Filed 12/9/13 In re O.N. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



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

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E058319

         Plaintiff and Respondent,                                       (Super.Ct.No. J238022)

v.                                                                       OPINION

C.N. et al.,

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

         Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and

Appellant C.N.

         William D. Caldwell, under appointment by the Court of Appeal, for Defendant

and Appellant J.O.

                                                             1
       Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel, for

Plaintiff and Respondent.

       J.O. (father) and C.N. (mother) appeal an order terminating their parental rights to

their daughter, O.N. Both assert that the court should have applied the beneficial parental

relationship exception to the statutory preference for adoption, and J.O. also asserts that

he was denied substantive due process because the termination of his parental rights was

based solely on C.N.’s mental illness rather than on his own unfitness as a parent.

       We will affirm the judgment.

                      FACTUAL AND PROCEDURAL HISTORY

       O.N. was detained at birth because mother, who has a history of schizophrenia and

bipolar disorder, had discontinued her medications during her pregnancy to protect the

health of the baby and did not appear capable of caring for an infant. At the hospital,

mother said “numerous times” that the baby was crying and needed to be fed, even

though the baby was asleep, and would wake her up to feed her. In addition, mother’s

moods were unstable and she could not stay focused during conversation.

       When a social worker arrived at the hospital, she observed that mother was

agitated and that she conversed in a disjointed manner, talking over the social worker,

apparently making up grandiose stories about her life, and discussing topics unrelated to

the subject of the conversation. Father was present, and indicated that he had concerns

about mother’s ability to care for the baby, based on her combativeness with him during

the pregnancy while she was not taking her medications and seeing and hearing things

that were not there. The social worker contacted the maternal grandmother and the

                                              2
paternal grandfather, and both expressed concern about mother’s ability to care for the

baby and about father’s ability to control mother if she became aggressive.

        The Department of Children and Family Services (CFS) reported that mother had

lost custody of her first child, S.N., who had been removed from mother at birth in 2009,

and had ultimately been adopted by the maternal grandmother.

        A petition pursuant to Welfare and Institutions Code section 3001 was filed,

alleging that O.N. came within subdivision (b) (failure to protect) as to both parents and

subdivision (j) (abuse of sibling) as to mother. Specifically, the petition alleged that

mother suffered from mental health issues that impaired her ability to care for and

supervise O.N., that she suffered from a substance abuse problem, and that she had

engaged in incidents of domestic violence with father. As to father, the petition alleged

that he was unable to protect O.N. from mother’s unpredictable and sometimes violent

behavior, and that he had a history of battery against mother. The petition also alleged

that O.N.’s half sibling, S.N., had been removed from mother due to mother’s inability to

care for and supervise her appropriately, and that O.N. was at risk of similar neglect.

S.N. had been removed because of mother’s mental illness and substance abuse.

        On March 21, 2011, the juvenile court ordered O.N. detained outside the parents’

home.

        The jurisdiction/disposition report dated April 11, 2011, recommended services

for both parents. The report stated that mother had recently been assessed by her


        1   All further statutory citations refer to the Welfare and Institutions Code.

                                                3
psychiatrist, Dr. Nakai. Dr. Nakai diagnosed her with schizoaffective disorder, bipolar

type. He stated that she suffered from poor concentration, flight of ideas, delusional

thought content and extreme paranoia. He stated that mother’s severe depression,

irritability, anxiety, insomnia, obsessions and paranoia prevented her from functioning at

home.

        The report stated that father had been convicted of battery on February 17, 2011,

and was on probation until February 16, 2014. The police report attached to the

jurisdiction/disposition report stated that father had tackled mother at a neighbor’s

apartment and had attempted to drag her out of the apartment by her feet. Father was

extremely intoxicated and refused to provide a statement. The report also stated that

when O.N. was removed from her parents, mother was verbally aggressive toward father

and threatened to end their relationship. Father’s family members stated that they were

afraid of mother’s unpredictable and hostile behavior.

        Mother reported that she had seizures as a baby and that she had taken medication

for attention deficit disorder (ADD) since she was two years old. She reported that she

had suffered a head injury in car accident when she was seven years old. She had taken

medication for schizophrenia for many years. She reported that the medications she had

been taking since O.N.’s birth were gradually improving her mood and behavior.

        Father had used illegal drugs when he was younger. He had received treatment

and had stopped using drugs when he was 20 years old. He and mother had been in a

relationship for about two years before O.N. was born. They lived together and father

was present at O.N.’s birth and was named as the father on O.N.’s birth certificate.

