Filed 6/14/16 In re Felix N. CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                DIVISION SEVEN


In re FELIX N., a Person Coming Under                                B265695
the Juvenile Court Law.



LOS ANGELES COUNTY                                                   (Los Angeles County
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,                                                     Super. Ct. No. DK03695)

         Plaintiff and Respondent,
         v.
JOSE N.,
         Defendant and Appellant.



                   APPEAL from an order of the Superior Court of Los Angeles County,
D. Zeke Zeidler, Judge. Affirmed.
                   Christy C. Peterson, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Mary C. Wickham, County Counsel, Keith Davis, Acting Assistant County
Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

                               ____________________________________
                                   INTRODUCTION


       Jose N., the father of two-year-old Felix N., appeals from the juvenile court’s
order terminating his parental rights. Jose contends the juvenile court erred in concluding
he had not established the parent-child beneficial relationship exception to the
termination of parental rights provided by Welfare and Institutions Code section 366.26,
subdivision (c)(1)(B)(i).1 We affirm.


                 FACTUAL AND PROCEDURAL BACKGROUND


       A.     Detention, Jurisdiction, Disposition, and the Six-Month Review2
       Felix was born in September 2013. On February 10, 2014 the juvenile court
authorized the Los Angeles County Department of Children and Family Services to
detain Felix from his parents, Jose and Ashley H. The Department filed a petition
alleging that Felix was in danger of serious physical harm as a result of “violent
altercations [between Jose and Ashley] in the presence of [Felix]” (§ 300, subds. (a)
and (b)); abuse of marijuana by Jose and Ashley while caring for Felix (§ 300, subd. (b));
and the effects of Ashley’s “mental and emotional problems,” from which Jose failed to
protect Felix (§ 300, subd. (b)). At the detention hearing on February 18, 2014 the court
found a prima facie case for detaining Felix from Ashley, but released Felix to Jose over
the objections of counsel for Felix and the Department. The juvenile court ordered Jose
and Ashley “not to have contact with each other,” and ordered Jose not to be present
during Ashley’s monitored visits with Felix. Nevertheless, on March 26, 2014 Ashley

1      Statutory references are to the Welfare and Institutions Code.

2      Because Jose does not challenge any of the court’s decisions before the section
366.26 hearing, and because much of the factual and procedural background is not
relevant to the appeal, we include only a brief summary of the facts of the case. As Jose
concedes in his reply brief, this appeal involves “neither [Felix’s] return nor
reinstatement of reunification services.”

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signed an affidavit in front of a Department social worker stating that she lived with Jose
and Felix after the detention hearing (from February 15, 2014 through March 24, 2014),
and that Jose left Felix in her care when he left the house.
       On May 22, 2014, at the Department’s request, the juvenile court authorized
Felix’s removal from Jose. On May 27, 2014 the Department filed an amended petition
with additional allegations under section 300, subdivision (b), that Jose has untreated
“mental and emotional problems” that endanger Felix, and that, although the court
ordered Jose not to have contact with Ashley after the February 18, 2014 hearing, Jose
“encouraged [Ashley] to reside with him and [Felix], . . . thus exposing [Felix] to
continued verbal and violent altercations.” The court ordered Felix detained from Jose
and placed with his maternal grandparents. Since May 2014 Jose has had only
monitored, weekly visits with Felix for two hours each week.
       On July 2, 2014, five months after the court placed Felix with his grandparents,
the court held a contested jurisdiction and disposition hearing, sustained the amended
petition in its entirety, declared Felix a dependent of the court under section 300,
subdivisions (a) and (b), removed Felix from the custody of his parents, and ordered
reunification services for both parents. Jose filed a notice of appeal from the jurisdiction
findings and disposition order, but abandoned the appeal.
       At the six-month review hearing (§ 366.21, subd. (e)) on January 28, 2015, the
court terminated reunification services for both of Felix’s parents, finding they had not
made significant progress in resolving the problems that led to Felix’s removal. The
court scheduled a hearing pursuant to section 366.26 to select and implement a permanent
plan for Felix.


