Filed 8/26/20 In re H.H. CA1/5

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


    In re H.H., a Person Coming Under
    the Juvenile Court Law.


    SAN FRANCISCO HUMAN
    SERVICES AGENCY,
                                                                        A159078
            Plaintiff and Respondent,
    v.
                                                                        (San Francisco County
    R.H.,
                                                                        Super. Ct. No. JD17-3179)
            Defendant and Appellant.



         In this dependency action, R.H. (Father) appeals the juvenile court’s
order terminating his parental rights over his son, H.H. (Minor). We affirm.
                                                   BACKGROUND
         In July 2017, the San Francisco Human Services Agency (Agency) filed
a Welfare and Institutions Code section 3001 petition on behalf of Minor, then
four years old. Minor was detained in August and placed in foster care.

1All undesignated section references are to the Welfare and Institutions
Code.



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According to initial Agency reports, the apartment Father and Minor shared
was cluttered and filthy and on multiple occasions Minor was visibly dirty
and wearing no clothes.2 Minor was exhibiting significant developmental
delays, but Father failed to follow up on multiple appointments and referrals.
Father admitted to having a substance abuse problem and told the Agency
“most of the time he is completely overwhelmed with parenting [Minor].” The
Agency social worker stated Father was “a very loving father” and “loves
[Minor] to death.” In September, Father submitted to an amended petition
and the juvenile court ordered reunification services.
      In March 2018, the Agency reported that Minor had recently been
diagnosed as autistic and had developmental and language delays. Father
had weekly supervised visits that he attended inconsistently, apparently due
to problems with his phone and health issues. When he did attend visits, he
was appropriate. Father was participating in individual therapy and
outpatient drug treatment, but had left a residential program early and had
multiple positive drug tests. In June, the juvenile court ordered six
additional months of services.
      In August 2018, the Agency reported that during supervised visits and
therapeutic visits, Father was appropriate with Minor, attuned to Minor’s
needs, and able to comfort Minor and provide affection and attention. The
Agency social worker noted, “No[] one is doubting how much [Father] loves
and cares about [Minor], and vice-versa . . . .” However, Father’s attendance
continued to be inconsistent and when he missed visits, as he did many
times, Minor became extremely upset and threw tantrums that could last



2Father had been awarded full physical custody of Minor in a family court
case. Mother died during the dependency proceedings.


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hours. Father continued to struggle with substance abuse and left three
residential treatment programs within the first week of the program.
      In June 2019, after the twelve-month review hearing had been
continued several times, the Agency filed another status report. Father
failed to make “any consistent progress[] with any of his court ordered
services nor has he made any behavioral changes.” Father entered two more
residential treatment programs but left each after less than two weeks and
continued to have multiple positive drug tests. He failed to enroll in a
parenting class. His apartment remained cluttered and dirty. His
supervised visits with Minor were appropriate but he continued to miss
numerous visits, greatly upsetting Minor. The Agency social worker had
“repeatedly explained and stressed” the emotional impact of missed visits on
Minor, with no apparent effect on Father’s behavior. The Agency social
worker opined that Father “loves [Minor] very much” but is “extremely
disorganized and irresponsible,” and “does not appear to realize the
emotional [e]ffect it has on [Minor] when visits are cancelled.” At the twelve-
month review hearing, the court terminated reunification services and set a
section 366.26 hearing for October.
      In September 2019, the Agency filed a section 366.26 report
recommending termination of Father’s parental rights. The report stated
Minor had moved to a new foster home in July and his foster parents were
committed to adopting him. Minor had established a good relationship with
them in just a few months, appeared very happy and comfortable with them,
and reportedly described them to others as his family. He was doing well in
school, was in good health, and his behavior had significantly improved.
Visits with Father were positive, Minor appeared happy and comfortable
with Father, and Father had been attending more consistently. Father and



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Minor’s foster parents were Minor’s “strongest permanent connections” and
Minor told the Agency social worker he was proud to have three dads in his
life.
        In October 2019, the juvenile court suspended Father’s visits on
Minor’s counsel’s motion, following reports from the foster parents that Minor
returned from a visit talking about his mother’s death in graphic detail and
that Father told Minor they were going to live together, causing Minor
anxiety and confusion. Visits were reinstated the following month.
        At the November 2019 section 366.26 hearing, Father’s therapist of six
years testified. For three years, Father brought Minor to most of his weekly
sessions and the therapist observed them together. The therapist testified
that Father was attentive to Minor and his needs, Minor was very attached
to Father, and Minor became upset on one occasion when Father left. The
therapist had not observed them together since Minor’s detention in the
summer of 2017—more than two years earlier. The Agency social worker
testified that Minor’s relationship with Father was beneficial, Father acts as
a parent during supervised visits, and Minor calls Father “dad.”
        The juvenile court found Father and Minor had a beneficial
relationship, but the beneficial relationship was not so significant as to
outweigh permanency. The court terminated Father’s parental rights and set
a permanent plan of adoption.
                                  DISCUSSION
I.      Beneficial Parental Relationship Exception
        Father first argues the juvenile court erred in finding the beneficial
parental relationship exception did not apply. We disagree.




