Filed 10/25/18 In re Michael B., Jr. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Father Michael B., Sr. appeals an order of the juvenile court terminating his parental rights to his son, Michael B., Jr. He argues the court erred in failing to apply the beneficial parent-child relationship exception to termination (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). [1] We conclude there was no error, and we affirm.

BACKGROUND

The Family and the Petition

Father Michael B., Sr. (Michael Sr.) and mother S.B. married in 2007. Michael B., Jr. (Michael Jr.) was born three years later. While Michael Jr. was S.B.’s and Michael Sr.’s first child together, S.B. had three other children, all of whom had been the subject of dependency proceedings. Her daughter lived in the full custody of the girl’s father, and her two older sons had been adopted by her cousin after parental rights had been terminated.[2]

The relationship between Michael Sr. and S.B. was fraught with substance abuse (primarily S.B.’s) and domestic violence, prompting concerns over Michael Jr.’s safety and, correspondingly, four referrals to the San Mateo County Human Services Agency (Agency) between December 2014 and June 2015.

On June 17, 2015, three weeks after Michael Jr.’s fifth birthday, the Agency filed a section 300 petition alleging S.B. placed Michael Jr. at a substantial risk of harm due to her chronic substance abuse, her failure to adequately supervise him, her refusal of voluntary services, and her volatile interactions with Michael Sr. The petition also alleged that S.B.’s parental rights to her two oldest children had been terminated in 2000 after she failed to reunify with them. As to Michael Sr., the petition alleged he was aware S.B. had a chronic substance abuse problem, yet he failed to ensure Michael Jr. was adequately cared for and, further, his emotional volatility placed Michael Jr. at a substantial risk of harm.

Michael Jr. was not detained from his parents. At a July 7 uncontested jurisdiction/disposition hearing, the court sustained the allegations in the petition, declared Michael Jr. a dependent, and ordered family maintenance services for both parents.

Six-month Review

During the six-month review period, Michael Sr.’s participation in family maintenance services was minimal.[3] Nevertheless, at a January 7, 2016 six‑month review hearing, the court continued Michael Jr. in the home with his father under family maintenance services. It ordered S.B. out of the home, however, because she was using drugs and not engaging in services.

On March 1, counsel for Michael Jr. filed a section 388 petition seeking to have Michael Jr. detained from his father. The request was prompted by a report that S.B., who had tested positive for methamphetamine and was not in treatment, had violated the court’s stay-away order and had stayed in the home with Michael Sr. and Michael Jr. The Agency disagreed with this request. It acknowledged that Michael Sr. had in fact allowed S.B. into the home during the day when Michael Jr. was not there, but it nevertheless recommended that Michael Jr., who was being well cared for, remain in his father’s custody. The court denied the petition.

The Agency’s Section 387 Supplemental Petition

On May 25, 2016—nearly a year after the initial petition was filed—the Agency removed Michael Jr. (now six years old) from Michael Sr.’s care, having learned that the previous day, Michael Jr. had witnessed a physical altercation between his parents in the family home that resulted in Michael Sr.’s arrest. Michael Jr. was placed in the home of S.B.’s aunt who also cared for his half-brothers.

The Agency filed a section 387 supplemental petition seeking a more restrictive placement, alleging that despite that S.B. was ordered out of the home on January 7, Michael Sr. had allowed her to reside in the home and had also left Michael Jr. in her care. They had engaged in ongoing altercations in Michael Jr.’s presence, and their pattern of violent and neglectful behavior placed him at substantial risk of physical and emotional harm.

On May 31, the court ordered Michael Jr. detained from Michael Sr. and ordered weekly visitation for both parents.

In its jurisdiction/disposition report on the supplemental petition, the Agency advised that Michael Sr., who had spent 12 days in jail on a domestic battery charge, had minimally engaged in court-ordered services and had violated the court’s order by allowing S.B. to reside in the home, jeopardizing his ability to maintain Michael Jr. in his care. He also had nine positive tests for marijuana since January 7. However, he did not meet the criteria for bypass of services so the Agency recommended reunification services for him and bypass of services for S.B.

On August 26, the Agency filed an addendum to its section 387 jurisdiction/ disposition report, informing the court that two weeks earlier S.B. had given birth to her and Michael Sr.’s second child, a baby boy who was two months premature and positive for amphetamines at the time of his birth. He was taken into protective custody and detained.

