In re J.Q.













Filed 3/23/17 In re J.Q. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re J.Q. et al., Persons Coming Under the Juvenile Court Law.


TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

B.Q.,

Defendant and Appellant.


F073597

(Super. Ct. Nos. JJV067191B, JJV067191C, JJV067191D)


OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Anthony Fultz, Judge.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum andJason G. Chu, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
B.Q. (father)[1] appeals the termination of his parental rights over his children. He contends the juvenile court’s finding that the children are adoptable is error. He further contends that he satisfied the beneficial parent-child relationship exception to terminationof parental rights. We disagree and affirm.
STATEMENT OF THE CASE AND FACTS
Detention, Jurisdiction and Disposition
A July 28, 2013, child welfare referral alleged mother and father[2], who were homeless and had been living in a motel for a few days, were using methamphetamines and hitting the children.The responding social worker found the children, who said they had not eaten since the night before, wearing dirty and soiled clothes. Mother was arrested for being under the influence and the children placed in protective custody.Father, who was not present at the time, was later contacted and admitted long-term methamphetamine addiction.Father also stated he was bipolar and schizophrenic, but had not taken medication for his mental health since December 2012.
As a result, the Tulare County Health and Human Services Agency (agency) filed a Welfare and Institutions Code section 300[3] petition on July 30, 2013, alleging the children, then four-and-a half year old J.Q., two-and-a half-year-old S.Q., and their half sibling, nine-year-old J.B.,[4] came within the provisions of subdivisions (b) and (g) due to father and mother’s substance abuse issues and transient lifestyle, as well as mother’s incarceration.
At the detention hearing on July 31, 2013, the juvenile court authorized services for father and mother, including substance abuse evaluation, alcohol and drug testing, mental health initial assessment, and parenting classes.Twice weekly supervised visits were ordered, which would cease for that parent if incarcerated.
In anticipation of jurisdiction, the social worker met with father and mother to discuss the court process. The parents were reminded of the two years of voluntary family maintenance services they previously received for J.B. and J.Q. while residing in Inyo County, as well as the family reunification services father previously received for his child A.Q.Father and mother both claimed they previously completed parenting classes and did not think they needed to do so again. Father stated he was drug testing while on probation and did not think he needed to do so for the agency as well.Father stated he was diagnosed as schizophrenic and bipolar, but had not taken medication because he lacked transportation from Porterville to Visalia.Father was referred for an assessment for services and advised how to set up an appointment for his psychotropicmedication.Neither parent thought they would benefit from additional services.
In August 2013, both father and mother missed their substance abuseevaluations, stating they overslept. Father also failed to respond to the social worker’s attempts to schedule a mental health assessment.
At their first visit with father and mother on August 6, 2013, the children were happy to see their parents. Although the parents were appropriate with the children, father and mother spent the majority of the time with S.Q. and ignored the boys.They cancelled their second scheduled visit.
At the August 28, 2013, jurisdiction/disposition hearing, the juvenile court dismissed the allegation regarding mother’s incarceration and sustained the remainder of the section 300 petition. The children were removed from father and mother. The juvenile court found that, while the reunification bypass provision under section 361.5, subdivision (b)(13),[5] applied to father, due to his resistance to prior court-ordered drug treatment, reunification services were ordered for both parents, including substance abuse evaluation, alcohol and drug testing, mental health initial assessment, and parenting classes.The children were placed in foster care in Porterville where both father and mother lived.A six-month review was set for February 2013.
Six-month Review
The report prepared for the six-month review hearing stated father informed the social worker in October 2013 that he had an open case with Tulare County Mental Health, but was not complying with his appointments.It was not until mid-January 2014 that father enrolled in counseling and had a psychotropic medication evaluation with a doctor.He did not enroll in parenting classes until January 2014, although he was provided parenting class options months earlier.
Father failed to attend five substance abuse evaluations scheduled in August, September and October 2013. At the end of October 2013, father attended a substance abuse evaluation appointment but was informed he had to complete his treatment through drug court.Father was arrested in November 2013 for noncompliance with his probation terms. At that point, father admitted methamphetamine use in October and November 2013.When father was released from custody in December 2013 he entered a residential treatment program in Visalia.Father tested clean on four occasions in January 2014.During this review period, mother became pregnant and admitted using methamphetamine while pregnant.
