Filed 7/22/15 Certified for Publication 8/12/15 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



In re ANTHONY B., a Person Coming                            D067577
Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                                  (San Diego County
HUMAN SERVICES,                                              Super. Ct. No. J517-817B)

         Plaintiff and Respondent,

         v.

ANTHONY B. et al.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of San Diego County, Donal B.

Donnelly, Judge. Affirmed.

         Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant

and Appellant Anthony B.

         Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant

and Appellant Anita T.




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       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

       Anthony B. (Father) appeals a juvenile court order terminating his parental rights

to the minor, Anthony B. (Anthony), and choosing adoption as the appropriate permanent

plan. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code

unless noted.) Anthony was born premature and needed to stay in the hospital. The San

Diego County Health and Human Services Agency (Agency) filed a petition under

section 300, subdivision (b) on Anthony's behalf, believing neither Anthony's mother nor

father could safely care for him.1 The Agency cited the mother's mental illness, the

father's failure to protect, the lack of a suitable living condition, and the parents' previous

separate failures to reunify with siblings due to domestic violence and substance abuse to

justify the removal. Anthony was removed from Father and his mother and placed in a

foster home. Reunification services were ordered for Father but bypassed for the mother.

The Agency requested the court terminate Father's reunification services at the 18-month

permanency review hearing because Father failed to maintain sobriety and did not have a

safe and stable environment for Anthony to live in. The court terminated Father's

parental rights at the section 366.26 hearing, finding Anthony adoptable, and that no

exception to adoption exists.

       Father alleges the court erred in finding the parent-child beneficial relationship

exception (§ 366.26 subd. (c)(1)(B)(i)) inapplicable. He contends he meets both prongs



1      The mother does not separately appeal but joins and supports the father's position.
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required by the exception and seeks a reversal of the order terminating his parental rights.

We disagree and affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                      A. Background

       In October 2012, Anthony was born premature with respiratory distress and

feeding difficulty requiring an extended stay in the neonatal intensive care unit and

specialized care. Shortly after Anthony's birth, the Agency filed a petition2 on Anthony's

behalf alleging his parents were unable to care for him at that time due to inadequate

housing, mother's mental health conditions, and Father's unawareness of the risk mother's

mental health conditions posed to Anthony. Mother had schizophrenia, bipolar disorder

and anxiety. In addition, the parents' previous separate failures to reunify with siblings

due to domestic violence, substance abuse and homelessness supported the removal.

       In January 2013, the juvenile court declared jurisdiction over Anthony. The court

removed him from parental custody, placed him in foster care, denied services to the

mother, ordered reunification services for Father and set review hearings. The court

ordered supervised visits for Father. The Agency reported Father was diligently

participating in services by completing a parenting course, maintaining employment,

attending substance abuse recovery meetings, and testing negative for drugs. He was

visiting Anthony regularly. Visitation monitors reported Father demonstrated a parental

role and responded appropriately toward Anthony.



2      The Agency filed the petition under section 300, subdivision (b).
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       At the August 2013 six-month review hearing, the juvenile court ordered six more

months of services and unsupervised visits for Father. Father remained in a relationship

with Mother and continued to reside with her. It was a risk for Mother to be present

during Father's unsupervised visits because of her severe mental health conditions and

history of aggressive behavior. The Agency created structured unsupervised visits

because Father needed some assistance with Anthony's medical conditions. Father

started unsupervised visits in October 2013 and continued acting appropriately and loving

toward Anthony.

       In December 2013, Father was kicked out of his residential hotel "for no reason"

and moved to interim housing inappropriate for Anthony to stay in overnight. He also

lost his job. The Agency recognized that these events were out of Father's control and

found that Father had been following through with everything that was required of him

during this time. Due to this, the Agency requested a continuance of three months so

Father could begin overnight visits. The juvenile court reviewed the Agency's findings

and set an 18-month permanency review hearing for April 2014.

       Father obtained a new job and appropriate housing. He continued to have

appropriate supervised and unsupervised visits with Anthony. The court continued the

April 2014 permanency review hearing to July 16, 2014, so Father could have time to

begin a 60-day trial visit. Father's first overnight visit was May 2, 2014. However,

Father was found intoxicated while having Anthony for an overnight visit on May 20,

2014. In response, the Agency filed a petition to return Father to supervised visits.

Father was discharged from his housing after he was found intoxicated a second time. He

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failed to show up for a drug test on July 7, 2014. Father continued acting appropriately

and loving toward Anthony at supervised visits.

       At the 18-month permanency review hearing, the Agency requested the court

terminate services and set a section 366.26 for Anthony. By August 2014, Anthony's

dependency case had lasted 22 months and Father was still struggling with sobriety,

continuing a relationship with Mother, and unable to provide a safe and stable

environment for Anthony to live.