                                             4
Father’s family was willing to provide support for the parents’ reunification with O.N.

O.N. was placed in the care of the paternal grandfather, who lived with the paternal great-

grandparents and a paternal great-aunt. All of these relatives provided care for O.N. The

parents called daily to receive updates about O.N. and were having visits at the relatives’

home.

        The report described the first visit between O.N. and her parents at the CFS office.

Mother became angry and began to yell when a social worker attempted to assist in

changing the baby’s diaper. She accused the male social worker of trying to look down

the baby’s pants. She was verbally aggressive toward father and yelled at the security

guard as she left the office. After the first visit, however, mother became less aggressive

and reported feeling much happier. The parents generally did well during visits, although

mother would frequently stare off into space. After March 29, 2011, CFS authorized

visits at the caregiver’s home twice a week. The paternal grandfather was to supervise

the visits.

        The addendum report prepared for the jurisidiction/disposition hearing stated that

father had been arrested on April 14, 2011, on a warrant concerning a 2008 battery. He

was expected to be released on November 5, 2011.2 CFS recommended reunification

services for father. CFS did not recommend reunification services for mother, based on

her severe mental disability and because her parental rights to O.N.’s half sister had been


        2 Father was present at the jurisdiction/disposition hearing on June 14, 2011. It is
not clear when he was released from custody.


                                              5
terminated. Two psychological evaluations obtained during the dependency proceedings

concerning O.N.’s half sister indicated that because of mother’s complex mental

problems, it would not be safe for mother to care for an infant.

          Mother’s continuing mental problems were underscored by the report from the

paternal relatives that they were caring for her during father’s incarceration, visiting her

every morning to check on her. On April 17, 2011, she accused family members of

trying to kidnap O.N., leading the family to believe that she had not taken her medication

the night before. In addition, in the second addendum report prepared for the

jurisdiction/disposition hearing, CFS reported an incident on June 7, 2011, when father

came to the caregiver’s home to pick up his car. The paternal grandfather asked mother

to stay outside, but instead she went into the house and picked up O.N. and began to

change her diaper. She “body-slammed” the paternal great-aunt when she asked mother

to put the baby down. Mother then grabbed the baby by one arm and ran out of the

house. After that incident, the paternal relatives asked that visits take place at the CFS

office.

          The family was also concerned because O.N. would cry when mother held her,

and because mother would become angry when asked to hold O.N. correctly or asked not

to smoke in O.N.’s presence. They also reported that during a visit at the CFS office on

June 9, 2011, mother accused the paternal grandfather of putting his hand on O.N.’s

crotch and said that the paternal grandfather had raped mother six times. The security

guard reported that when mother arrived for the visit, she accused him of fondling her at

Walmart.

                                              6
      At the contested jurisdiction/disposition hearing, testimony was received

concerning the body-slamming incident. Father admitted that he was unable to control

mother and could not keep her from entering the house. The court found the allegations

of the petition true, and found by clear and convincing evidence that removing O.N. from

her parents’ physical custody was necessary to protect her from substantial danger to her

physical or emotional well-being. The court ordered continued reunification services to

father and none for mother. The court declared father O.N.’s presumed father. Father

was given monitored visitation once a week. Visitation between mother and O.N. was

suspended because the court determined that it was detrimental to O.N.

      Mother filed a petition for modification, seeking reinstatement of visitation. The

petition was granted on November 8, 2011.

      During the months following the jurisdiction/disposition hearing, mother and

father visited O.N. frequently. Father took a parenting class and a 52-week domestic

violence class and participated in individual counseling. He and mother voluntarily

engaged in couples counseling and mother voluntarily took a parenting class. Both

parents completed the parenting class. Father later completed the domestic violence

class. Visitation generally went well, and both parents were affectionate and caring

toward O.N., although mother would occasionally leave O.N. alone and “just walk

away.” However, by the time of the 18-month review hearing, mother’s on-going mental

health issues caused continued concern about her ability to provide adequate care and

supervision. Although CFS believed that reunification with father remained a possibility,

it could not recommend returning O.N. to father’s care as long as he remained with

                                            7
mother because, as father admitted, he could not supervise mother at all times, and

mother remained a risk to O.N.’s safety. Despite being warned that mother’s mental

health made reunification with father unlikely as long as he remained with mother, the

couple married during the 18-month reporting period.