As for visits with the children, while mother visited consistently, father did not visit during November and December 2013. The children were excited during visits and enjoyed being with their parents, but were not distressed when visits ended. At times, J.Q. became easily agitated and would be defiant towards his parents. Father and mother both struggled to regulate the boys’ behavior.
Citing father and mother’s minimal progress, the agency recommended family reunification services be terminated.
At the six-month review hearing held February 26, 2014, the juvenile court noted father and mother’s delay in participating in their case plan, but found moderate progress and family reunification services were continued for both parents.A 12-month review was set for August 2014.
Twelve-month Review
The August 2014 report prepared in anticipation of the 12-month review stated father completed residential drug treatment in March 2014, but then experienced two months of homelessness.Mother gave birth to father’s child, L.Q., in April 2014.By July, father and mother found housing in Ivanhoe, where they shared a two-bedroom home with two unrelated adults, Diana and Joe.
Father enrolled in parenting classes in February 2014, but was in jeopardy of being dropped from the class by May because he had missed four consecutive sessions. Father attributed his lack of attendance to transportation issues.He was thereafter referred to in-home parenting classes, but by July only completed three of 26 classes.Father was providing clean random drug tests since January 2014, although he missed a few tests because he “forgot.”He was participating at least once a month in counseling and was receiving psychiatric services.
The children’s foster mother reported the children had no major behavior concerns. J.Q.’s tantrums had markedly decreased. S.Q.’s vocabulary was expanding and she was receiving weekly speech development services.All three children developed an attachment to foster mother and called her “mom.”The foster mother expressed an interest in adopting the children should father and mother fail to reunify.
During this review period, father and mother consistently visited the children, who often expressed excitement about their visits.In March 2014, visits were increased to once a week for four hours, and in July 2014, to twice a week for three hours.
The agency cited father’s significant progress in addressing his substance abuse and recommended reunification services continue for father and mother.
At the 12-month hearing on August 13, 2014, family reunification services were continued. The plan was for the agency to transition the children home to father and mother, at the agency’s discretion.A section 366.22 review hearing was set for January 2015.
Section 342 Petition as to J.B., J.Q. and S.Q.; Section 300 Petition as to L.Q.
On September 22, 2014, the agency filed a section 342 petition[6] as to the three dependent children and a section 300 petition as to the nondependent child L.Q.Father and mother’s mental health issues were the basis for the sections 342 and 300 petitions. The section 300 petition also sought dependency jurisdiction due to father and mother’s ongoing substance abuse issues and transient lifestyle.
Father had reported on September 10, 2014, that he was frustrated because he ran out of medication. He reported hearing voices for several days, he thought people were following him and he felt very agitated and confrontational. He did not think his prescription medication was helping.Although the social worker offered to transport him to Tulare County Mental Health, father declined.
Mother reported to the social worker that father had grabbed a knife and tried to cut his wrists.Law enforcement responded and father was taken to the hospital on a voluntary basis, although he denied cutting his wrists.Father felt better after receiving new medication the following day.
On September 15, 2014, the social worker contacted father’s therapist, who stated father had missed his last three appointments. He also missed two psychiatric appointments, which explained why he ran out of psychotropic medication.
At an August 2014 supervised visit, which was also a birthday party for J.B., father became hostile and yelled in front of the children, slammed down a food tray and walked out.The foster mother reported the children were scared by father’s behavior. Father said he was upset because the children would not listen to him and wanted to sit next to their foster mother.
Mother was reported to be overwhelmed with caring for father and L.Q. According to father and mother’s roommate, Diana, mother slept all day, leaving L.Q.’s care to Diana and father.
After a protective custody warrant was issued for L.Q., he joined his siblings at their foster care placement.
L.Q.’s Detention Hearing
At the September 26, 2014, detention hearing for L.Q., father claimed he missed his September 4, 2014, psychiatric appointment because he was caring for L.Q., who was sick at the time.He claimed the cut on his wrist was caused by a tree branch that caught his watch while pruning a tree, just before the social worker saw him on September 10, 2014.Father testified he was overwhelmed during the August birthday party visit because there were a lot of children running around. He denied cussing and slamming down a food tray at the party.According to father, the medication change for his depression was helping him.
The juvenile court ordered L.Q. detained from father and mother, but granted the agency discretion to return him to his parents once their mental health issues stabilized.The previous case plan was kept in place, and L.Q.was placed with his three older siblings in foster care. The same visitation orders were kept.Jurisdiction was scheduled for October 17, 2014.
Section 342 Petition Hearing
Jurisdiction on the section 342 petition was set to coincide with the jurisdiction hearing on L.Q.’s section 300 petition.
