Filed 4/17/18 In re A.C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re A.C. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

F.C.,

Defendant and Appellant.


E069232

(Super.Ct.No. SWJ1100258)

OPINION


APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Appellant F.C. (father) appeals from a juvenile court’s order terminating parental rights as to his children, A.C., K.C., and A.L.C. (the children). He claims that the court erred in not applying the beneficial parental relationship exception. (Welf. & Inst. Code , § 366.26, subd. (c)(1)(B)(i).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2014, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition on behalf of the children. A.C. was five years old at the time, K.C. was three years old, and A.L.C. was 12 months old. The petition alleged that the children came within section 300, subdivision (b) (failure to protect). It specifically alleged that the children’s mother, M.S. (mother) , had a substance abuse history; father had a substance abuse history and tested positive for methamphetamines on or about May 14, 2014; and mother and father (the parents) had a prior dependency case due to substantiated allegations of general neglect, whereby they received reunification and family maintenance services from April 2011 to November 2012; the dependency was subsequently terminated.
The social worker filed a detention report stating that a referral for general neglect was received on March 8, 2014, alleging that the parents had left their 13-year-old son in charge of the children while they went out drinking. When they were gone, a cord was wrapped around A.L.C.’s neck.
The court held a detention hearing on May 19, 2014, and detained the children in foster care. The court also found father to be the presumed father of the children.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on June 16, 2014, recommending that the children be declared a sibling set and the parents receive six months of reunification services. The social worker interviewed father, who reported that he and mother got married on June 18, 2008, before K.C. and A.L.C. were born. Father had an older son from a prior relationship, and he had joint custody of him. The social worker was concerned because both mother and father adamantly denied their substance use and only admitted a problem when their test results came back positive. Father continued to test positive for methamphetamines and apparently had not made any efforts to start a program or stop using on his own. He reported that he had a history of psychiatric hospitalizations for depression and suicidal ideations. Mother and father were not living together anymore.
The social worker further reported that A.C. was diagnosed with epilepsy and was currently taking medicine twice a day. She was deemed medically fragile and was placed in a medically fragile home apart from her siblings, since she required a special level of care. K.C. and A.L.C. were placed together in a home and were doing well.
The court held a jurisdiction/disposition hearing on June 19, 2014. It sustained the petition, declared the children dependents of the court, and removed them from the parents’ custody. It also declared them a sibling set. The court ordered reunification services for the parents and supervised visitation two times a week.
Six-month Status Review
The social worker filed a six-month status review report on December 5, 2014, recommending that the court continue reunification services for another six months, that the court authorize family maintenance services upon the condition that the parents were in full compliance with their case plans, and that the court authorize unsupervised visitation.
The social worker reported that on August 28, 2014, K.C. and A.L.C. were placed in a foster home. They were removed from their previous foster home, at the caregiver’s request, due to K.C.’s behavior issues.
The social worker further reported that father had completed a parenting education course and a two-day medically fragile training course, but he failed to attend CPR and first aid training. He also completed inpatient substance abuse training, and had been referred to outpatient services.
As to visitation, the social worker reported that the parents visited weekly with the children, and the visits were appropriate.
The court held a hearing on December 18, 2014, and continued services. It also authorized unsupervised visits and return of the children on family maintenance, when appropriate.
Twelve-month Status Review
The social worker filed a 12-month status review report on June 4, 2015, recommending that the court terminate services and set a section 366.26 hearing. The social worker reported that while the parents had participated in services during that review period, they demonstrated limited benefit from them. They had still not completed their case plans, and mother continued to test positive for substances. Father asserted that he was committed to being in a relationship with mother, and they were looking for a house together.
The social worker further reported that the parents had weekly supervised visits with the children, which were generally appropriate. The parents did not progress to unsupervised visits because of positive drug tests, unstable housing, and father’s conviction of driving without a license or registration.
