Filed 7/29/14 In re J.W. CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




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

CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES,                                                        A140783

         Plaintiff and Respondent,                                          (Contra Costa County
                                                                            Super. Ct. No. J1200776)
         v.

T.M. et al.,

      Defendants and Appellants.
_______________________________________/

         T.M. (mother) and Joseph W. (father) appeal from the juvenile court’s termination
of their parental rights as to J.W. (daughter) following a Welfare and Institutions Code
section 366.261 hearing (.26 hearing). Mother contends her “visitation was unfairly
ma[int]ained at a minimal level.” Father claims the court erred by failing to apply the
beneficial parent-child relationship exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i))) and there was insufficient evidence daughter was adoptable. Mother
and father join each other’s briefs.
         We affirm.

1
         Unless noted, all further statutory references are to the Welfare and Institutions
Code.
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                   FACTUAL AND PROCEDURAL BACKGROUND
       We provide a brief procedural history and recite only those facts relevant to the
issues raised on appeal.
Detention, Jurisdiction, and Disposition
       Shortly after daughter was born in 2012, the Contra Costa County Children and
Family Services Bureau (Bureau) filed, and later amended, a petition alleging daughter
came within section 300, subdivision (b) because: (1) mother and father “suffer[ed] from
chronic mental health issues” limiting their ability to parent daughter safely; (2) mother
and father “engaged in ongoing domestic violence” placing daughter at risk of harm; and
(3) mother had “a chronic substance abuse problem” interfering with her ability to parent
daughter safely.2 The court detained daughter, adjudged her a dependent of the court (§
300, subd. (b)), and determined by clear and convincing evidence returning her to
parental care would cause substantial danger to her physical health. The court
determined father was a presumed father. The court ordered reunification services for
mother and father and monitored visitation twice a month. Neither parent objected to the
visitation order. Daughter was placed with paternal relatives.
Status Review and Section 388 Hearings
       At the conclusion of the six-month review hearing, the court provided additional
reunification services for mother and father. The court declined mother’s requests for
“more visits” and for unsupervised visits, as well as mother and father’s request for “a
little bit of leeway rather than just two visits for one hour a month.” At the conclusion of
the 12-month review hearing, the court terminated father’s reunification services and, at
mother’s request, authorized the Bureau to offer mother unsupervised visitation. Shortly
thereafter, the Bureau moved, pursuant to section 388, to terminate reunification services
for mother and set a .26 hearing because mother failed “to produce a clean [drug] test” in
violation of a court order. Following a hearing, the court granted the motion, terminated
mother’s reunification services, set a .26 hearing, and reduced mother’s supervised

2
       Mother had nine other children, none of whom were in her care, and 14
substantiated child welfare referrals for these children.
                                             2
visitation to one hour per month. Neither mother nor father petitioned for writ review of
the order reducing mother’s visitation and setting the .26 hearing.
The .26 hearing
       In its .26 hearing report, the Bureau recommended terminating parental rights and
finding “adoption to be the appropriate permanent plan for [daughter].” The Bureau
described daughter as an adorable, happy, and adoptable child “placed with relatives who
are committed to adopting her.” According to the Bureau, daughter had “formed a strong
attachment to her prospective adoptive family . . . [She] looks to her prospective adoptive
parents for emotional support, nurturing, and love. . . . [¶] [Daughter] and her birth
parents have not established a connected relationship that would outweigh the benefit of
legal permanence. Severing parental rights in order for [daughter] to be adopted will not
interfere in an existing parent/child relationship.” The Bureau also reported daughter’s
paternal relatives wished to adopt daughter and were not interested in guardianship.
       The Bureau noted mother “interact[ed] appropriately” during some visits with
daughter but her “mental instability” was apparent and she exhibited “concerning” and
“erratic” behavior” during other visits. During one visit, mother accused the “social
worker of being the devil and wanting to kill [daughter].” Mother also “accused other
staff members of wanting to kill her. [Mother] began convulsing and fell to the floor.
She was subsequently placed on section 5150 hold.” The Bureau reported father had
consistently visited daughter and had “interacted appropriately with [her] and
demonstrated love and concern for her.” Father, however “ha[d] acknowledged on more
than one occasion that it [was] in [daughter]’s best interest to remain with the paternal
relatives.”
       Mother and father testified at the .26 hearing. They opposed termination of
parental rights and urged the court to order a permanent plan of legal guardianship with
daughter’s caretakers. At the conclusion of the .26 hearing, the court terminated parental
rights and ordered adoption as daughter’s permanent plan. The court determined
daughter was adoptable and none of the statutory exceptions to adoption applied.


