Filed 6/20/22 In re L.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

The father in this dependency proceeding appeals the decision to terminate his parental rights and select adoption as the permanent plan for five-year-old L.M. Finding no abuse of discretion, we will affirm the juvenile court’s order.

1. BACKGROUND

L.M., along with two half-siblings, was taken into protective custody by the Department of Family and Children’s Services in June 2019. He was two years old and living with an aunt and uncle after his mother dropped out of residential drug treatment with the children. Her continued methamphetamine use and termination of treatment prompted the Department to take custody of the children.

The Department filed a dependency petition. The petition alleged that L.M.’s mother was unable to care for him and that the whereabouts of his father were unknown. Several days after the initial detention hearing, L.M.’s father learned of the proceedings and contacted the assigned social worker.

The father had been incarcerated and had seen L.M. on only two occasions—once shortly after birth and again around L.M.’s first birthday. He expressed interest in obtaining custody of L.M. The social worker arranged for a visit at a park. L.M. seemed to enjoy it and was comfortable around his father. Over the next several months, the social worker tried to contact the father to assess his suitability to take custody of L.M. The social worker called the father numerous times, sent a letter, and went to his house, but could not reach him. Investigation revealed he had an extensive criminal record, mostly drug possession offenses.

The social worker eventually did meet with the father in August 2019, and he explained he had been avoiding contact because he did not want to “deal with the system.” He denied any recent drug use but refused to take a drug test. The social worker scheduled a visit for the father with L.M. The father did not arrive, and called 40 minutes after it was scheduled to begin to ask for the location. The visit was rescheduled for the next day, but the father called that morning to cancel, saying he had too many things to do at home.

The juvenile court conducted a jurisdiction hearing in August 2019, which the father did not attend. The court found L.M. to be a juvenile dependent, removed him from parental custody, and ordered reunification services for both the mother and father. At the six-month review hearing in February 2020, the social worker reported that the father had moved to Sacramento, was not maintaining contact with the Department, and had not visited L.M. since August. The juvenile court terminated reunification services for the father and ordered continued services for the mother.

L.M. and his siblings had been placed in foster care, and he was reported to be doing well. The foster parents had a stable relationship and home life and wanted to adopt all three children.

At the 12-month review hearing in August 2020, the social worker reported the father had been engaging in regular virtual visits (by video call) with L.M., and they had had nine such visits over several months. L.M., who was thriving in his foster placement, always enjoyed and looked forward to them.

At the 18-month review hearing, the social worker recommended termination of the mother’s reunification services. The mother ultimately did not contest that recommendation. The juvenile court set a hearing to select a permanent plan for L.M. The court also ordered that the father could have one in-person visit per month with L.M. and two virtual visits per month.

The permanent plan selection and implementation hearing took place in September 2021. L.M. was by that time four years old and had lived with his foster parents for almost two years. The father had weekly contact with him for several months through video visits and telephone calls, and they also had several in-person visits. The visits were supervised by L.M.’s foster parents. L.M. enjoyed the time with his father, and called him either “dad” or by his first name. L.M. easily transitioned back to his foster parents when the visits ended. The social worker opined that L.M. had a strong bond with his foster parents. Being placed together with his maternal half-siblings provided a “sense of security and sense of permanency.” The social worker recommended adoption as the permanent plan for L.M.

The father disagreed that adoption was appropriate. He filed a petition under Welfare and Institutions Code section 388, asserting changed circumstances entitled him to an order placing L.M. in his custody under a family maintenance plan. The father said his initial resistance to being involved in the dependency proceedings was a mistake and he was now willing to undergo regular drug testing and do whatever was necessary for L.M. to be allowed to live with him. He described his positive interactions with L.M. during visits, and how L.M. told him “you’re my dad,” and called him “dad.” He also said he received messages from L.M.’s foster parents about L.M. wanting to talk to him. The father argued that adoption was not appropriate because the beneficial parental relationship exception provided for by Welfare and Institutions Code section 366.26, subdivision (c)(1)(B) should be applied and his parental rights should not be terminated.

The juvenile court found no changed circumstances warranting modification to previous orders and denied the father’s petition. The court also determined that the components of the beneficial relationship exception were not established by the evidence. It terminated the father’s parental rights and selected adoption as the permanent plan for L.M.

2. DISCUSSION

The father contends the juvenile court erred by not applying the beneficial relationship exception to avoid termination of his parental rights. That exception applies where “the parent has maintained regular visitation and contact with the child, the child would benefit from continuing the relationship, and termination of that relationship would impose a detriment on the child.” (In re Caden C. (2021) 11 Cal.5th 614, 625.) The parent must show “(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (Id. at p. 631. Italics omitted.) We review the juvenile court’s findings on the first two elements for substantial evidence. (Id. at p. 639.) We review the juvenile court’s decision on the third element—whether termination of parental rights would be detrimental to the child—for abuse of discretion. (Id. at p. 640.)

The juvenile court determined the father did not prove any of the three required elements. As to the first two, substantial evidence supports the determination that the father had not engaged in regular visitation and did not have a parental relationship with L.M.: the father initially actively avoided visitation, and he never occupied a parental role in L.M.’s life. But even without substantial evidence to support those findings, we still would not reverse the juvenile court’s decision because its conclusion that termination of parental rights would not be detrimental to L.M. was not an abuse of discretion. A court abuses its discretion when it exceeds the boundaries of what is allowed by the relevant legal standard, and instead makes an arbitrary or “patently absurd” determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) That highly deferential standard prevents a reviewing court from substituting its own judgment about what is in the child’s best interests for the juvenile court’s determination on that front. (In re Caden C., supra, 11 Cal.5th 614, 641.)

The beneficial relationship exception applies only where the harm to the child from severing a substantial emotional attachment with a parent outweighs the significant benefit the child will experience from placement in a stable adoptive home. (In re Caden C., supra, 11 Cal.5th 614, 1107.) Here, L.M. saw his father twice before the dependency proceedings began, and never lived with him. Although the father ultimately established a visiting relationship with L.M., by the time of the selection and implementation hearing L.M. had been thriving in a foster placement for nearly two years—half of his life. The social worker opined that L.M. had a strong bond with his foster parents and was benefiting from the stability of living with them and his siblings. On this record, we see no abuse of discretion in concluding that any detriment to L.M. from severing the relationship with his father does not outweigh the benefit he would get from a stable, permanent home.

The father emphasizes that L.M. enjoyed their visits, called him “dad,” and identified him as one of the important people in his life (along with his foster parents). We not only acknowledge those facts, we commend the father for regaining stability in his life and developing a relationship with L.M. But we cannot substitute our judgment for that of the juvenile court, and the evidence of the father’s relationship with L.M. does not render unreasonable the juvenile court’s decision. The juvenile court did not abuse its discretion in finding that, on balance, L.M. would be benefitted more from being adopted than he would be disadvantaged by not having a continued relationship with his father.

3. DISPOSITION

The order is affirmed.

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Grover, J.

WE CONCUR:

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Greenwood, P. J.

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Lie, J.

H049460-In re L.M.; DFCS v. D.M.