On August 3, 2015, the social worker filed an addendum report, stating that during a visit on July 29, 2015, father was reluctant to change A.L.C.’s diaper when she had a bowel movement. The social worker asked father about his ability to transport the children to necessary appointments. Father said he could. The social worker asked if he had a valid driver’s license, and he then admitted his license had expired and he was currently driving without a valid license or registration. The social worker discovered that father had four Vehicle Code convictions, for which he owed $3,000 in court fees.
The social worker further reported that father recently indicated he was no longer in a relationship with mother, even though they were still married. Father obtained housing in a studio and completed his substance abuse aftercare program. However, the social worker was concerned about his ability to adequately take care of the children, his lack of appropriate housing and bedding for the three girls, his willingness to drive them around without a license, his failure to demonstrate benefit from his medically fragile training, and his limited parenting skills during visits.
The court held a contested 12-month hearing on August 6, 2015, at which the parties agreed to continue the matter and provide father with an unsupervised visit within the next seven days. The parties further agreed that father should have two overnight visits before the continued hearing, on the conditions that he take affirmative steps to remedy the driver’s license situation, re-enroll in counseling services, and participate in a safe care parenting program.
The court held the continued hearing on August 25, 2016. It terminated mother’s services, but continued father’s services. The court also authorized unsupervised visits, overnight visits, and weekend visits for father.
The social worker filed another addendum report on August 25, 2015, expressing her concerns regarding father’s willingness to drive the children without a license, his failure to address his outstanding court and driver’s license issues, the lack of evidence that he re-enrolled in counseling, his failure to demonstrate sufficient benefit from his medically fragile training, and the recent return of A.C.’s anti-seizure medication from an overnight visit with the label destroyed and the bottle sticky, which indicated he had issues properly administering it. The social worker also noted that father continued to have close contact with mother, indicating he may not protect the children from being exposed to her and her unresolved substance abuse problem. Thus, the social worker recommended that father’s services be terminated and visits be supervised.
Eighteen-month Status Review
The social worker filed an 18-month status review report on November 4, 2015, recommending that the children be placed in father’s custody under a plan of family maintenance, despite her ongoing concerns. Father had completed his services. As to visitation, the social worker reported that A.C.’s foster mother said A.C. returned from an overnight visit and complained of being hungry, tired, and thirsty. Furthermore, after several visits, father returned A.C.’s medication bottle with either more or less than it should have contained, which indicated that he was not administering the prescribed amount. A.C.’s foster mother and the social worker shared concerns about father’s ability to manage three children. At one visit, the children were observed to be running around the room, screaming, yelling, and hitting each other. After another visit, A.C.’s foster mother reported that A.C. returned looking unkempt and smelly, with dirty, tangled hair.
The social worker further reported that father still had not taken steps to renew his driver’s license so he could reliably transport A.C. to her special medical appointments. Moreover, all of his tickets and court fees incurred in criminal court were still outstanding.
On December 22, 2015, the social worker filed an addendum report to change her recommendation to the termination of services. She reported that she visited father’s apartment and observed him struggling to maintain boundaries for the children. For example, A.C. tied a ribbon around K.C.’s neck. K.C. wrapped the vacuum cord around A.L.C.’s body. When the social worker asked father to change A.L.C.’s diaper after a bowel movement, he was reluctant and took a long time to change it. While he was changing it, the other girls were wrestling.
The social worker later reported that, at an announced visit on January 22, 2016, she observed father’s residence to be disorganized, with dirty laundry and trash on the floor. The refrigerator was dirty and contained little food. The shower stall had black mold growing on over half of the wall tiles, and it smelled of mildew. The children’s caregivers reported that K.C. and A.L.C. came back from the weekend visits without having a shower, and A.C. once came back sick.
The court held a contested 18-month review hearing on February 5, 2016. It terminated father’s reunification services and set a section 366.26 hearing for June 5, 2016.
On February 19, 2016, the social worker filed an ex parte application to have the court suspend father’s unsupervised weekend visits. Father reported to the social worker that he had to call 911 on February 7, 2016, because K.C. climbed up the freezer and reached the kitchen cabinet where he stored his medication and A.C.’s anti-seizure medication. K.C. took some medication and gave some to A.L.C., all while he was sleeping. The next morning, he observed that the medication was on the kitchen table, and he noted A.L.C.’s and K.C.’s unusual behavior, such as feeling dizzy, bumping into a table, and spilling milk. Father said the incident occurred during “one out of a couple” occasions when he did not use the lock box to secure the medication. A.C. confirmed that K.C. drank her anti-seizure medication and gave some to A.L.C. while father was asleep.