                                              3
                                       DISCUSSION
                                              I.
                              Mother’s Visitation Claim Fails
       Mother contends the order terminating her parental rights must be reversed
because the court “failed to ensure the opportunity for frequent visitation,” which she
claims precluded her from developing “a significant parent-child relationship[.]”
According to mother, “[m]ore visits would have presented an opportunity” for her to
“establish a bond prior to termination of parental rights.” Mother forfeited this claim.
She did not object to the visitation order at the dispositional hearing; she did not seek
modification of any of the visitation orders by filing a section 388 petition; and she did
not petition for writ review of the order reducing her visitation and setting a .26 hearing.
(In re Valerie A. (2007) 152 Cal.App.4th 987, 1001; In re Kevin S. (1996) 41 Cal.App.4th
882, 885-887.)
       Even if mother had preserved her argument regarding visitation, we would reject it
on the merits. “[D]ependency law affords the juvenile court great discretion in deciding
issues relating to parent-child visitation, which discretion we will not disturb on appeal
unless the juvenile court has exceeded the bounds of reason.” (In re S.H. (2011) 197
Cal.App.4th 1542, 1557-1558.) Here, the court acted well within its discretion by
ordering two supervised visits with daughter per month, and then by reducing visitation
to once a month. Mother had several “dirty” drug tests throughout the dependency. She
was unable to collaborate with daughter’s caregivers, unable to control her anger, and
refused to take medication prescribed for her mental health issues. Her behavior during
visits was inappropriate, erratic, and dangerous. The court’s visitation orders “properly
balanced” mother’s rights “with the best interests of the child” and were not an abuse of
discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) Additionally, we conclude
mother has not established the court impermissibly delegated judicial authority to the
Bureau to determine whether visitation should occur, particularly in light of her
admission that the “court may not have impermissibly delegated . . . authority to [the
Bureau] to control visitation.”

                                              4
                                           II.
           The Beneficial Parent-Child Relationship Exception Does Not Apply
       Father contends the court erred by declining to apply the beneficial parent-child
relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). To
establish the applicability of the beneficial relationship exception, father must
demonstrate he “maintained regular visitation and contact” with daughter and daughter
“would benefit from continuing the relationship” with him. (§ 366.26, subd.
(c)(1)(B)(i).)
       The beneficial relationship exception “is entirely inapplicable under the facts of
this case” because father cannot establish daughter would benefit from continuing the
parental relationship. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; see also In re G.B.
(July 9, 2014, A140107, A140624) ___ Cal.Rptr.3d ___ [2014 WL 3350689].) Father
admits his argument is “problematic.”3 He is correct. The beneficial relationship
exception is “difficult to make in the situation, such as the one here, where” father has not
“advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51
(Casey D.).) Here, substantial evidence demonstrated mother and father had not
established a connected relationship with daughter that would outweigh the benefit of
legal permanence.
       Father’s claim that he had a “developing” relationship with daughter does not alter
our conclusion. To establish the applicability of the beneficial relationship exception,
father was required to show more than an emerging relationship with daughter. (See
Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) He needed to demonstrate his
relationship with daughter promoted her well-being “‘to such a degree that it outweighs
the well-being [she] would gain in a permanent home with new, adoptive parents.’
[Citation.]” (Ibid., quoting In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Father
failed to do so. The beneficial relationship exception does not apply here. (In re C.F.
(2011) 193 Cal.App.4th 549, 555-556; In re K.P. (2012) 203 Cal.App.4th 614, 621-622.)

3
      Father concedes he “is not in a position to care for [ ] daughter full time” and that
daughter has been in the care of others since birth.
                                              5
                                           III.
                  Substantial Evidence Supports the Adoptability Finding
       Father challenges the court’s finding that daughter was likely to be adopted. “A
finding of adoptability requires ‘clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.’ [Citation.] The question of
adoptability usually focuses on whether the child’s age, physical condition and emotional
health make it difficult to find a person willing to adopt that child. [Citation.]” (In re
B.D. (2008) 159 Cal.App.4th 1218, 1231.) “On review, we determine whether the record
contains substantial evidence from which the juvenile court could find clear and
convincing evidence the child was likely to be adopted within a reasonable time.
[Citations.]” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) “The substantial
evidence standard of review is generally considered the most difficult standard of review
to meet, as it should be, because it is not the function of the reviewing court to determine
the facts. [Citation.]” (Id. at p. 589.)
       Here, substantial evidence supports the court’s adoptability finding. (In re Lukas
B. (2000) 79 Cal.App.4th 1145, 1153.) The undisputed evidence established daughter
was “an adoptable child . . . placed with relatives who [were] committed to adopting her.”
The evidence also demonstrated daughter had “formed a strong attachment to her
prospective adoptive family” and looked “to her prospective adoptive parents for
emotional support, nurturing, and love.” We are not persuaded by father’s claim that the
court should have selected guardianship instead of adoption. Contrary to father’s
argument — and in complete contrast to the cases upon which father relies — the
undisputed evidence demonstrated daughter’s caregivers wanted to adopt her and were
not interested in guardianship.




                                              6
                                   DISPOSITION
       The judgment is affirmed.




                                                 _________________________
                                                 Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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