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      A.    Legal Principles
      “At a permanency planning hearing, the court may order one of three
alternatives—adoption, guardianship, or long-term foster care. [Citation.] If
a child is adoptable, there is a strong preference for adoption over the
alternative permanency plans. [Citations.] If the court determines that a
child is likely to be adopted, the burden shifts to the parent to show that
termination of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).” (In re Collin E.
(2018) 25 Cal.App.5th 647, 663.)
      “An exception to termination of parental rights applies where ‘[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).) ‘Evidence of “frequent and loving contact” is not sufficient to
establish the existence of a beneficial parental relationship.’ [Citation.]
‘ “[B]enefit from continuing the . . . relationship” ’ means the parent-child
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.’ [Citation.] ‘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 Collin E., supra, 25 Cal.App.5th at p. 663.)
      As the parties note, courts have applied different standards when
reviewing the applicability of the beneficial relationship exception: some
courts have used a substantial evidence standard, while others have applied
an abuse of discretion standard. (In re G.B. (2014) 227 Cal.App.4th 1147,
1166, fn. 7.) The issue is currently before the California Supreme Court. (In



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re Caden C., review granted July 24, 2019, S255839.) We need not weigh in
on the matter because, “[o]n the record before us, we would affirm under
either of these standards.” (In re G.B., at p. 1166, fn. 7.)
      B.    Analysis
      It is undisputed that Father maintained regular visitation and had a
beneficial relationship with Minor. The issue before us is whether the
juvenile court erred in finding the parental relationship did not outweigh the
benefits of adoption.
      Father relies on In re E.T. (2018) 31 Cal.App.5th 68. In that case,
twins were removed from their mother’s care when they were four months
old, returned after a year, and removed again after another year. (Id. at
p. 71.) The mother struggled with addiction but, with some relapses,
remained in treatment. (Id. at pp. 71–72.) The mother consistently visited
the children and talked to them on the telephone between visits. (Id. at
pp. 73–74.) The Court of Appeal found the mother “provided [the children]
comfort and affection, and she was able to ease their fear and anxiety.” (Id.
at p. 76.) Further, the four-year-old children “have spent almost half their
lives with [their m]other” and “are ‘very tied to their mother.’ ” (Id. at p. 77.)
“[D]espite denial of services, [their m]other continued to participate in
programs designed to maintain her sobriety and make her a better parent.
She has consistently tested negative for drugs, and during the dependency
remained in drug treatment, took classes in life skills, parenting, cognitive
behavior, criminal thinking, anger management and children of alcoholics
and addicts. Moreover, the insight she has into her own development and the
love and care she has for her children was clear in her testimony.” (Ibid.)
The Court of Appeal concluded, “There is no question that the twins have a




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substantial and positive attachment to [their m]other such that terminating
their familial relationship would cause them great harm.” (Ibid.)
      Father argues the reasoning of In re E.T. applies here. Father points to
his status as Minor’s primary caregiver for more than half his life.3 Father
also points to evidence that Minor exhibited distress at being separated from
Father. However, the cited evidence was outdated at the time of the section
366.26 hearing: Father’s therapist last saw Minor more than two years
earlier, and the most recent Agency report suggested Minor was no longer
having tantrums after visits. In addition, there are material differences
distinguishing this case from In re E.T. Father failed to make any
substantial efforts in treating his addiction, tested positive numerous times
throughout the dependency proceeding, and failed to enroll in a parenting
program or take other significant measures toward improving his parenting
abilities. Father missed numerous visits with Minor despite being told
repeatedly that missed visits had a negative impact on Minor. Indeed, the
Agency reported that Father did not appear to understand the impact of his
behavior on Minor. While Minor is attached to Father, Minor also quickly
developed a bond with his new foster parents. Father fails to demonstrate
the juvenile court erred in finding the beneficial relationship exception does
not apply.
II.   Exclusion of Evidence
      Father argues the juvenile court’s exclusion of certain evidence violated
his due process rights. We reject the claim.


3Father claims he was Minor’s caregiver for five years; the Agency asserts it
was only three years. Based on our review of the record, it appears that
Minor initially lived with his mother and began living with Father sometime
between August 2013 and January 2014. Father was thus Minor’s primary
caregiver for around three and a half to four years.


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      During the testimony of Father’s therapist, Father’s counsel began to
ask questions about attachment and sought to qualify the therapist as an
expert in child psychology. The juvenile court sustained objections to the
questions, reasoning it was not disputed Father and Minor had a bond, the
court had already denied Father’s request for a bonding expert, and the
therapist never provided services to Minor. The court allowed the therapist
to testify about her observations of Minor and Father.
      The exclusion of this testimony did not violate Father’s due process
rights. “ ‘Due process is a flexible concept which depends upon the
circumstances and a balancing of various factors. [Citation.] The due process
right to present evidence is limited to relevant evidence of significant
probative value to the issue before the court.’ ” (Sheri T. v. Superior Court
(2008) 166 Cal.App.4th 334, 341.) The existence of a bond was not in dispute,
the therapist never provided professional services to Minor, and the last time
she saw Minor was more than two years before the section 366.26 hearing.
The excluded evidence was not of significant probative value. For the same
reasons, the juvenile court’s exclusion of this evidence was not an abuse of
discretion.
      To the extent Father relies on arguments raised in his previous appeal
of the juvenile court’s denial of his request for a bonding study, we reject
them for the reasons set forth in our decision affirming the court’s order. (In
re H.H. (May 6, 2020, No. A158046) [nonpub opn.].) We also reject any
attempt by Father to re-raise his challenge to the bonding study denial.
                                DISPOSITION
      The order is affirmed.




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                  SIMONS, J.




We concur.




JONES, P.J.




BURNS, J.




(A159078)




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