Filed 8/29/14 In re Natalie T. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                         SECOND APPELLATE DISTRICT
                                DIVISION FOUR




In re Natalie T., a Person Coming Under the                             B252926
Juvenile Law.
                                                                        (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT                                           Super. Ct. No. CK90631)
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Appellant,

         v.

N.T.,

         Defendant and Respondent.




         APPEAL from orders of the Superior Court of Los Angeles County,
Tony L. Richardson, Judge. Reversed and remanded.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Appellant.
         Christopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Respondent.
                                ___________________________________
       In this dependency action (Welf. & Inst. Code, § 300),1 the Los Angeles County
Department of Children and Family Services appeals from section 366.26 orders that
identified legal guardianship or foster care as the child’s permanent plan. The appeal
challenges the application of the parent-child relationship exception—also called the
“benefit exception”—to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
The Department contends the trial court erred in finding the exception applies to this
case. Based on our review of the record, we conclude the finding was premature, and we
reverse and remand for further proceedings.


                                     BACKGROUND
       Natalie T. was born in 2005 to Erika B. (Mother), who is not a party to this appeal,
and respondent N.T. (Father). When Natalie came to the Department’s attention in
March 2010, she was riding with Mother in a stolen car that was driven by Mother’s
boyfriend, who crashed the car during a police pursuit. It is undisputed that Mother, who
failed to secure Natalie in a seatbelt or child safety seat, had endangered Natalie. Mother
was arrested and Natalie was released to Father’s custody.2
       The record contains almost no information concerning Natalie’s relationship with
Father prior to Mother’s arrest. We infer, however, that Mother was the primary
custodial parent based on the fact that Father, who lived apart from Mother in another
city, took several weeks to enroll Natalie in school following Mother’s arrest.
       One month after Natalie was released to his custody, Father tested positive for
drugs and entered an agreement with the Department to receive family reunification
services. Natalie was placed with relatives while Father participated in a substance abuse



       1  Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.

       2 The case against Mother was overwhelming and she does not challenge the
findings against her. Accordingly, our discussion does not focus on Mother’s role in this
case.
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treatment program. He was dismissed from the program after continuing to test positive
for drugs.
       The Department filed a section 300 petition on Natalie’s behalf in November
2011, which alleged in relevant part that she was endangered by her parents’ unresolved
substance abuse issues. (§ 300, subd. (b) [failure to protect].) Initially, Natalie was
placed in the care of a maternal aunt who lived in the home of the maternal grandmother
(Grandmother). The Department later named Grandmother as Natalie’s primary
caregiver, and Natalie has been in her care throughout these proceedings.
       In December 2011, the trial court sustained the section 300 petition and granted
family reunification services and visitation to both parents. Father was ordered to
participate in programs to address parenting, alcohol, and drug abuse issues.
       At the six-month review hearing, Father was in minimal compliance with the case
plan. Although he was enrolled in an outpatient substance abuse program, he was at risk
of being terminated for poor attendance and missed drug tests. And although he had been
allowed monitored visitation three times a week, he visited Natalie only about once a
month.
       At the time of the one-year review hearing, Father was enrolled in a residential
treatment program, but was anxious to quit after only one month and without completing
the program. Natalie was thriving in Grandmother’s care; the Grandmother wanted to
adopt her in order to provide her with a stable and permanent home. The Department
recommended a permanent plan of adoption by Grandmother, whose home study for
adoption had been approved. After finding that Father had not maintained regular contact
with the child nor made significant progress in resolving the problems that led to her
removal, the court terminated reunification services and scheduled a contested hearing for
termination of parental rights. (§ 366.26.) The court granted Father a single five-hour
monitored visit each week.
       The Department’s report for the section 366.26 hearing indicated that Father had
been arrested in April 2013 for possession of a controlled substance, and had missed


