Filed 7/12/22 In re J.V. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Mother and father appeal the juvenile court’s orders terminating their parental rights and freeing the minor Joseph V. for adoption. (Welf. & Inst. Code, § 366.26.)[1] Parents’ contentions on appeal are limited to the propriety of the juvenile court’s order determining that father had not established the parental benefit exception to the statutory preference for adoption as qualified in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). Because the parents have failed to establish juvenile court error, we will affirm the court’s orders.

I. BACKGROUND

1. The Proceedings Through Joseph’s Initial Return to Father

Joseph originally came to the attention of the San Joaquin County Human Services Agency (Agency) in March 2016 when he was born with alcohol in his system. Mother admitted to drinking alcohol throughout her pregnancy, and father agreed to safeguard Joseph in light of mother’s substance abuse. However, the Agency lost track of the family when they moved.

The family again came to the Agency’s attention when mother gave birth to Joseph’s brother, M.V., prematurely at 28 weeks in December 2018. M.V. tested positive for alcohol, and mother admitted to drinking alcohol throughout her pregnancy until approximately one month before M.V. was born. Father told the Agency that Joseph lived with him because of father’s concerns about mother’s drinking problem. While father worked, Joseph was cared for by relatives. Mother told the Agency that she and father were still in a relationship, although they lived separately. Father drank the same amount of alcohol as mother and also used marijuana. Mother denied she had a drinking problem.

In March 2019, concerns for Joseph’s safety arose as a result of mother’s calls to M.V.’s hospital wherein she appeared to be confused and/or under the influence, and Joseph could be heard playing in the background. Mother also called the Agency to determine whether the “CPS case” regarding Joseph and M.V. (collectively, minors) had been closed. When told it was still open, mother became uncooperative and refused to say where Joseph was living because she was afraid the Agency would take Joseph away. Nonetheless, mother relayed she usually cared for Joseph while father worked. Father similarly refused to cooperate with the Agency investigation.

In April 2019, the Agency filed a noncustodial dependency petition alleging the minors fell under section 300, subdivision (b)(1) in light of mother’s and father’s history of substance abuse, father’s failure to protect the minors from mother’s substance abuse, and the lack of stable housing for mother, father, and Joseph. The Agency sought and obtained the issuance of a protective bench warrant for custody of the minors, and Joseph was taken into protective custody shortly thereafter.[2]

The June 5, 2019 jurisdictional hearing was uncontested, as the parties stipulated to the factual basis, and parents submitted on the amended petition. The juvenile court determined the allegations in the petition were true, ordered mother to participate in drug court, ordered father assessed for drug court, and granted the Agency discretion to increase visitation as appropriate providing parents remained clean and sober.

The Agency’s July 2019 disposition report recommended reunification services for parents. It also reflected in pertinent part that Joseph had supervised visits with mother twice weekly and father three times a week. Father’s visits were scheduled to become unsupervised. At the disposition hearing, parents submitted on the Agency report, and the court adopted the Agency’s recommended findings and orders, including that father was Joseph’s primary caregiver prior to removal and that Joseph appeared to be closely bonded with him.

The Agency’s January 2020 six-month review report (§ 366.21, subd. (e)) recommended additional reunification services and reflected that parents visited Joseph twice weekly for three hours each visit, mother visited Joseph an additional two hours on Saturdays, and father had six-hour visits with Joseph on Sundays. Parents submitted on the reports, and the court adopted the proposed findings and orders, including that parents visited Joseph consistently and would receive additional reunification services. The court also authorized discretion for the Agency to allow parents overnight visits with Joseph.

The Agency’s May 2020 12-month review report (§ 366.21, subd. (f)) recommended terminating mother’s reunification services given her continued struggles with sobriety and returning Joseph to father with family maintenance services. Father had progressed to overnight visits with Joseph on Saturdays and Sundays, with video chats three times during the week. The report noted father and Joseph’s bond was “apparent to anyone who sees them.” At the June 29, 2020 hearing, the Agency amended its position, recommending continuation of reunification services for mother, and the parents submitted on the report. In accordance with this, the juvenile court ordered Joseph’s return to father with maintenance services and that mother would continue receiving reunification services and visits.

2. The Supplemental Petition

The Agency’s August 28, 2020 supplemental petition (§ 387) alleged that Joseph’s placement with father was no longer appropriate because father was observed with open alcohol containers in his car, had smelled of alcohol when picking Joseph up from the babysitter, and had left Joseph with individuals not previously approved by the Agency despite instructions to the contrary. Joseph confirmed father’s beer of choice and that father and grandfather drank that beer while driving Joseph in the car.