Jurisdiction Report and Hearing for the Sections 342 and 300 Petitions
The report prepared in anticipation of jurisdiction/disposition on the sections 300 and 342 petitions stated father reported he was taking his mental health medications.Father also stated he was attending his substance abuse treatment group sessions, but forgot to get his attendance cards signed.The in-home parenting instructor and the social worker both found father and mother had difficulty keeping the home safe and hazard-free, as evidenced by roaches, excessive dust, dirt, dirty dishes, rotten food, objects that could present a choking hazard, and animal hair.
At the jurisdiction/disposition hearing on October 17, 2014, the juvenile court found the sections 300 and 342 petition allegations true.All the children were removed from parents’ care and reunification services were ordered. Father was to receive supervised visits with the children twice a week for three hours.A six-month review was set for L.Q. in April 2015 and a section 366.22 18-month review hearing was set for the older children in January 2015.
Section 366.22 18-month Review Report for J.B., J.Q. and S.Q.
The report prepared in anticipation of the section 366.22 18-month review hearing recommended reunification services be terminated as to J.B., J.Q. and S.Q.Father and mother had been living with Diana and Joe, whom they identified as their parents and had instructed their children to call them grandparents.In November 2014, after a falling out, father and mother moved out of the residence and were again in a motel.Father and mother moved into a three-bedroom apartment in Springville with father’s father in January 2015.
Father’s participation in mental health services through Tulare County Mental Health stopped when he changed his residence to Springville.He enrolled with Porterville Mental Health and had an intake appointment set for January 2015.
In-home parenting for father was terminated in October 2014 due to lack of participation on his part. After relocating to Springville, he claimed to be enrolled in a parenting class in Porterville.
According to father, he was attending substance abuse treatment sessions while still living in Ivanhoe, but was unable to show proof of attendance.He had negative random drug tests between January and August 2014, with only one “no show” in November 2014.
By this time the children had a healthy attachment to foster mom.Father and mother had difficulty making scheduled visits and, while still in Ivanhoe, missed visits at least once a week.The social worker met with the parents and they indicated that they understood the bus schedule.After moving to Springville in November 2014, father and mother continued to have difficulty attending visitation.Father claimed lack of money for transportation as the reason.
At the visits father and mother did attend, they were reported to have little patience with the children and would end the visits early. They loosely supervised the children and had trouble parenting the children together. At one point, S.Q. wandered off and father and mother had to be reminded to keep an eye on her. The older boys showed little excitement about the visits.
The social worker reported that, after 18 months of services, while father and mother had addressed their substance abuse issues, they had made minimal progress in their mental health stability and lacked parenting skills. Father had not seen a therapist or psychiatrist since October 2014 and requested a change of mental health provider.Father did not see a reason to complete a parenting class and, despite in-home parenting instruction, failed to complete any parenting homework.Father’s parenting instruction was terminated for failure to engage during class.
Eighteen-month Review Hearing for J.B., J.Q. and S.Q.
The 18-month review hearing was eventually held February 11, 2015. The addendum report submitted for the hearing reported father’s mental health treatment plan was transferred from the Visalia Mental Health Clinic to Porterville Mental Health in November 2014. Father had poor attendance in meeting with both the therapist and the psychiatrist.When the social worker spoke to father on January 29, 2015, about his mental health treatment, he reported that he did not see the value in attending his mental health appointments. Instead, he became agitated, asked to be left alone, expressed that he did not like to engage with the social workers or mental health whatsoever and walked away.
Father testified at the section 366.22 hearing that he believed his mental health had been stabilized, with his last mental health episode having occurred just prior to L.Q.’s placement into protective custody.According to father, he completed seven of the 18 parenting classes and attributed his lack of further progress to his relocation to Springville. Father claimed he had to relocate because the people he was living with did not want to keep the house clean and it was too small for the children to be placed with them.
The juvenile court found returning the children to father and mother was not appropriate. The juvenile court terminated reunification services for both father and mother and ordered visits to continue once a week for three hours.A section 366.26 selection and implementation hearing was set for May 29, 2015, and writ notice served on the parents.
Six-month Review Report for L.Q.
The report prepared for L.Q.’s review hearing recommended reunification services be terminated. L.Q. remained placed in foster care with his siblings.When the social worker met with father and mother on March 25, 2015, father reported attending mental health appointments, but that he was not taking his psychotropic medication as prescribed because it made him drowsy and sleepy.The social worker considered returning the children to mother, if father agreed to move out, however the parents would not consider that option.
