless, we need not resolve this issue because we conclude that, even if C.B.’s visits were sufficiently consistent, the juvenile court did not err in finding he failed to show the existence of a beneficial parent-child relationship sufficient to overcome the preferred plan of adoption.

3

“To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child 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. [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 Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).)

“A parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) “A friendly relationship . . . ‘is simply not enough to outweigh the sense of security and belonging an adoptive home would provide.’ ” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) “While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination.” (Angel B., supra, 97 Cal.App.4th at p. 467.)

The juvenile court noted that all the children had a chaotic childhood with little stability and J.B. had not spent a day in the custody of the parents.

Although C.B.’s visits with J.B. were “full of laughter and fun,” C.B. did not occupy a significant parental role sufficient to outweigh the benefits of an adoptive home. A social worker concluded C.B.’s relationship with J.B. was only that of a “very close relative” and the child’s need for permanency outweighed any detriment J.B. may suffer if C.B.’s parental rights were terminated. These observations are supported by the record.

When C.B. and mother visited the children together, mother undertook most of the roles of feeding the children and changing diapers. C.B. provided forms of entertainment such as bringing a lizard in a bucket. Mother reminded C.B. to give hugs and kisses at the end of visits and suggested checking J.B.’s diapers or reading to J.B.

When C.B. had visits alone with J.B., he engaged in playful activities with the child who smiled and laughed. They played outside on play structures, tossed a frisbee, played with water, and had snacks. The child generally separated without distress, saying goodbye and blowing kisses. When the child did fuss, C.B. passed the child to another person or walked away because C.B. did not want to see the child cry.

C.B. frequently put his needs above those of the child by talking about the dependency case either to the child or the visitation monitor and by shaming the child for referring to the caregivers as the child’s mother and father. On one visit, C.B. noticed J.B. looking at a picture of the other children and kissing the picture. C.B. asked J.B., “Do you miss our family?” On another visit, C.B. told the child, “I love you. I’m sorry you are going through this. Mommy misses you too, I think.” At one point, C.B. asked the child to call him dad, saying “that other dada has already been manipulated.” When C.B. asked the child to say, “I love you, dad,” the child responded by saying “bye” and “home.” C.B. expressed frustration with the case and referred to himself as the “real daddy.”

The visitation monitors repeatedly encouraged C.B. to bring toys or objects to engage and entertain the child during virtual visits, but he did so only some of the time. C.B. also frequently recorded the visits rather than focusing on engaging with the child.

In considering the beneficial relationship, we consider whether “ ‘the relationship promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents. In other words, the 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[ren] 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.’ ” (In re E.T. (2018) 31 Cal.App.5th 68, 77, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

No showing has been made here that J.B.’s relationship with C.B. was so significant that it outweighed the benefits the child would gain from a permanent adoptive home or that severing that relationship would greatly harm the child. The child appears to be happy and thriving with the relative caregivers. J.B. is on target developmentally. The child is comfortable in the relative caregivers’ home and looks to them for comfort. J.B. refers to the caregivers as “Mama and Dada” and yells, “Home!” when they approached their house.

Moreover, adoption does not necessarily mean C.B. cannot maintain some form of relationship with the child. The caregivers are related to C.B. and have supported C.B. in the past. The extent of his involvement in the child’s life will depend in large part on whether C.B. can control his own behavior.

The juvenile court did not abuse its discretion in finding that the beneficial parent-child relationship exception did not apply because the bond between C.B. and J.B. was not of such a quality that maintaining that relationship would outweigh the benefits of adoption.

C

Given our conclusion that the court did not err in finding the beneficial parent-child relationship exception does not apply, we need not address C.B.’s request to consider the court’s later restraining order, which is the subject of a separate appeal.

III

DISPOSITION

Mother’s appeal of the orders as to minors S.S., L.S., and O.S. is dismissed. The order as to minor J.B. is affirmed.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.

[1] Because we dismiss the appeal as to S.S., L.S., and O.S., we focus on the relevant background and facts regarding J.B. We provide some family background for context.

[2] One of the children reported they went to Safe Families the first time because mother needed to find a place to live and the second time after mother and C.B. argued and mother was crying.

[3] The two oldest children are not parties to this appeal.

[4] Further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[5] Mother visited with J.B. between January and March 2020. Mother began virtual visits with J.B. in April 2020, but often did not show for the visit. Mother was frequently late, canceled, or did not show for virtual visits with J.B. and the other children. The caregivers said they attempted to schedule visits with mother, but she did not reach out or make contact. J.B. had a difficult time remaining at visits with mother after June 2020. The child cried uncontrollably, said no, and walked away from the visit crying for the caregivers. Mother blamed the situation on the caregivers transporting the child or because the child was not placed with the other children. Mother did not reach out to the caregivers for additional contact or to inquire if the child was ill.

[6] The caregivers requested restraining orders to keep C.B. and mother away from J.B., the child’s caregivers, and the nanny. The caregivers expressed concern that C.B. and mother would make good on threats to harm the caregivers or forcibly take the child out of their care and out of state. They cited text messages C.B. sent saying he planned to “get the kids and leave the state,” and messages C.B. sent to the caregivers through third parties telling the caregivers to give his child back. The caregivers cited C.B.’s social media posts about his feelings toward them and witnessed C.B. and mother driving past their home. C.B. also allegedly talked to others about killing himself if he did not get the child back. At a later hearing the court granted a temporary restraining order for mother and C.B. to stay 100 yards from J.B., the caregivers, and the nanny pending further order of the court. A subsequent no-contact order is the subject of a separate appeal. We deny C.B.’s request for judicial notice of the record in that case as unnecessary to our determination of the issues in this appeal.

[7] CB asserts this court should apply the substantial evidence standard of review, but recognizes there is ongoing debate about whether to review these cases for substantial evidence, abuse of discretion, or a hybrid. (See, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 576.) We believe the hybrid standard of review is correct for the reasons stated in In re J.C., supra, 226 Cal.App.4th at pages 530-531. This issue is currently pending in the California Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. Our conclusion in this case would be the same under either of these standards.