On March 9, 2016, the court suspended father’s visitation, but authorized supervised visitation at DPSS’s discretion. The court later ordered supervised visitation one time a week, in a public place.
The social worker filed an addendum report on April 27, 2016, and reported that father was having weekly supervised visits with the children. During a visit at a park, K.C. asked for water and later asked A.C.’s caregiver for food because she was hungry. She was told to ask her parents, but they did not come prepared with water, snacks, or diapers for A.L.C. The social worker reminded the parents it was their responsibility to bring water, snacks, and other desired items. At a subsequent visit, the parents brought soda and snacks, but allowed the children to have too much soda. As a result, A.L.C. threw up.
The caregivers reported that the children’s behavior became more negative when visiting with the parents. A.C.’s caregiver said A.C. displayed tantrums, whining, and clingy behavior during visits with father; however, she did not display such behavior at her placement home. K.C.’s and A.L.C.’s caregiver reported her observation that K.C. was disobedient and disrespectful toward her parents; however, she followed directions and guidelines at home. The social worker noted that father clearly loved his children; however, he required intervention from DPSS or the foster parents during visits to address basic parenting issues.
Section 366.3 Postpermanency Status Review
The social worker filed a report on July 26, 2016, and reported that father was unemployed, but worked odd jobs. Father and mother were living separately and planned on getting a divorce. He still did not have a valid driver’s license, and still had outstanding fines and fees on criminal matters. The social worker further reported that father was having weekly supervised visits, and that A.C. was very emotional and difficult to handle afterward. The children reported being thirsty, hot or cold, hungry, or bored, during two hour visits.
The court held a hearing on August 8, 2016. Counsel for the children requested the court to set a section 366.26 hearing, noting that they had been waiting for the parents to stabilize their situation for them to regain custody; however, they were still struggling with being able to parent, even with supervised visits. The court set a section 366.26 hearing.
Section 366.26
The social worker filed a section 366.26 report, recommending the plan of a planned permanent living arrangement, with the goal of adoption, until an adoptive home was identified. Father reported the same circumstances in his housing, employment status, and outstanding fines. Moreover, he had still not taken care of his suspended driver’s license. The social worker noted that DPSS had several prospective adoptive families that expressed their interest in K.C. and A.L.C. only. However, the adoption worker was searching for a prospective adoptive family for all three children together and was having some difficulty.
On March 21, 2017, the social worker filed an ex parte application to change the parents’ visitation from weekly visits to visits using telephone/Skype. The children were matched to a prospective adoptive family, and the prospective adoptive parents (PAP’s) completed medically fragile training for A.C. The children were placed with the PAP’s on March 8, 2017. The social worker recommended the change in visitation due to the distance of the PAP’s residence.
In another report filed on May 17, 2017, the social worker recommended that parental rights be terminated and the permanent plan of adoption be implemented. The PAP’s were capable of meeting the children’s physical, emotional, social, and medical needs. They were fully informed of the children’s psychosocial history. They enjoyed providing the children with enriching day trips and family adventures. They were described as loving, stable, and supportive, and they felt a strong connection with the children. The children told the social worker they were happy in their new home and looked forward to being adopted. The PAP’s were committed to providing the children with a permanent home.
After several continuances, the court held a contested section 366.26 hearing on September 27, 2017. Counsel for the children provided stipulated testimony. He said A.C. would testify that she would be okay if she did not see her parents anymore, and she was fine with being adopted. K.C. would testify that she did not remember having visits with the parents, but she visited with them on the computer. She would be heartbroken if she did not have visits with them. K.C. said she loved her prospective adoptive parents, but she loved her real parents more and would prefer to live with them. Counsel for the children concluded it was understandable that a child would express a desire to be with her biological parents; however, there was no indication the parents would be protective of the children in the future. Moreover, the children were at an age when they could be adopted as a sibling set, and they were doing very well with the PAP’s.