At a contested jurisdiction/disposition hearing on August 31, the court sustained the allegations in the section 387 supplemental petition and adopted the Agency’s recommendation that it bypass services as to S.B. but order reunification services for Michael Sr.

Six-month Review on the Section 387 Petition

By the time of the six-month review, Michael Sr. was making progress on his case plan, having completed multiple components of it while working to complete others. He denied having contact with S.B. during the review period, although she repeatedly violated a restraining order he had against her by attempting to contact him. He had consistently visited Michael Jr., with the Agency describing the visits as follows: “The father actively identifies child friendly places in the community for visits to occur. Michael Jr. usually looks forward to his time with [Michael Sr.]. The father is active during visits and shows affection towards Michael Jr. He plays with the child, asks the child about school and ensure[s] that Michael Jr. brushes his teeth and takes his vitamins during visits. Michael Jr. often has difficulty separating from the father when visits come to an end and becomes sad. The child often refuses to end visits and makes up different requests to try and prolong his time with [Michael Sr.]. The father sometimes expresses frustration and loses his patience with Michael Jr. when the child does this.” Michael Jr. consistently expressed to the social worker a desire to be with his father, and the Agency was considering increasing the frequency and duration of their visits.

At a February 28, 2017 six-month review hearing, the court continued Michael Sr.’s reunification services. It increased his visitation to two times per week and granted the Agency discretion to move the visits to monitored/facilitated and eventually unsupervised.

12-month Review Report on the Section 387 Petition

The Agency’s July 6, 2017 12-month status report informed the court that on May 2, a social worker spoke with Michael Sr. and S.B., who reported they had reconciled and were living together at Michael Sr.’s residence. The social worker had told them they were in violation of the restraining order protecting Michael Sr. and Michael Jr. from S.B. and ordering S.B. to stay away from the home.

Eight days later, Michael Sr. told the social worker he had made a mistake in allowing S.B. to return to the home, as he believed she was still using drugs. He expressed regret over this mistake and hoped it would not ruin his chance of reunifying with Michael Jr. He stated he was “ ‘done’ ” with S.B. and would be asking her to move out immediately.

Despite this, on June 13, Michael Sr. told the social worker S.B. was still living with him and he intended to request that the restraining order be terminated. He claimed he and S.B. had not had any issues since reconciling, she was clean and sober, and they got along as long as she refrained from drug use. Six days later, Michael Sr. vacillated, telling the social worker he was not going to have the restraining order terminated after all because he was concerned S.B. was using drugs. He again claimed to have “ ‘messed up by letting her in,’ ” and again claimed he was going to ask her to leave. The following day, he called the police when she tried to enter his house, and she was arrested.

As to Michael Jr., he remained in the home of his great aunt. She reported he was doing very well and was welcome in the home for as long as necessary. Her adult daughter, who adopted his two half-brothers, was willing to adopt him if it came to that. The social worker had asked Michael Jr. where he would prefer to live, and he answered, “ ‘with my dad.’ ” The social worker reminded him of the circumstances that led to his removal, and he immediately brought up memories of his parents fighting and his father choking his mother, which made him sad.

Michael Sr. continued to make significant progress on his case plan and maintain regular visitation. He expressed a desire to be reunified with Michael Jr., claiming he no longer had any contact with S.B. and only needed to get his finances in order.

The Agency concluded that termination of services was warranted, reasoning as follows: “The Agency continues to be concerned about the father’s poor judg[]ment and what appears to be self-sabotaging behavior when reunification with Michael Jr. appeared to be near. Although the father now reports that he and the mother are no longer together, it does not appear that he has truly benefited from services given his willingness to resume a relationship with the mother in spite of her lengthy history of untreated substance abuse, and with whom he has had a highly conflictual, unstable and volatile relationship. In the few months that the parents had reconciled [Michael Sr.] vacillated between wanting to end the relationship and have the police come and escort the mother out of the home, to stating that he was going to remain with the mother and dissolve the Restraining Order. This level of instability is unhealthy and places an emotional risk to Michael Jr. [Michael Sr.] has been receiving Court ordered services to ameliorate these issues since 2015. Yet, it seems that the reasons that led to Michael Jr.’s removal remain present and return of the child to the care of the father is not in the child’s best interest. It is important to note that on June 19, 2017, the Court terminated reunification services to the father regarding Michael Jr.’s brother . . . due to these very concerns.”

