Filed 6/21/22 In re M.C. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A.C. (father) appeals from an order terminating his parental rights as to his child, M.C. (minor) at a hearing under Welfare and Institutions Code section 366.26.[1] Father argues the juvenile court should have applied the beneficial relationship exception to the presumption favoring adoption and termination of parental rights. We find no error and affirm.

BACKGROUND

Much of the background of this case is set forth in a prior opinion, so we limit our factual review to those facts directly relevant to father’s argument. (L.B. v. Superior Court of Contra Costa County (April 5, 2021, A161673) [nonpub. opn.].)

The minor was born in November 2010. The juvenile court assumed jurisdiction over the minor in June 2018 based in part on allegations by the Contra Costa County Children and Family Services Bureau (Bureau) that father was unable to regulate his aggressive emotional outbursts and to understand the impact of these outbursts on the minor. In August 2019, the juvenile court also assumed jurisdiction over the minor based on allegations in a supplemental petition that alleged that father had struck mother many times in the past, raped her about a month earlier, punched her in the head, intentionally hit her head on the car when helping her out of the car, and broke her cell phone in half and threw it at a wall. The juvenile court placed the minor in a foster home.

Father visited the minor weekly, and the social worker believed the visits showed that he and the minor had a deep, affectionate bond. He behaved lovingly and appropriately during visits. Father engaged the minor in a variety of topics of mutual interest, primarily video games. After the first visit, the minor told the social worker that he missed his parents.

At the disposition hearing on the supplemental petition in November 2019, the juvenile court reduced visits to two one-hour visits per month. At one visit in November 2019, father told the minor that mother was dumb. Father also cried during that visit, and the minor cried on the drive back to the foster home. At a visit in January 2020, father asked the minor why he had not called father, and the minor shrugged his shoulders. In February 2020, mother had injuries on her face and a broken tooth during a visit, and the minor asked her what happened. Mother tried to explain, but father stopped her and told the minor mother fell again. The minor asked mother again what had happened, and mother shook her head and said she did not want to talk about it. At the next visit, father picked up mother and dropped her in a wheelchair without locking the wheels, which could have resulted in a fall.

Starting in March 2020, the visits transitioned to video visits due to the pandemic. The video visits and phone calls mostly remained appropriate, although at one point father promised the minor a video game system when he came home, which violated a rule that parents not talk about children coming home. During a phone call in April 2020, father began to cry, after which the minor began to cry and the call had to be ended. The minor then isolated himself in his room for a couple hours after the call.

In April 2020, the minor’s foster mother said the minor was allowed to call his parents whenever he wanted but calls occurred approximately twice per month. The minor often talked about video games on the calls, and there was laughing and joking.

In May 2020, the social worker observed that father and the minor interacted positively but that the minor was resistant to talking about his feelings about his parents and was only able to do it on a surface level. The social worker concluded that the minor had a bond with father and talked at length with father about things the minor was interested in, such as “the world and stories [the minor] created.” The minor invited father to ask questions but remained mostly in control of the dialogue. The minor missed playing video games with father and described the games as fun and violent.

In contrast with earlier in the case, when the minor talked about missing his parents and wanting to return home, the minor said he was happy where he was but wanted to continue to visit his parents and grandmothers. The minor was interested in attending the visits but did not express any challenges at leaving the visits. The minor only exhibited an emotional reaction, such as crying or withdrawing, in response to seeing or hearing father become emotional. The social worker found it difficult to identify strengths or weaknesses in the bond between the minor and father due to their limited interaction.

In October 2020, the minor did not ask for a phone call for three weeks. In-person visits resumed that month. The visits went well, with the minor describing them with two thumbs up. The family talked, laughed, joked, and chatted in a pleasant manner. The minor and the parents exchanged hugs and kisses at the end of visits.

By December 2020, father had attended couples counseling with mother. The couples therapist reported that both parents were prone to angry outbursts, and father’s outbursts included yelling, pacing, and hitting furniture.

At the 18-month review hearing in December 2020, the juvenile court terminated reunification services, reduced visitation to one hour per month, and set a date for a hearing under section 366.26. Father and mother filed petitions for extraordinary writ relief challenging the juvenile court’s orders. (L.B. v. Superior Court of Contra Costa County, supra, A161673).) We affirmed the orders terminating reunification services and setting the section 366.26 hearing, but we held the record did not support the decision to reduce the amount of visitation. (Ibid.)