Father’s counsel contended that the beneficial parental relationship exception applied since the parents had maintained regular visitation. He argued that the court could look at K.C.’s testimony that she would be heartbroken if she did not see the parents again and determine that she would benefit from continuing the relationship. He asked the court to order the lesser plan of legal guardianship.
The court acknowledged that K.C. said she would be heartbroken, but noted it was heartbreaking any time parental rights were terminated. The court found that it would clearly not benefit K.C. in the future to continue contact with the parents. The court said it could not ignore the fact that she and the other children were flourishing with the PAP’s. Moreover, it had to consider the children as a sibling set. It concluded there was insufficient evidence to support the beneficial parental relationship exception. The court found it likely the children would be adopted and that adoption was in their best interest. It then terminated mother’s and father’s parental rights.
ANALYSIS
The Beneficial Parental Relationship Exception Did Not Apply
Father’s sole contention on appeal is that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the 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 phrase “ ‘benefit from continuing the . . . relationship’ ” refers to a parent/child relationship 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 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 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
“There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, “[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” (Ibid.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of his position, father asserts that he had extensive visitation with the children throughout the case that maintained their bond. He also claims that foster care had a negative effect on the children, especially A.C. He asserts that she, as well as A.L.C., had extreme behavior problems that led to multiple placements. In contrast, visits with him had a positive effect on the children. He claims he was able to apply the necessary skills learned in his safe care training class in his home with the children, and that he put their needs first. Father further claims he was able to properly address the situation when the children accessed A.C.’s medication by calling 911, speaking to the paramedics, and speaking with poison control.
Father additionally asserts that the children showed affection toward him at visits, sought guidance from him when sibling issues arose, and provided emotional comfort to them by asking about their feelings. He points out that K.C. loved the PAP’s, but loved her biological parents more and would cry at the end of visits.
Father’s interactions with the children do not even begin to demonstrate that his relationship with them promoted their well-being “to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Contrary to his claim that visits had a positive effect on the children, the caregivers reported that their behavior became more negative when visiting with the parents. A.C. displayed tantrums, whining, and clingy behavior during visits with father; however, she did not display such behavior at her placement home. K.C. was disobedient and disrespectful toward father during visits; however, she followed directions and guidelines at home. When father was allowed to have overnight visits, A.C. returned to her foster home hungry, tired, and thirsty. After another visit, she returned looking unkempt and smelly and had dirty, tangled hair. K.C. and A.L.C. came back from the weekend visits without having a shower, and A.C. came back sick after one visit.
As to father’s other claim that he was able to apply what he had learned from his services, the record shows otherwise. After several overnight visits, he returned A.C.’s medication bottle with either more or less than it should have contained, which indicated he was not administering the prescribed amount. Moreover, his overnight visits were suspended after he failed to use a lock to secure the kitchen cabinet where he kept medication. K.C. climbed up and grabbed A.C.’s anti-seizure medication. She took some of the medication and then gave some to A.L.C., all while father was sleeping.
We further note that father has not proffered any evidence to support a finding that the children had a “substantial, positive emotional attachment [with him] such that the child[ren] would be greatly harmed” if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although there was stipulated testimony that K.C. said she would be sad if she did not have visits with her parents, and she preferred to live with them, she also said she did not remember having visits with them. She only remembered visits on the computer (e.g., Skype). A.C. said she would be okay if she did not see her parents anymore and was fine with being adopted.
Finally, the record shows that the children told the social worker they were happy in their new home and looked forward to being adopted by the PAP’s. The PAP’s were loving, stable, and supportive, and they felt a strong connection with the children. They were capable of meeting the children’s physical, emotional, social, and medical needs and were committed to providing all three of them with a permanent home.
We conclude that father failed to meet his burden of showing the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), applied.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


SLOUGH
J.