Report of Michael Jr.’s Court Appointed Special Advocate

On July 11, Michael Jr.’s court appointed special advocate (CASA), Kelly Martin, submitted a report. She described Michael Jr. as a “very social, curious and active child” who can be “extremely gregarious with friendly adults, and thrives on attention

from caring adults around him.” According to Martin, at the beginning of the school year—when Michael Jr. was still having visits with S.B.—his school counselor and teacher reported that he was “a bit withdrawn and emotionally fragile,” but he had become more emotionally stable since the visits were terminated. In his placement, he seemed content and satisfied with his routine and home life. He spoke often about his half-brothers and was “well-cared for” and “loved dearly” by his extended family members. He was attending individual therapy, as well as family therapy with his father “to address the range of emotional, social, and cognitive challenges he is experiencing.”

Addendum to the Agency’s 12-month Report

On August 15, the Agency filed an addendum to its July 6 12-month report. Michael Jr.’s therapist reported that he was doing well in therapy, and she was focusing on his relationship and interactions with his father. She believed “there is definitely an attachment and connection between Michael Jr. and his father,” and she had no concerns about Michael Jr.’s contact with his father.

At an August 18 12-month review hearing, following an off-the-record conference, Michael Sr. submitted the matter, and the court terminated his services, setting a section 366.26 permanency hearing for December 18 and reducing his visits to one hour per week.

Section 366.26 Report and Letters

On November 19, in anticipation of the section 366.26 hearing, Michael Sr. submitted a letter to the juvenile court addressing his relationship with Michael Jr. He outlined the many classes and programs he had completed to improve his parenting skills and reunify with Michael Jr. and said his son had asked when he would be able to come home. He described teaching Michael Jr. how to count, recite the alphabet, and ride a bike, and taking him to preschool, speech therapy, and kindergarten.

On December 8, the Agency filed a section 366.26 report recommending that the court find Michael Jr. adoptable and terminate parental rights. S.B.’s aunt, who had cared for Michael Jr. since his May 25, 2016 removal from Michael Sr.’s care, was unable to adopt him due to her age, but her adult daughter, who adopted Michael Jr.’s two half-brothers, was willing to adopt him. According to the Agency, Michael Jr. is bonded with her and was thriving under her care.

The Agency also reported that Michael Jr. had been visiting with Michael Sr. and was excited after the visits. The Agency did not intend to pursue a post-adoption visitation agreement, but the cousin was willing to maintain supervised visits as long as it was beneficial to Michael Jr.

On December 12, CASA Martin filed another report in which she recommended continued visitation. She noted that during the school year, which began soon after the August termination of Michael Sr.’s reunification, Michael Jr. had become “more withdrawn and even somber” and that “his demeanor tends more towards sadness and seriousness than it used to.” His teachers had also noticed “a significant change in his behavior.” He was functioning below grade level, and the school believed he should be assessed for attention deficit disorder, which could explain his learning difficulties and could also, according to CASA Martin, explain his emotional and behavioral struggles.

Michael Sr.’s Trial Brief

On December 18—the day of the section 366.26 hearing—Michael Sr. submitted a trial brief in which he urged the court to apply the beneficial parent-child relationship exception to termination of parental rights. He argued that he had maintained regular visitation and thus satisfied the first prong of the exception. As to the second prong—that the child would benefit from continuing the relationship with the parent—Michael Sr. argued he and Michael Jr. shared a strong parent/child bond: “The child was at home with the parents for the first six years of his life. Since Michael Jr. was detained the father has had regular weekly visits with the child; Michael Jr. looks forward to his visits with his father; the father actively identifies child friendly places in the community for the visits. The father is active during the visits and shows affection towards Michael Jr. He plays with the child, asks him about school and makes sure that Michael Jr. takes his vitamins and brushes his teeth. Father has demonstrated that he fills a parental role and is more than a loving friend or relative.”

Section 366.26 Permanency Hearing

On December 18, the matter came on for a contested section 366.26 permanency hearing. Social worker Aldo Quintero, who had been the social worker on the case for about one and a half years, was the first witness and testified as follows:

For the first year of his life, Michael Jr. had been in the care of both of his parents. After that, Michael Sr. was his primary caregiver until May 2016. Since then, Michael Sr. had visited his son on a weekly basis, initially for one hour and then one and a half to two hours. Mr. Quintero had supervised at least half of the visits and never observed any problems, nor had he received reports of problems from the staff who supervised the remaining visits.