At the September 1, 2020 hearing on the supplemental petition, the Agency and Joseph’s counsel asked he be detained for his safety. Father opposed detention, arguing Joseph’s information should not be credited given his age, that the beer was not his, that he was remorseful for allowing the incident to occur, and requesting to be tested in lieu of detention. Finding the evidence “strong and compelling,” the court ordered Joseph’s detention and that father complete a drug test, which came back positive for marijuana.[3]

Father alone opposed jurisdiction on the supplemental petition. The Agency’s October 2020 jurisdiction report noted father had completed all requested services prior to Joseph’s return to him on June 29, 2020. However, there was evidence that father had been drinking and driving with Joseph following that return. Nonetheless, father denied having a substance abuse problem, despite having three positive tests in September and October for alcohol and/or marijuana, which were all confirmed by retesting.

At the November 24, 2020 jurisdiction hearing, the court admitted the Agency’s disposition report and father’s latest drug test results without opposition. Father’s grandmother testified that she never saw father drink alcohol or smoke marijuana in front of Joseph. Father also testified, attempting to explain away both the beer that had been observed in his car and his positive test for marijuana. Father denied allowing grandfather to babysit Joseph, that father ever drank alcohol prior to picking up Joseph, or that he drank in front of Joseph. Finding father’s explanations not credible, the juvenile court determined there was overwhelming circumstantial evidence that father was using. Accordingly, the court found jurisdiction and set the matter for a disposition hearing on the supplemental petition with the status review of the original dependency matter trailing.

The Agency’s January 5, 2021 disposition and status review report recommended the termination of reunification services as to both parents in light of mother’s and father’s continued struggles with sobriety, their cessation of participation in services, and because parents had been receiving services for more than 18 months. Pertinent to the issues on appeal, father had been having supervised visits with Joseph, until December 5, 2020, when father stopped visiting because of conflicts with his work schedule. Father did not respond to attempts to set up virtual visits. Joseph had been determined to be adoptable and his caregiver was committed to providing him permanency. On January 5, 2021, father requested a trial, and that matter was put over to January 26, 2021.

At the January 26, 2021 contested disposition/18-month review hearing, the court admitted the Agency’s January 5, 2021 report as amended. Father then testified he tried to visit Joseph regularly but could not because of conflicts with his work schedule. Father had missed work to make visits with Joseph, but he was at risk of being fired for absenteeism. Since the last court date on January 5, father had visited Joseph two or three times, but father explained that not all missed visits were his fault, as the foster parent had been sick and unable to transport Joseph. Father testified that Joseph was shy at the beginning of visits but was excited to see him and would hug him and call him “daddy.” Father denied missing 18 visits with Joseph since his removal in September, that he no called/no showed for seven visits, and that four visits were canceled because he failed to confirm he would attend them.

Mother testified in pertinent part that she normally visited Joseph with father and had been to approximately 10 visits since September 2020. Parents were advised to call ahead to confirm visits, but failed to do so. Mother also called social worker Yeni Gonzales, who initially testified parents had missed 18 visits since September 2020, not including the five canceled by Joseph’s caretaker or the four visits canceled by the social worker. However, upon examination of a visitation log entered into evidence, it appeared that parents may have been responsible for missing fewer than 18 visits. Ultimately, the court terminated reunification services, noting in pertinent part that father’s visits had been “inconsistent,” that there was not a probability that Joseph could be returned in the next six months, and that parents had exceeded the maximum period for reunification.

C. The Termination & Selection of Adoption as a Permanent Plan

The Agency’s May 5, 2021 section 366.26 report recommended the termination of parental rights and the freeing of Joseph for adoption. Joseph had been cared for by his prospective adoptive parent/foster mom from April 2019 through the report with the exception of the few months that he had been returned to father. Joseph had a close bond with his foster mom, as shown by his calling her “mom” and seeking comfort from her when upset. Joseph’s foster mom expressed her love for Joseph and was committed to providing him a “forever home that is filled with love and support.” While Joseph was closer to his father than his mother, both parents failed to visit consistently. In light of this failure to maintain “regular and consistent contact,” the report recommended no exception to adoption applied.