The minor continued to visit with the parents. It was hard for the parents to end the January 2021 visit. At the February 2021 visit, the parents seemed to compete for the minor’s attention. Father became irate at the paternal grandmother who he felt was interrupting his interaction with the minor. The parents missed the March 2021 visit because they did not notice the schedule had changed, and both the parents and the minor expressed disappointment. During a phone call that month, mother and the minor discussed father’s anger issues, and the minor referred to how father used to yell at him.

The Bureau’s April 2021 report for the section 366.26 hearing described how the minor avoided speaking in therapy about his feelings about his biological family and residing in foster care. However, the minor did tell his therapist that even if he is adopted, his adoptive family will not replace his biological family. The minor told his foster mother that therapy was a “waste of breath.”

In July 2020, when a social worker had spoken to the minor about adoption and legal guardianship, the minor had written on a paper “adopt me and give me one dollarz.” (Sic.) He also told the social worker that he was open to adoption with his foster mother if he would be able to continue visiting with his parents.

In a letter in the minor’s file believed to have been written in October 2020, the minor wrote, “I wanted to get adopted (meaning kept forever) then good things will happen, like me having more visits than right now (witch is me not adopted) And I could do more things! (Witch is cool because im cool and everything I do is awesome.) (I was born awesome) anyways, I want to be adopted cuz’ of all the cool and awesome things that I can do!” (Sic.)

In November 2020, the minor had reiterated his desire to be adopted. The social worker explained further the differences between legal guardianship and adoption. The minor was resistant to sharing his feelings on the subject but did share that having visits with his parents was important to him.

In March 2021, the minor said he wanted to be adopted by a family member.

The Bureau concluded in its April 2021 report that the parents had visited consistently and there was an existing parent/child relationship between the minor and the parents but that the relationship did not outweigh the benefits of legal permanency for the minor. The Bureau therefore recommended terminating parental rights and adoption by the minor’s foster mother. The foster mother was interested in adopting the minor and also hoped to adopt the minor’s sibling. The foster mother intended to maintain the minor’s bond with the parents by facilitating visits, even after adoption. The foster mother preferred adoption to legal guardianship because it would allow her to make decisions independently about how to handle contact with the parents. The foster mother had said on some occasions that she would pursue legal guardianship if it were the only permanency option for the minor, but on another occasion, she said she was not willing to do it.

On the first day of the section 366.26 hearing in April 2021, the juvenile court maintained visitation at two hours per month. The court then continued the hearing. The visits leading up to the next section 366.26 hearing date went smoothly, with the minor smiling while the parents spoke to him and father talking to the minor about his interests and what he had been doing. The parents mentioned that social media was a way for them to communicate with the minor. The minor and his parents were verbally and physically affectionate during the visits. In May 2021, the minor asked the social worker if it was true that he could call his parents whenever he wanted. A few days later, the foster mother facilitated a phone call.

In June 2021, the Bureau reported that between December 2020 and May 2021 father had made social media posts in which he drank large amounts of alcohol, smoked marijuana, and appeared intoxicated. In two videos in which father appeared drunk, he described how he had beaten up his friend and that it felt good.

In August 2021, the minor asked the social worker if the social worker’s visits would be over soon. The social worker responded that the social worker visits would continue until the minor’s case was closed with legal guardianship or adoption. The minor responded that he wanted to be “adopted already.”

At the section 366.26 hearing, father was the only witness to testify. He testified that at visits he and the minor talked, mostly about the media, movies, and TV shows. Father also mentioned talking to the minor about Greek mythology, which father had also been interested at the minor’s age. Father believed the minor enjoyed the visits. He described his relationship with the minor as very close, which resulted from the minor spending all of his time with father when the minor was not at school. Father believed that the minor had not been given the opportunity to thoughtfully and thoroughly think about adoption, and that the minor was choosing adoption because it seemed like the only way out of his case and the social workers’ involvement. However, father admitted the minor had never said that he wanted a way out.

Father said he tried to talk to the minor about school, but the minor was not interested in talking about that sort of thing. The minor at one point had asked father how to fight. Father asked the minor why he wanted to know, but the minor did not elaborate. When asked whether he told the minor how to fight, father said he did not even know how to fight. Father did not recall posting a video to Facebook about fighting, but he did admit to drinking alcohol in some videos. Father said the minor did not talk to him about his fears, but he did talk to father about his hopes and dreams of becoming a famous YouTuber or gamer. Father did not know the minor’s favorite color but said his favorite foods were pizza, burritos, and cheeseburgers. Father did not recall the most interesting thing the minor had said during visits. The minor said “I love you” during visits when father said it first.