       At the 18-month review hearing, father admitted that he could not safely leave

O.N. alone in the house with mother, although he did think it was safe to leave her alone

in a room with mother, if he was in the house. He also testified that if he were ordered to

live separately from mother, he did not know how he could keep her from coming over.

When asked if he could choose between O.N. and mother, father was unable to answer

the question.

       The court concluded that the evidence showed that there would be a substantial

risk to O.N. if she were returned to father, because she could not safely be left with

mother unless mother had constant supervision. The court found that O.N. could not

safely be returned to father based on mother’s mental illness. The court found that

placing O.N. in father’s custody continued to be detrimental to O.N. It terminated

father’s services and set a section 366.26 hearing. The court ordered continued visitation

for both parents. The court informed the parents of their right to obtain review of the

order by writ petition.

       On December 14, 2012, the court authorized placement of O.N. with her paternal

great-aunt and uncle, who were interested in adopting O.N., after concerns had been

raised about the appropriateness of her prior placement with the paternal grandfather.

O.N. moved to the home of her great-aunt and uncle on January 9, 2013.

                                             8
       Shortly before the section 366.26 hearing, both parents filed petitions for

modification pursuant to section 388. Mother’s petition was summarily denied, as it

stated no new evidence or changed circumstances. Father’s petition was set for a hearing

concurrent with the section 366.26 hearing.

       At the section 366.26 hearing, a social worker testified that during the visits she

had supervised, both parents had good interactions with O.N., but father guided mother

on caring for her. She observed that O.N. would smile upon seeing her parents and

would go to them, but mostly to father. She testified that mother’s psychiatrist had told

her that mother was taking her medication but would not give an opinion as to mother’s

ability to care for her daughter. She testified that the parents told her they had seen the

psychiatrist’s associate to obtain an assessment of mother’s interactions with O.N., but

that they had not produced a report of the findings. The social worker believed that

father could parent O.N. on his own, with assistance. She believed that he needed to have

someone watching him to make sure he dealt with O.N. appropriately and safely.

       The social worker testified that she was concerned about “what happens” if O.N.

were returned to both parents and mother failed to take her medication and was acting as

O.N.’s sole supervisor at that time. She testified that she had told father before the

marriage that return of O.N. to his care alone was a possibility. However, father replied

that he loved mother and did not want to be without her. The social worker believed this

demonstrated that reunifying with O.N. was not father’s first priority and showed that he

was not willing to protect her. She recommended terminating parental rights because



                                              9
O.N. would be at risk if mother failed to take her medication or if her medication stopped

working.

       Father testified that he visited O.N. three or four times a week when he was not

working. O.N. called him “dada” and called mother “mama.” He testified that he

believed that mother was capable of caring for O.N. on her own, but that if he was

ordered not to leave her alone with mother, he would see to it that O.N. went to day care

or stayed with a relative while he was at work. He did not believe O.N. would be at risk

if mother were the sole caregiver while he was briefly unavailable, such as while taking a

shower. Father testified that he had completed his case plan in February 2012.

       The court found that there was no evidence that father could independently care

for O.N. and no expert evidence that mother’s behavior would not put O.N. at risk. The

court also found that there was no evidence that either parent occupied a parental role for

O.N. Rather, he saw only evidence of loving contact. The court found that the burden of

proof as to the beneficial parental relationship exception was not met. The court denied

father’s section 388 petition, terminated parental rights and selected adoption as the

permanent plan.

       Both parents filed timely notices of appeal.

                                      DISCUSSION

                                             1.

            FATHER WAS NOT DENIED SUBSTANTIVE DUE PROCESS

       Father contends that he was denied substantive due process because his parental

rights were terminated based not on his unfitness as a parent but solely because mother’s

                                             10
mental illness was found to render her a risk to O.N.’s well-being. This is simply not the

case. At the jurisdiction/disposition hearing, the court found true the allegation that

father was unable to protect O.N. from mother’s unpredictable and sometimes violent

behavior, and it found, by clear and convincing evidence, that there was no reasonable

means of protecting O.N. without removing her from the custody of both parents. The

evidence, recited above, supports the continued findings that mother could not safely and

adequately care for O.N. on her own and that father could not adequately care for and

supervise both O.N. and mother.