As of March 23, 2015, father had completed seven of 18 parenting classes, with six “no shows,” and was at risk of being terminated from the program for lack of attendance.Father was given the option to make up missed classes but had not done so.
Father had still not provided proof of compliance with substance abuse treatment sessions, but he was testing clean with only a few “no shows” since September 2014.
L.Q.’s foster mother, who also had placement of J.B., J.Q., and S.Q., initially expressed an interest in adopting the children but, for personal reasons, was no longer interested in adopting or providing legal guardianship for the children.
In an addendum report, the social worker reported that father was attending mental health appointments at Porterville Adult Clinic and was in the early stages of treatment, having been diagnosed with schizophrenia (paranoid type), depressive disorder, and amphetamine dependency.
Six-month Review Hearing for L.Q.
At the contested review hearing held April 15, 2015, father’s counsel claimed father completed 11 out of 18 parenting classes. He requested supervised visitation continue to occur once a week for three hours.The juvenile court terminated reunification services for father and mother as to L.Q., and a section 366.26 hearing was set for July 31, 2015.Writ notice was served on both father and mother.
Section 366.26 Report for J.B., J.Q. and S.Q.
The report prepared in anticipation of the section 366.26 selection and implementation hearing stated the children’s caregiver had decided not to move forward with adopting the children due to personal reasons.The adoption assessment, completed on May 5, 2015, indicated the children would not experience significant emotional detriment if parental rights were terminated, that the children were not very attached to father or mother, and recommended efforts be made to find an adoptive home for them.
The children were described as being in good health and developing physically and emotionally.J.B. was diagnosed as moderate mental retardation, but had no medical issues. He was described as a conscientious student but verbalized anger during therapy, stemming from father and mother’s attention to his younger siblings.
J.Q. was reported to be in good health and on task developmentally. His behavior had improved and he was now able to control his temper tantrums.
S.Q. had an inhaler for asthma, but was developmentally on track. She passed a hearing disability test and her speech had improved while in foster care.
Father and mother continued to be inconsistent in their visitation, citing transportation issues. When they did visit, they stayed for only one of the three allotted hours.
The report of the Court Appointed Special Advocate (CASA) stated the children called the foster mother “mom” and referred to the foster home as “home.” J.B. stated a desire to be adopted by the foster mother while J.Q. said he wanted to go back to father and mother.
Section 366.26 Hearing for J.B., J.Q. and S.Q.; Section 388 Petition
At the scheduled section 366.26 hearing, the parties requested a contested hearing.The agency was to produce the social worker narratives prior to the hearing, which was now set for June 17, 2015.On June 9, 2015, prior to the hearing, father filed a section 388 petition requesting J.Q., S.Q. and L.Q. be returned to his custody or that reunification services be reopened.The hearing on the petition was set to coincide with the section 366.26 hearing.
In its response to father’s section 388 petition, the agency noted that, although father completed parenting classes, he still lacked parenting skills as evident from his visits with the children.Father had difficulty parenting all of the children at once, often ending visits early due to easily losing control of the children and lacking patience.Father provided a list of mental health appointments he had attended, but provided no information regarding his progress in mental health treatment. This was a concern for the agency due to father’s history of not consistently attending to his mental health issues and his agitation and paranoia when off his medication.The agency concluded there had not been a change of circumstances since father’s reunification services were terminated, and his request to either have the children returned to him or to reopen reunification services was not in the children’s best interests.
In an addendum report filed before the hearings, the agency described efforts to exchange the children’s information with other county and private adoption agencies in hopes of finding an adoptive family for the children. The report also noted father and mother continued to end visits early, especially on one occasion in June 2015, despite being encouraged to stay. They also missed a scheduled visit that month.
At the hearings held July 1, 2015, father testified in support of his section 388 petition that he had been participating regularly in mental health treatment since January 2015, although he was not currently engaged in counseling and no longer had a therapist.According to father, his psychologist dismissed him from counseling, but he was engaged in an eight-week program that would address a crisis situation or if he felt overwhelmed.He also testified he was taking medication consistently since December 2014 and was seeing a psychiatrist every two months. He felt stable on his medication.
When asked about leaving early from his visits with the children, father explained it was hard to entertain four children over a long visit. He claimed to miss the June 22, 2015, visit due to having to take mother to her outpatient drug program and there was no flexibility in the visitation schedule.Father testified he was living with his father in Springville, in a three-bedroom home, and that the children would have a bedroom at the house.