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several visits in May and June 2013. The report noted that Natalie loved living with
Grandmother, who in turn loved Natalie and wanted to adopt her.
       At the October 2013 section 366.26 hearing, Father called Natalie as a witness for
the purpose of establishing the benefit exception to adoption (§ 366.26,
subd. (c)(1)(B)(i)). She testified that she would like to live with Grandmother and visit
Father on weekends, but if that was not possible, she would still like to be adopted by
Grandmother. Grandmother is the adult in her life. It is she who talks to Natalie’s
teachers and takes her to school and to the doctor. Natalie likes visiting with Father
because she enjoys going to “fun places” like Disneyland, Knotts Berry Farm, and Soak
City, and buying things. After their visits, she misses him and wants “to stay with him a
little longer.” On the weekend before the hearing, she went to Sky Zone with her family,
but Father did not go. He took her to buy a pet fish that she keeps at his house. When
they got to his house, she played by herself with her toys. She is in third grade and does
her own homework, which she never takes to Father’s house. She would like Father to
attend school events, but has never invited him to come.
       Father’s attorney argued that in light of Natalie’s testimony, it would be in her best
interest to preserve Father’s parental rights and make Grandmother the legal guardian,
thus ensuring that Father’s visits will continue. Mother’s attorney joined in this request.
       Natalie’s attorney disagreed. She contended there were no applicable exceptions
to adoption, which was the appropriate plan in this case. She argued that Father had
failed to make the required showing that terminating his parental rights would be
detrimental to the child. Counsel stated that although Natalie had fun with Father, his
visits were not regular and he has never played a parental role in her life. And she
maintained that any incidental benefit that might be gained from the visits would not
outweigh the substantial benefits that Natalie would receive from the permanency of
adoption in a stable and loving home.
       Counsel for the Department agreed with Natalie’s attorney that the benefit
exception had not been established in this case. He also asserted there was no indication
that Grandmother would terminate Father’s visits—which had become “somewhat

                                             4
consistent and regular” during the latest period—once the adoption was finalized. He
pointed out that even during Father’s recent incarceration, Grandmother had allowed
Father’s relatives to take Natalie to visit him. He argued that any “emotional
significance” that was attached to the visits would not outweigh the benefits that would
result from the permanency of adoption.
       Over the objections of counsel for Natalie and the Department, the trial court
found the benefit exception applied because Father’s recent visits were “as regular as
they could be” during his incarceration, and Natalie wanted to continue their relationship.
The court elected not to terminate parental rights and selected legal guardianship as the
“less restrictive” placement plan. But Grandmother stated she did not want to be the
legal guardian because Father was “not behaving well” and was returning Natalie from
visits at midnight or 1 a.m. Grandmother requested that a third party handle the transfers
so Father would be “committed to returning” Natalie at the scheduled time.
       The court directed the Department to make any necessary changes to facilitate
Father’s visits. It also ordered the Department to prepare guardianship papers and
“investigate where maternal grandmother stands on legal guardianship.”
       Natalie’s attorney sought permission for Grandmother to address the court a
second time because “we have not heard from her, that she’s in agreement with the legal
guardianship.” The court denied the request, stating it had already allowed Grandmother
to speak. When counsel replied, “[s]he’s not done,” the court stated, “[s]he is done
because I said she’s done. You are done because I said you are done.” Counsel made
one last effort, pointing out, “she’s presenting information about . . . the safety of the
child which I think is relevant for this court to hear.” The court did not permit
Grandmother to speak. It adhered to its decision to forgo adoption in favor of legal
guardianship and directed counsel to present Grandmother’s safety concerns “to the
social worker.”
       At the continued section 366.26 hearing the following month, the court
acknowledged that it had derailed Natalie’s proposed adoption by Grandmother over the
“strenuous objection—maybe that is putting it mildly—of the Department as well as

                                               5
minor’s counsel,” and that Grandmother remained “adamant about adoption.” After
agreeing with the Department’s counsel that Grandmother could not be forced to accept a
legal guardianship, it granted a continuance to allow the Department to ascertain
Grandmother’s views as to legal guardianship and prepare a report of its findings.
Because the order applying the benefit exception was left in place, the possibility of
adoption was foreclosed. Seeking appellate review of that ruling, the Department timely
appealed from the October and November 2013 section 366.26 orders. (§ 395 [post-
judgment orders are appealable].)