After hearing argument, the juvenile court terminated both parents’ parental rights. It ruled that father had not established the beneficial relationship exception. It found that it was clear from the visits that the parents and the minor loved each other. But it found the quality of the visits was not always ideal. The court referred to incidents in which father would belittle mother and carelessly pick her up and drop her in the wheelchair. The court also agreed with the Bureau’s attorney that the minor’s actions during the visits, such as talking about media and watching videos with mother on her phone, showed that the minor had more of a friendly relationship with the parents than a parent-child relationship. The court noted that the parents still did not have much insight into what brought this case to court and had not absorbed any of the services that were provided to them. The court concluded that while there was an existing relationship between the minor and the parents, it could not find that the nature or quality of that relationship outweighed the benefit of permanence or that terminating parental rights would be detrimental to the minor. The court then observed that, while it was not part of its analysis, it was pleased to hear that the foster mother intended to permit ongoing contact after adoption.

DISCUSSION

Father’s sole argument on appeal is that the juvenile court should have found that he met the criteria for the beneficial relationship exception and not terminated his parental rights.

“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and implement a permanent plan for the child.’ ” (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) If reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is adoptable, “then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan.” (Id. at pp. 630–631.) “[W]hen a parent establishes that one of the exceptions applies, adoption or termination is not ‘in the best interest of the child.’ ” (Id. at p. 631.) One of these exceptions “applies where ‘[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) 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).)” (Caden C., at p. 631.)

A “parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.)

We review a juvenile court’s determination on the first and second elements for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) We likewise review for substantial evidence the factual determinations underlying the juvenile court’s balancing of the detriment from the loss of the relationship against the benefits of placement in an adoptive home, but we review for abuse of discretion the ultimate decision of “whether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent.” (Id. at p. 640.) There is likely no practical difference between these standards, however, since the hybrid standard of review “simply embodies the principle that ‘[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child’s best interests for the trial court’s determination in that regard, reached pursuant to the statutory scheme’s comprehensive and controlling provisions.’ ” (Id. at p. 641.)

The first element, visitation, is straightforward, requiring a court to consider “whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) Father argues, the Bureau concedes, and we agree that he consistently visited the minor.

On the second element, whether a child has a substantial positive attachment to the parent, a court considers “a slew of factors, such as ‘[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.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) It also considers “how children feel about, interact with, look to, or talk about their parents,” which “properly focuses the inquiry on the child, even as courts must remain mindful that rarely do ‘[p]arent-child relationships’ conform to an entirely consistent pattern.” (Ibid.) Caden C. further clarified that while “[a] parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the exception,” such issues “may mean that interaction between parent and child at least sometimes has a ‘ “negative” effect’ on the child,” which would impact whether the parent’s relationship with the child is beneficial and positive. (Caden C., supra, 11 Cal.5th at p. 637.)

The juvenile court found the minor had a relationship with father but characterized it as more of a friendly interaction than a parent-child relationship. Father challenges this finding by analyzing the factors Caden C. set forth for evaluating a child’s attachment to a parent.[2] He notes that the minor had lived with him for eight of his ten years of life. He also highlights the facts that the minor cried after one visit, asked about going home, said he missed father, experienced distress about the separation from father, told a therapist that any adoptive family would not replace his biological family, said he wanted to be adopted so he could have more visits, and said that visits with his parents were important to him. Father notes that the Bureau’s reports consistently stated that the minor and father had a parent/child bond and described their relationship as close and loving.

The evidence father cites could support a finding that father had a parent/child relationship with the minor. However, under the substantial evidence standard of review, we look for substantial evidence supporting the juvenile court’s finding, not substantial evidence against it. If we find substantial evidence supporting the finding, it must be upheld, “ ‘even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’ ” (Caden C., supra, 11 Cal.5th at p. 640.) Thus, it is not sufficient to point to contrary evidence; father must also show why the evidence supporting the juvenile court’s finding is insufficient.

In this case, the record contains substantial evidence supporting the juvenile court’s finding, so we must uphold it. While father’s visits with the minor were affectionate, their conversations were largely superficial. By father’s own admission, he and the minor talked mostly about movies and TV shows. The Bureau reports corroborate this, noting several times that father and the minor primarily talked about video games. The minor said at one point that he missed playing fun and violent video games with father. When father tried to talk to the minor about school, the minor was not interested. The minor did not talk about his fears with father, and the only hopes or dreams that he shared with father related to becoming a famous gamer or YouTuber. The minor asked father at one point how to fight, but when father asked why the minor wanted to know, the minor did not reveal his motivations. Although positive, these interactions do not reflect a relationship in which the minor looks to father for parental guidance, support, or approval.