Joseph Castillo, who arranged the visits, testified that it was not until the morning of the Monday, June 22, 2015, visit that father mentioned he was not able to attend because mother had a mental health appointment.Castillo denied father’s assertion that there was no flexibility to allow for a change in the visitation date.Castillo also testified he was not aware mother had substance abuse aftercare treatment sessions scheduled for Monday afternoons.
The juvenile court denied father’s section 388 petition, acknowledging some change in father’s circumstances, such as compliance with mental health treatment and completion of parenting classes. However, in noting the length of time father had received reunification services, nearly 24 months, it questioned the permanency of the change in circumstances.
The fact that the agency was looking for an adoptive family for J.B., J.Q. and S.Q. was of concern to the juvenile court, so the section 366.26 hearing for them was continued to July 31, 2015, to coincide with L.Q.’s section 366.26 hearing date.
Reports for the Section 366.26 Hearing for all the Children
The CASA report filed July 16, 2015, explained the foster mother’s decision not to adopt or provide guardianship for the children.She did agree to care for the children until an adoptive home became available and wanted to continue her relationship with the children once they were placed in another home.
The New Era Foster Family Agency provided input on the parents’ supervised visitation with the children from April 11, 2015, through July 7, 2015. During this time, visits were twice a week. Father and mother ended a number of visits early, missed three consecutive visits and cancelled another.
The agency recommended adoption for all four children as the permanent plan. Efforts to locate an adoptive home were underway.
The section 366.26 hearing for all four children was continued to September 11, 2015, to address the adoptability of the children or possible change in the agency’s position.
Addendum Report for the Section 366.26 Hearing for all the Children
In the September 11, 2015, addendum report, the agency requested a 180-day continuance in order to locate an appropriate adoptive family for all the children. While the agency opined that termination of parental rights would not be detrimental to the children, it noted adoptive placement was difficult because the children were a sibling group.
The agency clarified that, because the parents cited poverty and transportation issues regarding visitation, the agency accommodated the parents by transporting the children to visit the parents in Springville. This meant that the children spent two hours and twenty minutes in a vehicle essentially for a one-hour long visit because father and mother would not stay for the entire visitation period.Visits in Porterville required the children to be in a vehicle for approximately three-quarters of an hour.According to the foster parent, J.B. was glad father and mother cut the visits short as he did not like to visit with them, preferring to stay home and play.
Section 366.26 Hearing
At the time of the scheduled September 11, 2015, section 366.26 hearing, a continuance was requested because an adoptive home for the children had not been located.The children had been in their current placement for two years, which supported the children being adoptable, but the issue was their current placement was not an adoptive home.Because father and mother’s reunification efforts had been terminated and they were cutting their visits short, county counsel requested that the parents’ visits be reduced to every other week for an hour and that they take place in Visalia, for the children’s convenience.
Father’s counsel objected to the juvenile court finding the children were adoptable, noting J.B.’s retardation and J.B. and J.Q.’s behavioral issues. Instead, he requested long-term foster care. He proposed the children visit every other weekend for three hours.
Counsel for the minors stated J.B. did not want to return to the parents, but he was upset that the visits were cut short.
The CASA representative testified she spent a good deal of time with the children and thought their behavior was normal. She opined that J.B. was mildly, not moderately, retarded and wished to have him reassessed.
The juvenile court found there was a probability of adoption, but that the children were statutorily difficult to place because there were four of them, ranging in age from 12 years to one year old, and there were potential mental disability issues.Adoption was identified as the permanent plan goal. Father and mother’s parental rights were not terminated, but visitation reduced to every other week for three hours in Porterville.If father and mother were unwilling or unable to visit consistently, the agency had discretion to reduce the visits and change the location.The section 366.26 hearing was continued to February 26, 2016.
Section 366.26 Report for February 2016
On September 22, 2015, the children were removed from the foster home because foster mother allowed an unauthorized person to move into the home. The children were split up into two separate foster homes, but united in one foster home in October 2015.By December 2015, the children were placed with prospective adoptive parents, where the children seem happy and the foster parents reported that everything was going well.
J.B. was doing well in school and no longer met the eligibility requirements of the Central Valley Regional Center (regional center).He did not want to miss school in order to visit with father and mother.J.Q. was developmentally on task and also not in need of regional center services. He was attending school, had no behavioral issues, but was attending therapy for various disorders.S.Q. was verbal and her speech had improved.