The visits took place at various locations in the community, typically at places that were fun for Michael Jr., such as libraries, parks, or the mall. At the beginning of visits, Michael Sr. and Michael Jr. would hug and talk to each other, with Michael Sr. displaying affection for his son. During library visits, they would read together. Michael Sr. would also assist Michael Jr. with his hygiene during visits, bringing a toothbrush and demonstrating how to use it properly. The visits were “pretty positive,” with Michael Sr. “focused on giving [Michael Jr.] attention, playing with him, seeing what he needs, give him stuff to eat.” On occasions when Michael Jr. acted up, Michael Sr. “did his best to handle that behavior” and “[u]sually handled it well.”

Michael Jr. referred to Michael Sr. as “dad” or “daddy” and was “[u]sually pretty positive towards his dad.” He enjoyed his father’s affection and attention. Asked to describe the relationship, Mr. Quintero said, “I think at this point Michael Jr. sees his father in a positive light. He looks forward to his visits. I think Michael Sr. also looks forward to his visits with Michael Jr. It seems like a positive relationship between the two.”

Michael Jr. had lived with his great aunt for the year and a half since his removal, and she had been providing his day-to-day care during that time. His cousin, who had adopted his two half-brothers, had been identified as his adoptive parent. One of the half‑brothers still lived with her, so Michael Jr. would live with a half-sibling. Mr. Quintero described the family this way: “[E]veryone in the house is very loving towards Michael, very positive towards Michael and willing to adopt, willing to care for Michael long term, Michael showing affection towards them as well and seems like a very consistent presence in his life.”

Michael Sr. testified next, as follows:

Michael Jr. had lived with him for the six years preceding the dependency and he was the primary caregiver during that time. He taught him the alphabet and how to count, helped him with reading, and attended school events.

At the time of the hearing, Michael Sr. was visiting with Michael Jr. one to two hours a week. At the beginning of a visit, Michael Sr. would give his son a big hug and ask how he was doing and how school was going. During visits, he imparted values on Michael Jr., like how to share and be considerate of others. He taught him to say grace, hold the door open for others, and how to tie his shoes. There were occasions during visits when Michael Jr. would act out a bit, and Michael Sr. would give him consequences if he did not behave and reward him if he did. He would also make sure Michael Jr. took his vitamins.

Mr. Quintero let him choose the location of each visit, and he always chose places that were either educational or entertaining. Places they visited included a trampoline park; a Halloween balloon park, where they would take pictures and get a pumpkin; Chuck E. Cheese, where they would have pizza and Michael Jr. would play video games with other children; and the park, where Michael Sr. would push Michael Jr. on the swings or Michael Jr. would play with other children. They would also go to the library, where they would read together, do computer games, and learn how to use a 3D printer.

At the end of some visits, Michael Sr. had difficulty convincing Michael Jr. to get in the social worker’s car because he did not want the visit to end. He made a point of always telling his son he loves him, believing it important he heard him say that every day. Michael Jr. would respond that he loves him, too.

Following this testimony, the court observed that the case presented “a unique set of facts” because Michael Jr. was seven years old and had lived with his father for six years, which “is a lot of time for a young child.” The court was also concerned about the CASA’s observation that Michael Jr. had become more withdrawn and somber, was speaking and smiling less than before, and was also experiencing behavioral and learning difficulties at school. The court questioned whether some of these emotional and behavioral changes could be due to his separation from his father, and further questioned whether the matter should be continued for a bonding study to assess the father-son relationship. The court also queried whether anyone had explored the possibility of ordering a guardianship rather than termination and adoption. Lengthy argument on the applicability of the beneficial relationship exception to termination then ensued.

Michael Sr.’s counsel argued there was a significant bond between his client and Michael Jr. such that parental rights should not be terminated. He reiterated that Michael Sr. was Michael Jr.’s primary caregiver for the first six years of his life and

there was a bond between them. Further, according to counsel, Michael Sr. “would

very much act as a parent to the child. He taught him how to read, to count, do numbers, all the things that a parent normally does. And I think he continues to do—function as a—in a parental role towards Michael during the visits. [¶] He’s certainly reactive in selecting the locales for the visits. He pays attention to educational aspects of it as well as fun. So those are clearly positive things. The father expresses concern about his

son’s well-being and is very interested in the supplements and vitamins to keep him clear and level headed. And the Court does have to consider the age of the child. This is a seven-year-old now, and a portion of the time that the child has spent with the parent and that’s substantial. It’s about six years. And it’s pretty clear that there is a positive interaction between the father and the child.”