       Father relies on In re T.G. (2013) 215 Cal.App.4th 1, in which the court found that

a father was denied due process because his parental rights were terminated without any

finding of unfitness having been made as to him. In re T.G. is inapposite, however,

because in that case, there was no finding by clear and convincing evidence that the

child’s safety and well-being required removal from the father’s custody. (Id. at pp. 14-

23.) Here, in contrast, such findings were made by the requisite clear and convincing

evidence. Accordingly, father was afforded due process. (See Cynthia D. v. Superior

Court (1993) 5 Cal.4th 242, 254-256.)

       Father also contends that the detriment findings as to him were deficient.

However, because detriment findings were made—in contrast to the situation in In re

T.G., supra, 215 Cal.App.4th 1—father was required to address any perceived

deficiencies in those findings in a direct appeal from the disposition order or the

subsequent periodic review orders (§ 395), or to file a writ petition from the order

terminating services and setting the matter for a section 366.26 hearing. Because he did

                                             11
not do so,3 his contentions as to the factual or legal insufficiency of those orders are not

cognizable in this appeal. (§ 366.26, subd. (l)(1), (l)(2); Cal. Rules of Court, rule

5.695(h).)

                                              2.

   NEITHER PARENT MET THE BURDEN OF PROOF WITH RESPECT TO THE

                      BENEFICIAL PARENT-CHILD EXCEPTION

       Both parents contend that the juvenile court should have found that the beneficial

parental relationship exception to the statutory preference for adoption applied and that

the order terminating their parental rights must be reversed.

       “Adoption must be selected as the permanent plan for an adoptable child and

parental rights terminated unless the 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).)” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)

Under these provisions, “the court must order adoption and its necessary consequence,

termination of parental rights, unless one of the specified circumstances provides a

compelling reason for finding that termination of parental rights would be detrimental to

the child. The specified statutory circumstances . . . ‘must be considered in view of the


       3  We take judicial notice that father filed a “no issue” writ, and that we dismissed
the petition on November 5, 2012. (J.O. v. Superior Court, E057260; Evid. Code, § 452,
subd. (b).)

                                             12
legislative preference for adoption when reunification efforts have failed.’” (In re

Celine R. (2003) 31 Cal.4th 45, 53, italics added (Celine R.).) “‘Adoption is the

Legislature’s first choice because it gives the child the best chance at [a full] emotional

commitment from a responsible caretaker.’” (Ibid.)

       The parent has the burden of establishing by a preponderance of the evidence that

a statutory exception to adoption applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

The parent must show both that a beneficial parental relationship exists and that severing

that relationship would result in great harm to the child. (Id. at pp. 1314-1315.) A

juvenile court’s finding that the beneficial parental relationship exception does not apply

is reviewed in part under the substantial evidence standard and in part for abuse of

discretion: The factual finding, i.e., whether a beneficial parental relationship exists, is

reviewed for substantial evidence, while the court’s determination that the relationship

does or does not constitute a “compelling reason” (Celine R., supra, 31 Cal.4th at p. 53)

for finding that termination of parental rights would be detrimental is reviewed for abuse

of discretion. (Bailey J., at pp. 1314-1315.)

       Both parents argue that substantial evidence supports the conclusion that a

beneficial parental relationship existed. However, since it is the parent who bears the

burden of producing evidence of the existence of a beneficial parental relationship, it is

not enough that the evidence supported such a finding; the question on appeal is whether

the evidence compels such a finding as a matter of law. (In re I.W. (2009) 180

Cal.App.4th 1517, 1528.) As the court in In re I.W. discussed, the substantial evidence

rule is typically implicated when a defendant contends that the plaintiff succeeded at trial

                                                13
in spite of insufficient evidence. When, however, the trier of fact has expressly or

implicitly concluded that the party with the burden of proof did not carry the burden and

that party appeals, “it is misleading to characterize the failure-of-proof issue as whether

substantial evidence supports the judgment. This follows because such a characterization

is conceptually one that allows an attack on (1) the evidence supporting the party who

had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party

with the burden did not prove one or more elements of the case [citations]. [¶] Thus,

where the issue on appeal turns on a failure of proof at trial, the question for a reviewing

court becomes whether the evidence compels a finding in favor of the appellant as a

matter of law. [Citations.] Specifically, the question becomes whether the [parent’s]

evidence was (1) uncontradicted and unimpeached and (2) of such character and weight

as to leave no room for a judicial determination that it was insufficient to support a

finding [in the parent’s favor]. [Citation.]” (Ibid., internal quotations marks omitted.)