While the minor said he wanted to continue visits, he generally did not express any difficulties when the visits were over. The minor had cried during or after visits in the first six months after removal and during one phone call about a year after removal, but even then, the minor usually only became emotional after seeing father become upset. The minor’s statements about missing father likewise came only early in the dependency, within the first year after the minor was removed. The more recent reports do not describe any such emotional reactions, just statements that visits are important to the minor and disappointment that one visit did not occur, coupled with statements that the minor wanted to be adopted. By May 2020, the minor said he was happy in his foster home placement.

The minor was also allowed to call father when he wished, but in contrast with early in the dependency, when the minor called several times in two weeks but did not receive a call back, later in the dependency the minor would not call for several weeks at a time. Father even asked the minor about his failure to call on the phone, but the minor just shrugged his shoulders. Combined with the evidence of the minor’s decreasing emotional reactions to separation from father, this suggests that while the minor initially had a stronger positive attachment to his parents, the nature and depth of the attachment changed over the course of the dependency. The juvenile court could reasonably discount the early descriptions of the minor’s emotional reactions in favor of the minor’s more recent statements and behavior.

Father does not explain why most of this evidence is insufficient. The only findings or evidence that father challenges are the minor’s statements that he wanted to be adopted and the juvenile court’s remark that father had not really absorbed any of the services the Bureau provided and was unable to reflect on what gave rise to the dependency. As to the former, father emphasizes that the minor said he wanted to be adopted so he could have more visits with his parents. This apparently contradictory statement could be the result of statements by the Bureau’s social worker in October 2020 that he could stay in touch with his parents after adoption, or statements by his foster mother that she intended to allow the minor to continue his relationship with father, as father argues. Father asserts there is no evidence that the minor was told that adoption could mean he would have no legal right to see his parents or grandparents and might never see them again.

But the Bureau’s social worker’s report in April 2021 states that the social worker explained further the differences between adoption and legal guardianship, which presumably would have included the difference in the minor’s right to see his parents. Father did not call the social worker to cross-examine her about the extent of her explanation or clarify the minor’s understanding of the consequences of adoption. And the minor continued to state a preference for adoption even after the social worker provided this explanation of guardianship and adoption, so we cannot disregard the minor’s stated preference as uninformed. In any event, even if we disregard the minor’s preference, it would not change the result, given the other evidence supporting the juvenile court’s finding.

As for the court’s remarks about the causes of the dependency, father is correct that “[a] parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the [beneficial relationship] exception.” (Caden C., supra, 11 Cal.5th at p. 637.) However, “ssues such as those that led to dependency often prove relevant to the application of the exception,” since they can “speak to the benefit (or lack thereof) of continuing the relationship” as well as “the detriment from terminating parental rights.” ([i]Id. at pp. 637, 638.) The juvenile court began its ruling by stating that the focus of its decision was the minor and his needs, and it concluded its remarks by saying that father’s lack of progress in his case plan indicated the “nature” and “quality” of his relationship with the minor did not outweigh the minor’s interest in permanence. Accordingly, we do not read these remarks as indicating the juvenile court impermissibly relied on father’s failure to reunify with the minor or strayed from the relevant factors, as father contends.

The juvenile court correctly determined that father’s failure to make progress towards remedying the causes of the dependency were relevant to the benefit of continuing the minor’s relationship with him. The minor was removed from father’s care due to his aggressive emotional outbursts and domestic violence against mother, and both behaviors were on display in his visits with the minor. Father told the minor in one visit that the minor’s mother was dumb, and became irate at the minor’s paternal grandmother when father believed she was interrupting his interaction with the minor. Mother appeared at one visit with visible injuries that father claimed were from a fall but that mother refused to discuss. At another visit, father dropped mother in a wheelchair in a way that could have injured her. The minor recalled in a discussion with mother how father used to yell at him, which suggests the minor’s memory of father’s behavior continued to color his relationship with father. Additionally, father and mother suggested to the minor that he could use social media to remain in contact with them. But around the same time, father was posting videos to social media in which he appeared drunk and bragged about how good it felt to beat up a friend. This evidence of father’s continued aggressive behavior suggests his relationship could negatively affect the minor, further supporting the juvenile court’s assessment that the benefit to continuing father’s relationship with the minor was far less than father suggests.