At the July 13, 2021 termination and selection hearing (§ 366.26), the Agency submitted its May 2021 report as evidence. Father then testified that he cared for Joseph from birth until he was taken away at age three. Joseph had been returned to him for a few months, but then taken away again. He was now five years old. Father had supervised one-hour visits on Tuesdays and Wednesdays and only missed visits when he had a work conflict. At visits, Joseph would smile and run to father, calling him “Daddy” and often sat in his lap. The two watched movies together and opened new clothes and/or toys father would bring to visits. If Joseph was feeling ill, they visited via Zoom, and father would use emojis to engage him. Father testified Joseph was mad, sad, and/or frustrated at the end of visits, but conceded that he would willingly go to his foster mom. Father did not see Joseph cry or yell at the end of visits, but he would refuse to put away his toys. Father did not see Joseph lay down on the floor, try to run away from his foster mom, or refuse to go with her.

Thereafter, the Agency urged the court to find the parental benefit exception inapplicable because father had failed to consistently visit and had not shown the “type of parental relationship” required, nor that whatever relationship existed would outweigh the benefits of adoption. Joseph’s counsel concurred that father had not demonstrated the benefits of his relationship with Joseph outweighed the benefits of adoption. Parents disagreed urging the exception had been met. The juvenile court then ruled that the parents had failed to demonstrate a detriment following the “legislature’s preference of adoption” and that none of the exceptions to that preference existed. Accordingly, the court terminated the parents’ parental rights and released Joseph for adoption. Parents timely appealed.

II. DISCUSSION

Parents argue the juvenile court erred in determining that father had not established the parental benefit exception to statutory preference for adoption as qualified in Caden C., supra, 11 Cal.5th 614. Parents argue reversal is required because: (1) father presented evidence establishing each element required for that exception to apply; (2) the court may have considered inappropriate information in its analysis; and (3) the record does not demonstrate the juvenile court weighed the detriment of terminating father’s relationship with Joseph against the benefits that would be derived from adoption. These arguments misapprehend our task as a reviewing court and neglect the parents’ obligation to affirmatively demonstrate the juvenile court abused its discretion in determining that the exception did not apply. Accordingly, their arguments fail.

1. Background

At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One such exception is the beneficial parent-child relationship exception, which applies when “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) A parent claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

To establish the beneficial parent-child relationship exception, the parent must show by a preponderance of the evidence three elements: “(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.” (Caden C., supra, 11 Cal.5th at pp. 631, 636.) In assessing whether termination would be detrimental, the juvenile court “must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home.” (Id. at p. 632.) When the parent meets this burden, the exception applies such that it would not be in the child’s best interest to terminate parental rights, and the court selects a permanent plan other than adoption. (Id. at pp. 636-637.)

We review a juvenile court’s ruling on the application of the beneficial parent-child relationship exception using a “hybrid” standard. (Caden C., supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639-640.) As a reviewing court, we do “ ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts’ ” and will uphold the juvenile court’s determinations even when substantial evidence to the contrary also exists. (Id. at p. 640.) The juvenile court’s decision as to the third element—whether termination of parental rights would be detrimental to the child—is reviewed for an abuse of discretion. (Ibid.) “A court abuses its discretion only when ‘ “ ‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)

2. Application

In the present case, the juvenile court ruled from the bench that there was no evidence demonstrating that it would be detrimental to pursue the legislative preference of adoption and that none of the exceptions to adoption applied. The parents did not ask the court to clarify which elements to the parental benefit exception were lacking, and as such, we do not know the court’s specific reasoning in determining that father had not demonstrated the applicability of an exception to the legislative preference for adoption. (§ 366.26, subd. (c)(1).)

Nonetheless, we highlight that Caden C. was decided May 27, 2021, approximately six weeks prior to the juvenile court’s section 366.26 ruling in this case. (Caden C., supra, 11 Cal.5th 614.) Thus, father’s argument that the juvenile court’s decision was made without the guidance of Caden C. is inaccurate. We presume, in the absence of any evidence to the contrary, that the court was aware of and complied with the law, including Caden C. (See, e.g., People v. Jones (2017) 3 Cal.5th 583, 616 [“ ‘In the absence of evidence to the contrary, we presume that the court “knows and applies the correct statutory and case law” ’ ”].)[4] Accordingly, our review here begins with the presumption that the challenged determination was lawful.