Accordingly, unless the undisputed facts established the existence of a beneficial

relationship as a matter of law, a substantial evidence challenge to this component of the

juvenile court’s determination cannot succeed. (Bailey J., supra, 189 Cal.App.4th at

p. 1314.)

       Here, there is evidence which arguably would have supported a finding that a

beneficial parental relationship existed between O.N. and her parents. The evidence

showed that both acted in a parental manner while visiting O.N., that O.N. called them

“mama” and “dada,” and that she shared a bond with both parents. And, we agree with

mother that the existence of a beneficial parental relationship does not depend on the

                                             14
child having a primary attachment to the parent or on the parent being the child’s primary

caretaker. Rather, the exception may apply if the child has a “substantial, positive

emotional attachment” to the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

However, even if the juvenile court could have found that O.N. shared a beneficial

relationship with her parents, that does not mean that the evidence compelled such a

finding. It did not.

       In any event, even if we assume, for the sake of argument, that the evidence does

compel the conclusion that a beneficial parental relationship existed, the ultimate

question we must decide is whether the juvenile court abused its discretion by failing to

find that termination of parental rights would be so detrimental to O.N. as to overcome

the strong legislative preference for adoption. That decision is entrusted to the sound

discretion of the juvenile court. (Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.)

We cannot find an abuse of discretion unless the juvenile court exceeded the bounds of

reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “‘“When two or more

inferences can reasonably be deduced from the facts, the reviewing court has no authority

to substitute its decision for that of the trial court.”’” (Id. at p. 319.)

       Here, O.N. was removed from her parents’ custody as a newborn and she never

lived with them. She was only a year and a half old when parental rights were

terminated, and she had never spent even a single night in the parents’ home. Even

though she called them “mama” and “dada,” it is not clear that she actually understood

that they were her parents or viewed them as parental figures. There was no evidence

whatsoever that O.N. would suffer great detriment if parental rights were terminated.

                                                15
Consequently, we cannot say it was an abuse of discretion to fail to conclude that the

exception did not apply.

       Both parents liken this case to In re S.B. (2008) 164 Cal.App.4th 289. In that case,

the appellate court reversed a termination order, holding that, contrary to the juvenile

court’s ruling, the only reasonable inference from the evidence was that the beneficial

parental relationship exception applied. In reaching that decision, the court noted that the

father maintained regular, consistent and appropriate visitation with the child; he was the

child’s primary caretaker for three years; when she was removed from his custody he

immediately acknowledged his drug use was untenable, started services, maintained his

sobriety, sought medical and psychoanalytic services and complied with every aspect of

his case plan; and after a year apart the child continued to display a strong attachment to

her father. (Id. at p. 298.) The court stated: “The record shows S.B. loved her father,

wanted their relationship to continue and derived some measure of benefit from his visits.

Based on this record, the only reasonable inference is that S.B. would be greatly harmed

by the loss of her significant, positive relationship with [her father].” (Id. at pp. 300-301,

italics added.) However, the same court which decided In re S.B. later warned that it was

an extraordinary case and must be viewed in light of its particular facts. The court

emphasized that the opinion “does not, of course, stand for the proposition that a

termination order is subject to reversal whenever there is ‘some measure of benefit’ in

continued contact between parent and child.” (In re Jason J. (2009) 175 Cal.App.4th

922, 937; see also In re C.F. (2011) 193 Cal.App.4th 549, 557-559.) Rather, there must

be evidence that the relationship “promotes the well-being of the child to such a degree as

                                              16
to outweigh the well-being the child would gain in a permanent home with new, adoptive

parents” and that severance of the relationship “would deprive the child of a substantial,

positive emotional attachment such that the child would be greatly harmed.” (In re

Autumn H., supra, 27 Cal.App.4th at p. 575.) Here, there simply is no such evidence.

       Mother also cites In re Brandon C. (1999) 71 Cal.App.4th 1530. Brandon C.,

however, is a social services agency’s appeal from an order for guardianship rather than

adoption based on the beneficial parental relationship exception. (Id. at p. 1533.) In that

case, the court held that substantial evidence supported the juvenile court’s decision to

find the exception applicable. (Id. at pp. 1534-1538.) The question before us, however,

is whether the juvenile court abused its discretion by finding the exception not applicable.

Brandon C. does not provide any guidance on that issue.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                McKINSTER
                                                                                Acting P. J.
We concur:



RICHLI
                          J.



CODRINGTON
                          J.


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