Michael Sr.’s counsel also pointed out that the Agency had been prepared to return Michael Jr. to his father but this was derailed by Michael Sr. reuniting with S.B. He subsequently acknowledged this was a terrible mistake based on false hope that S.B. had dealt with her drug problem and was addressing her mental health issues. He had since filed for divorce and was abiding by the no-contact order.

S.B’s counsel also advocated for application of the beneficial relationship exception, observing that Michael Jr. had spent six years with his father, there was “strong evidence” of a “strong[, . . .] beneficial relationship,” and termination would be “a huge mistake” for Michael Jr. She believed a bonding study would be helpful. She did not believe Michael Jr.’s recent behavioral changes had to do with his placement but rather with the impending termination of his relationship with Michael Sr. and felt that needed to be explored before terminating the relationship.

Counsel for the Agency disputed the appropriateness of a bonding study. She argued that the permanency hearing was the time to introduce evidence regarding the father/son bond and the case should not be dragged out any longer to allow for a bonding study. The CASA’s report underscored the need for permanency and stability, and county counsel believed adoption was appropriate at that time. The Agency had established that Michael Jr. was adoptable, the home was a good placement, and visitation with his father would likely continue. This shifted the burden to Michael Sr. to establish the applicability of the beneficial relationship exception, but he did not submit a bonding study or request a continuance to obtain one, having submitted his trial brief raising the issue a half hour before the hearing.

Counsel for Michael Jr. believed Michael Sr. was “well-intentioned” and loved his son but pointed out that the case had been going on for years, which had been hard on Michael Jr. When he had been in his father’s care, there were repeated instances of his father reuniting with his mother. Additionally, Michael Jr. had lived in his great aunt’s home for a year and a half but the behavioral changes had been recent and thus were not likely due to the separation from his father or issues in the aunt’s home. Counsel also noted that the relatives are supportive of Michael Jr.’s relationship with his father and would permit continued visitation between the two. Finally, counsel agreed that Michael Jr. needed stability, which did not exist with his father because he kept reconciling with S.B. and engaging in physical violence in front of his son.

CASA Martin reiterated that Michael Jr. had become more stable since he was placed in his great aunt’s home, although she agreed it was important for him to continue having a relationship with his father, which the adoptive family was willing to do.

In one final remark, noting all the comments that Michael Jr. was in a stable

home, Michael Sr.’s counsel clarified that Michael Sr. was not asking for his son to be returned to his care, only that parental rights not be terminated and that the court select either long-term foster care in the current placement or a guardianship as the permanent plan.

At the conclusion of argument, the court concurred with county counsel that the section 366.26 hearing had been set for several months and all evidence should have

been submitted by then. It then turned to the elements of the beneficial relationship exception, noting that the first prong—regular visitation—had been met. The second prong, it found, had not: “I also have to find substantial evidence that terminating the parental rights would be detrimental to the child. And while, as I said, I think there is a relationship, obviously, between Michael and his dad, and it appears to be close, I can’t say based on the evidence that was presented today before me, that terminating his parental rights would be detrimental to Michael. I can guess, and I can say that there

are some things that I would have liked more evidence on, but today is the date for the

2-6 hearing.”

Accordingly, the juvenile court terminated the parental rights of Michael Sr. and S.B. to Michael Jr. and ordered adoption as the permanent plan.[4]

This timely appeal followed.

DISCUSSION

The Law Governing the Beneficial Parent-child Relationship Exception to Termination of Parental Rights

At the section 366.26 permanency hearing, the juvenile court’s task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1)); In re Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights and order the child placed for adoption, unless it finds termination would be detrimental to the child under one or more of the statutorily specified exceptions. (§ 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) One such exception is the beneficial parent-child relationship exception, which provides that the juvenile court cannot terminate parental rights where it “finds a compelling reason for determining that termination would be detrimental to the child” because 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).) This has been described as a two-prong analysis: “The first prong inquires whether there has been regular visitation and contact between the parent and child. [Citation.] The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. [Citation.]” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.)

The “benefit” necessary to trigger the beneficial relationship exception is not statutorily defined. It has been judicially construed, however, to mean that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. 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.) The

overriding concern is whether the benefit gained by continuing the relationship between the parent and the child outweighs the benefit conferred by adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314­–1315; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155–1156.) Factors to be considered when determining whether a relationship is sufficiently strong and beneficial to outweigh the benefit of adoption include: “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 937–938.)

The parent seeking to prevent termination of his or her parental rights by asserting the beneficial relationship exception bears the burden of proving the applicability of the exception by a preponderance of the evidence. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re Valerie A. (2007) 152 Cal.App.4th 987, 998.)