In January 2016, when asked about the possibility of being adopted, J.B. said “awesome,” and was excited to have a forever home. J.Q. expressed similar feelings.S.Q. and L.Q. were too young to give an opinion, but were observed to be happy and content with their caretakers.
Father and mother were appropriate with the children during visits.
The agency recommended termination of parental rights and that adoption be ordered as their permanent plan.
Section 366.26 Hearing
At the March 18, 2016, contested section 366.26 hearing, father testified the children had been out of his custody for about three years. At visits, he thought they showed affection towards him.Father’s counsel argued against the children being adoptable, asserting the parent-child relationship exception applied.
The juvenile court found the children were clearly adoptable and that there was a family willing to adopt them as a sibling group.The juvenile court found that the bond the children shared with father and mother was not so strong that termination of parental rights would be detrimental to the children.While visits were pleasant and happy, the parents left visits early even though they had very limited visitation.The juvenile court, noting the adoptive home would give the children the permanency and stability they needed, terminated father and mother’s parental rights.
DISCUSSION
1. Adoptability
Father contends the juvenile court erred in terminating his parental rights because there is no substantial evidence that the children are adoptable, citing two of the four children’s emotional and mental health issues.[7] We disagree.
A section 366.26 hearing is “specifically designed to select and implement a permanent plan for the child.” (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) The procedures set forth in section 366.26 “are the exclusive procedures for conducting these hearings.” (§ 366.26, subd. (a).)
Under section 366.26, subdivision (b), the court must:
“… make findings and orders in the following order of preference: [¶] (1) Terminate the rights of the parent or parents and order that the child be placed for adoption .…[¶] (2) Order, without termination of parental rights, the plan of tribal customary adoption .… [¶] (3) Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child .… [¶] (4) On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. [¶] (5) Appoint a nonrelative legal guardian for the child .…[¶] (6) Order that the child be permanently placed with a fit and willing relative .…[¶] (7) Order that the child remain in foster care .…”
In choosing among these alternatives, the juvenile court must first determine by clear and convincing evidence whether a child is likely to be adopted. A child is generally adoptable when his or her personal characteristics are sufficiently appealing to make it likely that an adoptive family will be located in a reasonable time, regardless of whether a prospective adoptive family has been found. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) “[T]he statutory scheme and case law require a determination of the adoptability of a child as an individual: ‘“The issue of adoptability … focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.”’” (In re I.I. (2008) 168 Cal.App.4th 857, 872.)
“Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is ‘likely’ that the child will be adopted within a reasonable time.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292, quoting § 366.26, subd. (c)(1).) In assessing adoptability, courts often describe minors who are likely to be easily placed due to their young age and good health as “generally adoptable” and those who might otherwise be difficult to place due to being older or having significant physical or mental handicaps as “specifically adoptable,” indicating that a specific caretaker willing to adopt has been identified. (See, e.g., In re R.C. (2008) 169 Cal.App.4th 486, 492–494 (R.C.); In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) The juvenile court need not state on the record whether it found the child “‘generally adoptable’” or specifically adoptable; we will affirm as long as clear and convincing evidence in the record establishes the likelihood that the dependent child will be adopted within a reasonable time. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313 (A.A.).)
When a prospective parent expresses a desire to adopt the dependent child, that is usually “evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor.” (Sarah M., supra, 22 Cal.App.4th at pp. 1649–1650.) A prospective adoptive parent’s desire to adopt generally indicates that the minor “is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649–1650.)
At the March 2016 section 366.26 hearing, the juvenile court found the children were likely to be adopted and, accordingly, terminated parental rights. The adoptability findings are supported by substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732 [“On appeal, we review the factual basis for the trial court’s finding of adoptability … for substantial evidence”].) The social worker’s report, the adoption assessment, and the report from CASA all show substantial evidence that the children were adoptable.
J.B., who was diagnosed with attention deficit hyperactivity disorder (ADHD) before dependency, was at first defiant in foster care, but after nearly a year was able to control his conduct when upset. His ADHD medication was reduced and, by the time of the section 366.26 hearing, he was no longer prescribed ADHD medication.While diagnosed as moderately mentally retarded at one point, his school report showed significant progress and he was no longer in need of regional center services.He was excited about being adopted and not to have to live “‘out of a suitcase.’”