Besides challenging the juvenile court’s ruling that he did not have a substantial, positive relationship with the minor, father also argues the court should have ruled that terminating his parental rights would be detrimental to the minor. “Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship.” (Caden C., supra, 11 Cal.5th at p. 633.) The third element requires a court to undertake a “subtle, case-specific inquiry” into whether “the benefit of placement in a new, adoptive home outweigh[s] ‘the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent].’ ” (Ibid.)

Given its view of the quality of father’s relationship with the minor, the juvenile court did not believe that terminating father’s rights would be detrimental to the minor.

The juvenile court also stated that while it was not part of its analysis, it was nonetheless pleased to hear that there was a possibility of post-adoption visits between the minor and his parents.

Father’s attack on this ruling largely echoes his argument on the second element that he had a significant parental relationship with the minor. We have already concluded that substantial evidence supports the juvenile court’s ruling that the minor’s relationship with father was not significant. But even if we credit father’s evidence that his relationship with the minor was significant, the juvenile court still did not abuse its discretion in finding the detriment of severing that relationship did not outweigh the minor’s interest in permanence. As noted, ante, the minor’s relationship with father focused on discussing video games, movies, and TV shows, and there were negative aspects to the relationship relating to father’s aggression and evidence of domestic violence against mother. Accepting for the sake of argument father’s contention that the minor’s requests to be adopted were not indicative of the strength of his relationship with father, at a minimum those requests still demonstrate that the minor wanted to end the dependency case and achieve permanence. The juvenile court could reasonably conclude from this evidence that the minor’s case was not exceptional and the loss of his relationship with father would not be so detrimental as to outweigh his interest in permanence.

Father compares this case to In re S.B. (2008) 164 Cal.App.4th 289, 301, which reversed a juvenile court’s ruling that the exception did not apply. There, the child displayed a strong attachment to her father, was unhappy and tried to leave with him when visits were over, told her father she loved him and missed him, said she wished she lived with him, whispered and joked with him, and initiated physical contact. (Id. at p. 298.) The juvenile court had recognized that the child would benefit from continuing the relationship and based its decision to terminate the father’s parental rights on the adoptive grandparents’ willingness to let the child visit with her father. (Id. at p. 300.) The Court of Appeal held this was improper and that the evidence of the child’s attachment to her father and the benefits she gained from his visits demonstrated she would be greatly harmed by the loss of the relationship. (Id. at pp. 300–301.)

The minor’s relationship with father is like that in In re S.B. to the extent that both relationships were physically affectionate and involved joking, but that is where the similarities end. The minor here did not try to leave with father from visits, did not say he wanted to live with him, and only said he loved father when father prompted him by saying it first. Additionally, while father emphasizes that the juvenile court mentioned the possibility of ongoing contact post-adoption, the court also made clear that it did not rely on that fact when making its ruling. Given these differences between this case and In re S.B., we are not convinced that it was arbitrary, capricious, or patently absurd for the juvenile court to rule that the minor’s relationship with father did not outweigh his interest in permanency. (Caden C., supra, 11 Cal.5th at p. 641 [defining abuse of discretion standard].)

Father’s remaining arguments fare no better than those we have already rejected. Father notes that the Bureau argued at one point that the minor’s foster mother said she would refuse legal guardianship over the minor but then later argued that legal guardianship had not been discussed. The caregiver’s willingness to consider legal guardianship does not bear on the quality of the minor’s relationship with father or the detriment of severing it, so the conflicting argument is irrelevant. And in any event, the social worker’s report for the section 366.26 hearing describes in detail the social worker’s discussion of legal guardianship with the foster mother, so the Bureau’s later argument was simply mistaken. Father also notes that the Bureau asserted at one point that the minor could not be returned to his parents’ care. The juvenile court made clear that the focus of its decision at the section 366.26 hearing was a permanent plan for the minor, not reunification, so the Bureau’s remark does not support reversal.

DISPOSITION

The juvenile court’s order is affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

In re M.C. (A164057)

[1] Subsequent undesignated statutory citations are to the Welfare and Institutions Code.

[2] Father also notes that the Bureau’s brief does not contain any record citations to support assertions in the argument section. Father is correct that this violates the California Rules of Court, which require briefs to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) Should the Bureau’s counsel fail to comply with this rule in the future, we will take appropriate remedial action.