Standard of Review

As Michael Sr. correctly notes, there is a lack of consensus regarding the

standard of review applicable to a juvenile court ruling rejecting a claim that an exception to adoption applies. For example, some appellate courts have reviewed the challenged decision for substantial evidence. (See, e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) Others have applied an abuse of discretion standard. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) And still others are of the view that appellate review of an adoption exception incorporates both the substantial evidence and abuse of discretion standards. (See, e.g., In re Breanna S. (2017) 8 Cal.App.5th 636, 647; In re K.P. (2012) 203 Cal.App.4th 614, 621–622; In re Bailey J., supra, 189 Cal.App.4th at pp. 1315–1316; In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1528.) The court in In re J.C., supra, 226 Cal.App.4th at pp. 530–531 explained the hybrid standard this way: “ ‘Since 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.’ [Citation.]

The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes ‘a “compelling reason for determining that termination would be detrimental” ’ to the child. [Citation.] This “ ‘ “quintessentially’ discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption,” is appropriately reviewed under the deferential abuse of discretion standard.’ [Citations.]” We are persuaded the hybrid standard is the proper one, and that is the one we shall apply.

The Juvenile Court Did Not Err in Terminating Michael Sr.’s Parental Rights Instead of Applying the Beneficial Parent-child Relationship Exception to Termination

There is no question here that the first prong of the beneficial relationship exception—regular visitation—was supported by substantial evidence. Without

question, Michael Sr. maintained a solid visitation record over the course of the dependency proceeding, regularly visiting Michael Jr. from his removal in May 2016 until the section 366.26 hearing in December 2017. We thus turn our focus to the second element—whether Michael Jr. would benefit from continuing that relationship. (§ 366.26, subd. (c)(1)(B)(i).) As noted, this element asks whether the relationship promotes the child’s well-being to such a degree that it outweighs the well-being he would gain in a permanent, adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We conclude the juvenile court did not abuse its discretion in finding that Michael Sr. had not met his burden of proving that Michael Jr. would benefit enough from continuing a relationship with him to justify foregoing the permanency offered by adoption.

It is true that Michael Jr. was six years old when he was removed from Michael Sr.’s care and thus had spent a significant amount of time in a parent-child relationship with him. Moreover, we acknowledge the evidence that Michael Sr. and Michael Jr. shared a bond and that Michael Jr. looked forward to spending time with his father. As Michael Sr. testified at the section 366.26 hearing, and as is highlighted in his opening brief, their visits were positive, they enjoyed seeing each other, and Michael Jr. sometimes did not want visits to end. But a positive relationship is not enough. To overcome the preference for adoption, Michael Sr. had to demonstrate that Michael Jr. would be greatly harmed by severing the parent/child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) He could have timely requested a bonding study to help him satisfy his burden, but he did not avail himself of this opportunity prior to the section 366.26 hearing, when all evidence relevant to termination was due. While a bonding study is not a prerequisite to application of the beneficial relationship exception, such a study may have enlightened the court on other aspects of the father/son relationship. Without it, the record before us shows that prior to the dependency proceeding, Michael Jr. experienced significant tumult due to S.B.’s substance abuse problems and the domestic violence between his parents, violence that often occurred in his presence. Michael Sr. was afforded the chance to eliminate this tumult and provide his son a safe and stable upbringing when the court ordered S.B. out of the home. Rather than doing so, however, he repeatedly engaged with S.B., reuniting with her after he had made significant progress on his case plan and reunification with Michael Jr. appeared likely. Just months before the 12-month review hearing, he was still choosing his unhealthy relationship with S.B. over the welfare of his son.

On the other hand, since his removal from his father’s care, Michael Jr. has been in a loving home with relatives to whom he is clearly bonded. This placement—which includes a great aunt, a cousin, and a half-sibling—appears to be excelling at meeting all of his needs. And these relatives recognize the positive relationship between Michael Jr. and his father and intend to maintain visitation. After all these years of turbulence, Michael Jr. deserves a permanent, safe, and reliable environment in which he is afforded the best possible opportunity to grow into a healthy adult. In light of this, Michael Sr. has not shown that the juvenile court abused its discretion in terminating his parental rights rather than applying the beneficial parent-child relationship exception to termination.

DISPOSITION

The order terminating Michael Sr.’s parental rights to Michael Jr. is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

A153263; San Mateo Human Svcs. v. M.B.