When J.Q. was first placed into foster care, it was reported that he was an aggressive child, prone to tantrums. After a year in his second foster home, his tantrums greatly decreased. By the time of the section 366.26 hearing, he was able to control his anger without tantrums.The fact that a child’s “aggressive and defiant behaviors significantly diminished while he was in the care of a stable, nurturing and attentive caregiver … permits the reasonable inference that an equally dedicated adoptive parent could manage [the child’s] behaviors without difficulty.” (In re Michael G. (2012) 203 Cal.App.4th 580, 592–593.) J.Q. expressed a desire to be adopted as he and his siblings would not have additional foster care placements.
When S.Q. was first placed in foster care, she was not yet verbal and there was concern about her language development. However, after receiving services through the regional center to assist in her speech delay, she passed a hearing disability test and her speech was improved.In R.C., supra, 169 Cal.App.4th at page 492, the child was found to be adoptable despite displaying symptoms of drug exposure at birth and slight speech delays.
L.Q. did not join his siblings in foster care until September 2014, and by April 2015, he was reported to be developmentally on track, walking, displaying good motor skills, and starting to say a few words.While S.Q. and L.Q. were both too young to express an opinion regarding adoption, both were observed to be happy and content with the prospective adoptive parents.
The CASA’s observations of the children further supports their adoptability.At the section 366.26 hearings, the CASA representative stated the children’s behavior seemed normal and she had not seen a lot of problems. While J.B. had been diagnosed as moderately mentally retarded, he was going to be reassessed as he was “maybe” only “mildly” retarded. She described the children as generally happy with friendly personalities.The CASA representative opined that the only downside was that the sibling group consisted of four children. But, she opined, there were families willing to receive these children “as long as they are willing to take four siblings.”In January 2016, after observing the children in their prospective adoptive home, the CASA representative reported the children seemed happy. The prospective adoptive parents reported things were going well.
Father insists the children’s brief placement with the prospective adoptive parents should not be accepted as proof of adoptability, citing the potential for ongoing emotional issues and the prospective parent’s inexperience in day-to-day parenting.But the prospective adoptive parents were informed regarding the children’s issues, were reported to be supportive of the children participating in therapy services, and had service providers available should the need arise.If father is expressing concern about the prospective adoptive parents’ lack of prior experience raising children, that is an attack on their suitability to adopt, which is not a proper subject of inquiry at a section 366.26 hearing. (A.A., supra, 167 Cal.App.4th at p. 1315.)
None of the children’s placement changes were attributed to their behaviors. Instead, they were moved from their first foster care placement August 2013 into an English-speaking foster home. Their second foster care provider, who originally wished to adopt but changed her mind due to personal reasons, asked to continue her relationship with the children once they were placed in another home. They were removed from their second foster home placement when the foster care provider allowed an unauthorized person into the home. Their next placement change was to allow them to reunite in a single foster care placement. And finally, they were placed into a prospective adoptive home in December 2015.
There is substantial evidence to support the juvenile court’s finding that the children were adoptable, and we reject father’s claim to the contrary.
2. Beneficial Relationship Exception
Father contends the juvenile court erred in concluding that the beneficial relationship exception to adoption was not established and it should not have terminated his parental rights. We disagree.
As noted above, 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 Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) One of these statutory exceptions is the beneficial 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).)
“‘To trigger the application of the parental relationshipexception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.’ [Citation.] A beneficialrelationship ‘is one that “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.”’” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
The nature of the relationship between the parent and child is key in determining the existence of a beneficialrelationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some “‘emotional bond’” with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) “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.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a “‘“parental role” in the child’s life.’” (K.P., supra, 203 Cal.App.4th at p. 621.) Factors to consider include, “‘“[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.”’” (Marcelo B., supra, 209 Cal.App.4th at p. 643.)
The parent has the burden of proving the statutory exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)The juvenile court’s decision a parent has not satisfied this burden is based on whether a beneficial parental relationship exists and, if so, whether the existence of that relationship constitutes “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).)
Appellate courts have adopted different standards of review for the beneficial parent-child relationshipexception, with some reviewing for abuse of discretion and others reviewing for substantial evidence. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.) Recently, appellate courts adopted a mixture of both standards, reviewing the existence of the relationship for substantial evidence and the application of the exception for abuse of discretion. (Id. at pp. 1300–1301.) We find no error under anystandard of review.
Father argues he established both prongs of the beneficial relationship exception and that the record in this case is supportive that the children would best benefit from a continued relationship with him. We disagree.