       B.     The Selection and Implementation Hearing and the Termination of Jose’s
              Parental Rights
       On July 14 and 15, 2015 the court held the selection and implementation hearing
pursuant to section 366.26. Jose called three Department employees to testify. Trung
Banh, a Department monitor, testified that he monitored one visit Jose had with Felix.

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Banh brought Felix to the visiting room in the car seat he had used to bring Felix to the
visit. Jose “was angry because he didn’t think the car seat fit his baby.” It turned out that
Felix weighed one pound more than the car seat’s limit. Felix left the visit in the car seat
his grandmother had, which was the appropriate size for his age and weight. Banh had no
opinion about whether Felix and Jose were closely bonded because the visit occurred
during Felix’s nap time, and Felix slept for most of the visit.
       Another Department monitor, Diana Stevson, testified that she monitored Jose’s
visits with Felix for four months in early 2015, and that during those four months Jose
missed only one visit. Stevson testified that Felix was happy to see Jose, and that Jose
greeted Felix affectionately, with “a hug or a kiss or both.” She said that Jose responded
to Felix’s needs and that she had only observed positive interactions between the two.
She testified that Jose taught Felix “right and wrong” by telling him “not to put the toys
in his mouth, because a lot of other kids play with them . . . and to sit down correctly so
he doesn’t fall,” and “he encourage[d] him to eat everything.” She described Jose as
“patient and warm,” with “a lot of enthusiasm in his tone.” She said that Felix cried for
three or four minutes when the visits ended. When asked to “describe the attachment the
child has to his father,” Stevson responded, “I would say they’re strongly bonded. The
interaction is well and warm, loving.” On cross-examination, Stevson testified that Felix
cried for the same amount of time—three or four minutes—when she picked him up from
day care to take him to the visits. Stevson also testified that at the end of one visit Jose
expressed concern about a bruise of “maybe a of couple inches” on Felix’s leg.
       Shamar McDowell, who monitored Jose’s visits with Felix for the seven months
before Stevson, testified that during that time Jose cancelled only three visits. She said
that Felix would smile when he saw Jose and seemed happy to see him. She described
Jose “interacting with [Felix] like a father would interact with a baby,” “just baby
talking,” teaching him to walk, “assisting him with toys,” and “sing[ing] to him
sometimes.” “If [Felix had] a scratch or a bruise, [Jose] would want [McDowell] to
report that.” McDowell testified that Felix often had a cold and that Jose would insist
that he see a doctor. Most of the time Felix had nothing more than a common cold, but

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on one occasion the doctor diagnosed Felix with an early stage of pneumonia and
prescribed a 10-day course of antibiotics. By the next day, Felix was behaving normally.
       The Department’s visitation logs were consistent with the visitation monitors’
testimony. For example, the notes for the December 9, 2014 visit stated that at the end of
the visit Felix “started crying for father, but stopped crying shortly after.” The December
23, 2014 notes stated that Felix started crying at the end of the visit, but “immediately
stopped crying after a few minutes.” The visitation logs also noted positive interactions
between Jose and Felix. For example, the notes for the January 6, 2015 and February 10,
2015 visits stated, “Father was happy to see [Felix] and vice versa.” On March 4, 2015,
“[t]he visit appeared to be a pleasant experience for father and son!” The March 11,
2015 notes described Felix as “a happy child who interacts well with his father.” On
May 1, 2015, “[t]here was affection and good interaction between father and son.” Both
the visitation logs and the testimony at the hearing reflect that Felix looked to Jose to
comfort him during the visits by, for example, clinging tightly to him when he saw a
stranger. The notes were also consistent with the testimony about daycare, stating that
Felix “smiled when he returned to daycare” and “cried when leaving the daycare staff.”
       Jose testified that he and Felix are “very bonded” and “have a very close
relationship,” which he described as “just a father/son relationship.” When asked how he
thought it would affect Felix if Felix never saw Jose again, Jose answered: “I think
personally, as you can tell from the history and all these reports, you know, I make sure
that he’s okay. I try to make sure he’s safe as much as I can every time I see him. And I
just feel like if I’m not there, who’s going to do that? You know, every single time he’s
had a bruise, I don’t think anybody else has ever complained about it or even noticed it.
I’m the only person that’s like, ‘this needs to be dealt with,’ and it’s not okay for a child
to have a bruise, you know, regardless of the situation. It’s just -- It’s not okay. . . .
That’s what really the Department is here for is to protect our children. And he’s coming
with bruises and illnesses and, you know, I just don’t agree with that protection or that
form of, you know, policy to protect that child. . . .” Jose also testified that “[Felix] needs
both me and his mom, as well, to show him . . . love and to be there for him.”