                                      DISCUSSION
       At the section 366.26 hearing, the court selects a permanent plan for the dependent
child. Of the available options, “[a]doption is the preferred permanent plan. (In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) Freeing a child for adoption requires
termination of parental rights. ‘[I]n order to terminate parental rights, the court need only
make two findings: (1) that there is clear and convincing evidence that the minor will be
adopted; and (2) that there has been a previous determination that reunification services
shall be terminated.’ (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249–250.)” (In
re Jasmine T. (1999) 73 Cal.App.4th 209, 212.)
       The benefit exception is one of the few grounds for not terminating parental rights.
(§ 366.26, subd. (c)(1)(B)(i).) It “applies if termination of parental rights would be
detrimental to the child because 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).)” (In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
       The parent has the burden of establishing the benefit exception by showing that
“the 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.” (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.) The trial court “balances the strength and
quality of the natural parent/child relationship in a tenuous placement against the security
and the sense of belonging a new family would confer. If severing the natural

                                              6
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.” (Ibid.) “The exception
must be examined on a case-by-case basis, taking into account the many variables which
affect a parent/child bond. The 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 are some of the variables which logically affect a
parent/child bond.” (Id. at pp. 575–576.)
       On appeal, the Department contends the finding of detriment—which was made
without allowing Grandmother “to explain whether she was interested in assuming legal
guardianship over Natalie”—was erroneous and must be reversed. We agree that the
failure to consider Grandmother’s preference for adoption over legal guardianship was
erroneous.
       In order to reach an informed, intelligent and just decision, the trial court must
know and consider the material facts and evidence, and apply the correct legal principles.
(Oldham v. California Capital Fund, Inc. (2003) 109 Cal.App.4th 421, 430.) In this case,
the parties agreed that some form of placement with Grandmother would be in Natalie’s
best interest. The question presented by Father’s request to apply the benefit exception
was whether the benefit of preserving his parental rights outweighed the benefit of
providing Natalie with a permanent adoptive home with Grandmother, who did not want
to be a legal guardian. When Grandmother attempted to raise a safety concern involving
Father, who has a drug problem and was keeping Natalie out until midnight or 1 a.m., the
court refused to hear her, stating, “She is done because I said she’s done. You are done
because I said you are done.” Without considering the proffered information concerning
the potential detriment that preserving Father’s rights could pose to the child, the court
rejected the preferred plan of adoption, thus narrowing the available options to legal
guardianship or foster care.
       Because the court failed to consider the material information that Grandmother
was trying to present at the first section 366.26 hearing, the court’s finding that

                                              7
termination of parental rights would be detrimental to the child was premature. A new
hearing is required so that all relevant and material evidence may be fully considered, and
a determination made whether Father has met the considerable burden of proving the
benefit exception.
       A parent’s burden of proving the benefit exception is not easily satisfied. “A
biological parent who has failed to reunify with an adoptable child may not derail an
adoption merely by showing the child would derive some benefit from continuing
relationship maintained during periods of visitation with the parent. [Citation.]” (In re
Angel B. (2002) 97 Cal.App.4th 454, 466.) “No matter how loving and frequent the
contact, and notwithstanding the existence of an ‘emotional bond’ with the child, ‘the
parents must show that they occupy “a parental role” in the child’s life.’ (In re Andrea R.
(1999) 75 Cal.App.4th 1093, 1108 . . . .) The relationship that gives rise to this exception
to the statutory preference for adoption ‘characteristically arise[es] from day-to-day
interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’ (In re Casey D. (1999)
70 Cal.App.4th 38, 51.)” (In re K.P. (2012) 203 Cal.App.4th 614, 621 [a two-hour
monitored visit at a park or getting a bite to eat does not constitute the type of parental
bond necessary to satisfy the benefit exception to adoption].) “Because a section 366.26
hearing occurs only after the court has repeatedly found the parent unable to meet the
child’s needs, it is only in an extraordinary case that preservation of the parent’s rights
will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D.,
supra, 78 Cal.App.4th at p. 1350.)
       If preserving parental rights will threaten Natalie’s stable and loving home with
Grandmother, who does not wish to be a legal guardian because of recent difficulties with
Father’s visits, the court must weigh that negative factor against the benefit of preserving
Father’s visits. This is essential to an informed, intelligent, and just determination of the
permanent placement plan that will best serve the child’s interest. We therefore reverse
the benefit exception finding as premature, and direct the Department to gather additional
evidence regarding Grandmother’s safety concerns and preferences as to the permanent

                                              8
placement options of adoption, legal guardianship, and foster care. After receiving such
evidence, the court shall reconsider Father’s request to apply the benefit exception.


                                     DISPOSITION
       The section 366.26 orders are reversed and the matter is remanded for
reconsideration of the benefit exception to adoption.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       EDMON, J.*




        *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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