In support of the first prong, that he maintained regular visitation with the children, father contends “[a]ny gaps in visitation are understandable given the obstacles [he] faced in attending visits, primarily with the distances involved and time demands of their treatment programs.”In support of his position, father relies on In re Brandon C. (1999) 71 Cal.App.4th 1530, in which the juvenile court did not terminate the mother’s parental rights, finding it would be in the children’s best interests to maintain their ongoing relationship with her because she had maintained regular visitation, even though visits occurred only once a week. In affirming the juvenile court’s ruling, the Brandon C. court held that “[t]he benefit of continued contact between [parent] and children must be considered in the context of the very limited visitation [the parent] was permitted to have.” (Id.at pp. 1537–1538.) However, in Brandon C., the mother was not the children’s primary caretaker and, while she was given only weekly visits, she consistently visited the entire three-year period of the dependency case.
Here, father was permitted many more visits than he attended. He missed the second visit scheduled after the children were first removed and did not visit consistently in November and December 2013.By March 2014, father visited more consistently and visits were increased from once a week for four hours to twice a week for three hours.But on one occasion in August 2014, father became upset at the visit, scared the children with his behavior and left early.By January 2015, father was missing at least one visit per week.At visits he did attend, he often had little patience and would end the visits early.This pattern continued. While father claimed there was no flexibility in rearranging a visit when it did not suit, the person who arranged the visits testified otherwise.
In support of the second prong that the children would benefit from continuing the relationship with father, father cites to various instances during visits in which the children would go to father and mother easily, greet them, show physical affection towards them, go to them for comfort, and demonstrate that they do not want visits to end.We find father’s claim unavailing. Father is essentially asking us to reweigh the evidence and to accept his judgment regarding the applicability of this exception to termination of parental rights instead of the judgment of the juvenile court. We decline to do so. The burden is on father to show that the judgment was not supported by substantial evidence and thus demonstrate the beneficial parent-child relationship exception does not apply. We conclude father has failed to do so. While J.B., J.Q., S.Q. and L.Q. may have derived some benefit from their relationship with father, the record does not support a finding that it outweighs the benefit and stability they would derive from adoption, or provide grounds to reverse the sound judgment of the juvenile court.
In addressing the beneficial relationship exception, the juvenile court found no bond that would prevent termination of parental rights. As explained by the juvenile court, while father and mother had had “pleasant, happy visits” with the children, they left early even though they had limited visitation, which was “not a bond … that’s so tight that they can’t sever it or that severing it would be a detriment.”It is clear that there is substantial evidence to support the juvenile court’s findings that the bond between father and the children does not rise to the level which would make termination of parental rights detrimental to the children and outweigh the benefits of adoption.
To begin with, as noted by the juvenile court, the children now had the opportunity to have “an adoptable home that will take them in and give them the permanency and stability they need.”Furthermore, there is evidence in the record to support the juvenile court’s finding that the relationship between father and the children was not that of a parent-child relationship which would be detrimental to terminate. While visits with father were mostly pleasant, there were times when they were not and he, in fact, scared the children with his behavior. In addition, father did not always stay for the entire visit, instead finding an excuse to leave early. This is especially troubling since father had previous history with dependency issues—he received family reunification services for his older child A.Q., and then two years of voluntary family maintenance services for J.B. and J.Q. while in Inyo County. By the time parental rights were ordered terminated in March 2016, J.B., J.Q., and S.Q. had been in foster care for more than two and one-half years and L.Q. the majority of his short life, while father failed to reunify with them.
We find no error on the part of the juvenile court in finding that, while father more recently maintained somewhat regular contact with the children, there was clearly no evidence to show that termination of parental rights would be detrimental to them. We disagree with father’s argument to the contrary.
DISPOSITION
The judgment terminating father’s parental rights is affirmed.



_____________________
HILL, P.J.
WE CONCUR:


_____________________
GOMES, J.


_____________________
FRANSON, J.


Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com



[1] In this opinion, certain persons are identified by abbreviated names and/or by status in accordance with our Supreme Court’s policy regarding protective nondisclosure. No disrespect is intended.
[2] Because only father is a party to this appeal, the facts pertaining to him are emphasized.
[3] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
[4] J.B.’s father, A.L., did not participate in the dependency proceedings and is not a party to this appeal. Father took care of J.B. since age one and considered him his son.
[5] Section 361.5, subdivision (b)(13), provides that reunification services need not be provided a parent if that parent “has a history of extensive, abusive, and chronic use of drugs … and has resisted prior court-ordered treatment” within a certain time frame.
[6] A section 342 petition “alleges new facts or circumstances” in an ongoing section 300 dependency. (§ 342.)
[7] While J.B. is not father’s biological child, he is a member of the sibling group.