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       In its report for the section 366.26 hearing, the Department assessed Felix’s
current caregivers (his maternal grandparents) as follows: “Mr. and Mrs. H have been
married for 27 years. . . . They lead an active life consisting of hiking, gardening and
traveling. The couple has a solid partnership based on mutual love, respect, trust and
good communication. They are looking forward to raising Felix and exposing him to
their hobbies as he gets older. Felix will grow up in a loving, happy home environment
where all of his medical, emotional and developmental needs are met.” According to the
report, the maternal grandparents’ “adoptive home study was approved. The couple is
looking forward to adopting Felix and providing him with a stable and loving home.”
According to the Department’s Concurrent Planning Assessment, Felix’s maternal
grandmother “stated that her grandson is the light of her and her husband’s life and that
they want to ensure that he has a good life with a stable home.”
       The juvenile court found that it was likely Felix would be adopted, and the court
terminated both parents’ parental rights. As to Jose, the court explained that “when it
comes down to it, the reality is that the father has had two-hour monitored visits once a
week, and that is the extent of it.” “[A]lthough the father has shown a regular and
consistent visitation and contact and even some level of parental role and relationship[],
he has not shown at all that that outweighs the benefit of permanence and adoption when
he’s had two-hour visits once a week . . . .” The court noted that Felix’s grandparents
would “have discretion to permit ongoing contact with the parents.” Jose’s sole argument
is that the court “erred when it failed to preserve the father-son relationship by applying
the beneficial relationship exception to termination.”


                                      DISCUSSION

       “At a hearing under section 366.26, the court must select and implement a
permanent plan for a dependent child.” (In re K.P. (2012) 203 Cal.App.4th 614, 620.)
“[T]he court may order one of three alternatives: adoption, guardianship or long-term
foster care.” (In re S.B. (2008) 164 Cal.App.4th 289, 296.) “Where there is no


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probability of reunification with a parent, adoption is the preferred permanent plan.”
(In re K.P., at p. 620; see § 366.26, subd. (b) [the goal of a section 366.26 hearing is “to
provide stable, permanent homes for [dependent] children”].) Under section 366.26,
“the court must terminate parental rights and free the child for adoption if it determines
by clear and convincing evidence the child is adoptable within a reasonable time, and the
parents have not shown that termination of parental rights would be detrimental to the
child under any of the statutory exceptions . . . .” (In re D.M. (2012) 205 Cal.App.4th
283, 290; see In re S.B., at p. 296 [“[o]nce the court determines the 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)”].)
       Jose does not argue the juvenile court erred when it determined that there was no
probability of reunification and that Felix was likely to be adopted. Rather, Jose argues
that he met his burden of showing that termination of parental rights would be
detrimental to Felix under the parent-child beneficial relationship exception in section
366.26, subdivision (c)(1)(B)(i). Under this provision, the court may decide not to
terminate parental rights if it finds “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.” When deciding whether to
apply the parent-child beneficial relationship exception, “‘the court balances the strength
and quality of the natural parent/child relationship [while the child is] in a tenuous
placement against the security and the sense of belonging a new family would confer. 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 Anthony B. (2015) 239 Cal.App.4th 389, 397; see In re Marcelo B. (2012) 209
Cal.App.4th 635, 643 [“[a] beneficial relationship ‘is one that “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”’”].) Whether the parent-child beneficial