Nor do we agree with father’s suggestion that we must reverse because the record does not affirmatively show the juvenile court’s weighing of the detriment of terminating father’s relationship with Joseph against the benefits that would be derived from adoption. While the juvenile court is required to make individual findings related to the elements of the parental benefit exception where the court finds the exception applicable (§ 366.26, subd. (c)(1)(D)), parents have not provided—and this court’s research has not disclosed—authority requiring that the juvenile court make these findings when denying the application of the parental benefit exception. (See In re A.L., supra, 73 Cal.App.5th at p. 1156 [rejecting assertion that prior to finding the exception inapplicable, “specific findings relative to [the court’s] conclusions regarding any or all of the three elements of the [parental-benefit] exception” were required].)

Finally, concerning the juvenile court’s determination that father had not established it would be detrimental to comply with the statutory preference in favor of adoption, we find parents have not demonstrated the juvenile court abused its discretion in its finding the parental benefit to exception inapplicable.

In making this determination, we need not go farther than the first element requiring a showing of “regular visitation and contact.” (Caden C., supra, 11 Cal.5th at pp. 631, 636.) Notably, there is a distinction between father’s visitation leading to Joseph’s return and his visitation following Joseph’s second removal. While there is no question that father visited consistently leading up to return, following Joseph’s second removal, father failed to consistently visit as specifically highlighted by the juvenile court at the contested supplemental disposition and 18-month review hearing on January 26, 2021, wherein the court elected to terminate his reunification services. Father failed to challenge the termination of his services in a writ, and parents fail to acknowledge the juvenile court’s determination that his visitation was inconsistent in their appellate briefing. Nonetheless, we note the juvenile court’s determination that father visited inconsistently leading up to the termination of his services is supported by the record.

Evidence showed that leading up to this hearing, father failed to visit for most if not all of the month of December and had only visited Joseph two or three times in January. In fact, there was evidence suggesting that father had missed as many as 18 visits with Joseph since his removal in September, that he had no called/no showed for seven visits, and that four visits were canceled because he failed to confirm he would attend them.[5] That parents needed to call ahead to confirm visits was corroborated by mother’s testimony.

Further, contrary to father’s assertions otherwise, father missed at least four more visits following the termination of father’s services on January 26, 2021. Accordingly, and consistent with the court’s previous determination, the Agency’s May 2021 section 366.26 report recommended father’s failure to maintain “regular and consistent contact” made the parental benefit exception inapplicable. The Agency argued as much at the termination hearing, and we are loath to second guess what would be a supported determination given the state of the record. (Caden C., supra, 11 Cal.5th at p. 640; see also In re Breanna S. (2017) 8 Cal.App.5th 636, 647, disapproved on other grounds in Caden C., supra, at p. 637, fn. 6 [review of a determination that visitation was irregular is “limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law”].) Parents have failed to show substantial evidence would not support a juvenile court determination that father had failed to establish regular visitation (In re Breanna S., supra, at p. 647), nor that the juvenile court ultimately abused its discretion in determining the exception did not apply.

III. DISPOSITION

The juvenile court’s orders are affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MAURO, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] M.V. was still in the hospital and so was transferred into foster care until May 2019. Because parents do not challenge the propriety of the juvenile court’s ultimate order terminating their parental rights as to M.V., this opinion will focus on the information relevant to the court’s decisions regarding Joseph.

[3] Father also tested positive for marijuana and alcohol following a court hearing on September 15, 2020.

[4] In light of this presumption, and because there is no indication in the record that the juvenile court’s analysis ran afoul of Caden C.’s guidance, parents’ reliance on In re D.M. (2021) 71 Cal.App.5th 261, In re B.D. (2021) 66 Cal.App.5th 1218, In re D.P. (2022) 76 Cal.App.5th 153, and In re L.A.-O. (2021) 73 Cal.App.5th 197 is unavailing. (See, e.g., In re A.L. (2022) 73 Cal.App.5th 1131, 1160-1161, & fn. 14 [no need to remand for further consideration following Caden. C. where there was no indication court considered factors deemed inappropriate thereby].)

[5] There is some suggestion that the number of visits missed at father’s fault may have been fewer than 18. However, we highlight that during this visitation period, the record reflects father was only visiting once a week for one hour supervised. Accordingly, even if father was responsible for missing a lesser amount, such as the seven visits for which he no called/no showed, this would have been seven weeks without visits substantially interrupting the regularity and consistency of visits. Mother’s and father’s characterization of visitation during this period as regular and/or consistent is simply unsupported.