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relationship exception applies “‘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.’” (In re G.B. (2014) 227
Cal.App.4th 1147, 1166.)
       Where the juvenile court finds the parent has not established the existence of the
requisite beneficial relationship, our review is limited to determining whether the
evidence compels a finding in favor of the parent on this issue as a matter of law. (See
In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Where the juvenile court concludes
that the benefit to the child derived from preserving parental rights is not sufficiently
compelling to outweigh the benefit achieved by the permanency of adoption, we review
that ““‘quintessentially’ discretionary decision”’ for abuse of discretion. (In re K.P.,
supra, 203 Cal.App.4th at pp. 621-622; accord In re Bailey J. (2010) 189 Cal.App.4th
1308, 1314-1315.)
       The juvenile court found that Jose “has shown . . . regular and consistent visitation
and contact and even some level of parental role and relationship . . . .” The Department
does not challenge this ruling.
       The juvenile court determined, however, that Jose did not meet his burden to show
termination of parental rights would be detrimental to Felix, explaining that Jose “has not
shown . . . that [the parent-child relationship] outweighs the benefit of permanence and
adoption . . . .”   Jose argues that the juvenile court erred because “[he] and Felix shared
a strong, positive and parental attachment and Felix would benefit from continuing the
relationship.” Jose asserts that he “was Felix’s caregiver for seven months of his life and
Felix continued to display a strong attachment to Jose throughout the dependency
proceeding. During weekly visits, Felix relied on Jose to provide comfort, affection and
stimulation and he cried when the visits ended. Jose was ‘attuned and emotionally
available’ to Felix, kind and firm and understood his son’s needs. Jose was also a fierce
advocate for Felix’s health and safety.”

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       There is some evidentiary support for Jose’s characterization of the evidence he
presented at the section 366.26 hearing. Jose, however, has not shown the juvenile court
abused its discretion. “To overcome the preference for adoption and avoid termination of
the natural parent’s rights, the parent must show that severing the natural parent-child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466;
see In re C.F. (2011) 193 Cal.App.4th 549, 555 [to overcome the legislative preference in
favor of the permanency of adoption, “a parent must show more than frequent and loving
contact or pleasant visits”]; In re Brittany C. (1999) 76 Cal.App.4th 847, 853 [“[t]o
require that the parent need only show some, rather than great, harm at this stage of the
proceedings would defeat the purpose of dependency law”].) “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 a relationship maintained
during periods of visitation with the parent.” (In re Marcelo B. (2012) 209 Cal.App.4th
635, 643.)
       Jose did not show that termination of his parental rights would cause Felix great
harm. Felix lived apart from Jose, and only saw Jose for two hours each week, for more
than a year (approximately two-thirds of his life). Although Felix cried for two to three
minutes at the end of his visits with Jose, Felix cried for the same amount of time when
leaving daycare. It is true that Jose acted lovingly and appropriately toward Felix, and
that Felix responded positively to Jose and looked to him for comfort during the two
hours each week he was with Jose. These facts, however, do not show a substantial
emotional attachment such that severing the bond would cause great harm. (See
In re Jason J. (2009) 175 Cal.App.4th 922, 936; In re Angel B., supra, 97 Cal.App.4th
at p. 466; see also In re J.C. (2014) 226 Cal.App.4th 503, 530 [“a parent may [not]
establish the parent-child beneficial relationship exception by merely showing the child
derives some measure of benefit from maintaining parental contact”].) As for Jose’s
contention that Felix benefited from the relationship because Jose advocated for Felix’s
safety, there is no evidence to support the embedded assumption that Felix’s caregivers

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and potential adoptive parents were not equipped to advocate for his health and safety.
Here, as in In re Angel B., supra, 97 Cal.App.4th 454, “there was no hint in the record
before the juvenile court that [Felix] would be harmed in any way if [his] relatively brief,
albeit happy, visits with [Jose] were to end.” (Id. at p. 468.) The juvenile court did not
abuse its decision in ruling that Jose did not establish the parent-child beneficial
relationship exception.


                                       DISPOSITION


         The juvenile court’s order is affirmed.




                                            SEGAL, J.



We concur:




                  PERLUSS, P. J.




                  BLUMENFELD, 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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