       At a supervised visit on August 13, 2014, Father answered his cell phone, ignoring

the minor, and smelled of alcohol. Anthony cried and reached for the door. Father again

smelled of alcohol on his August 20, 2014 visit. Anthony's caregiver reported the visits

between Father and Anthony were traumatic for Anthony, who would consistently have

night terrors after each visit. Father reported he was sleeping on the street with Mother

and that she was unstable due to recent violent outbursts. Father missed another drug test

on August 29, 2014. The court terminated Father's services on September 5, 2014, and

set a section 366.26 hearing for December 22, 2014. Father had one visit with Anthony

between September 16 and October 7, 2014. He was arrested on October 7, 2014, for

inflicting corporal punishment on a spouse/cohabitant, possession of drug paraphernalia,

battery, and false imprisonment with violence. Father did not arrange any visits or check

on Anthony during his incarceration. Father was released on November 17, 2014, and

failed to see Anthony during the three months remaining before the section 366.26 trial.




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                            B. Anthony's Section 366.26 Trial

       The juvenile court held a section 366.26 trial on February 18, 2015. The court

received the Agency's reports and the social worker's curriculum vitae into evidence

without objection. The Agency presented evidence that Anthony was thriving under the

care of prospective adoptive parents and that they provided him a stable, suitable, and

loving home. Neither parent presented any affirmative defenses. Father's counsel asked

the court to apply the beneficial parental exception to adoption. However, the court

found Anthony adoptable by clear and convincing evidence and that Father had failed to

establish the existence of a parent-child bond sufficient to invoke the statutory exception

to adoption. The court acknowledged that although Father's visitation had "generally

been of good nature," it had not been "substantial." The court terminated parental rights

and implemented a permanent plan of adoption for Anthony.

                                      DISCUSSION

       On appeal, Father does not argue Anthony is not likely to be adopted. Rather, he

claims he carried his burden at trial of showing, by a preponderance of evidence, that it

would be detrimental to terminate his parental rights because the beneficial parental

relationship exception in section 366.26, subdivision (c)(1)(B)(i) applies. (In re C.F.

(2011) 193 Cal.App.4th 549, 553-554.) On appeal, he claims there is no substantial

evidence to support the court's contrary ruling.




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                                                I

                               APPLICABLE STANDARDS

       At a section 366.26 permanency planning hearing, the juvenile court determines a

permanent plan of care for a dependent child, which may include adoption. (In re S.B.

(2008) 164 Cal.App.4th 289, 296; In re Casey D. (1999) 70 Cal.App.4th 38, 50.) "If the

dependent child is adoptable, there is strong preference for adoption over the alternative

permanency plans." (In re S.B., supra, at p. 297; In re Michael G. (2012) 203

Cal.App.4th 580, 588.) In order to avoid termination of parental rights and adoption, a

parent has the burden of proving, by a preponderance of the evidence, that one or more of

the statutory exceptions to termination of parental rights set forth in section 366.26,

subdivision (c)(1)(A) or (B) apply. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re

Scott B. (2010) 188 Cal.App.4th 452, 469.) The court, "in exceptional circumstances,"

may "choose an option other than the norm, which remains adoption." (In re Celine R.

(2003) 31 Cal.4th 45, 53.) The parental benefit exception applies when there is a

compelling reason that the termination of parental rights would be detrimental to the

child. This exception can only be found when 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).)

       We apply the substantial evidence standard of review to the factual issue of the

existence of a beneficial parental relationship, and the abuse of discretion standard to the

determination of whether there is a compelling reason for finding that termination would

be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531; In re K.P.

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(2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308,

1314-1315.)

                                              II

                                   VISITATION PRONG

       If the court determines a child is adoptable (as Anthony is), the parent bears the

burden of showing that the termination of parental rights would be detrimental under one

of the exceptions listed in section 366.26 subdivision (c)(1). (In re S.B., supra, 164

Cal.App.4th at p. 297.) Father asserts he meets the first prong of the parental benefit

exception because he "maintained regular visitation and contact with the child" within the

meaning of section 366.26 subdivision (c)(1)(B)(i). However, the court found Father's

visits, while generally of good nature, had not been substantial. We determine whether

there is substantial evidence to support the trial court's ruling by reviewing the evidence

most favorably to the prevailing party and indulging in all legitimate and reasonable

inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

If the court's ruling is supported by substantial evidence, the reviewing court must affirm

the court's rejection of the exceptions to termination of parental rights under section

366.26, subdivision (c). (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

       "Sporadic visitation is insufficient to satisfy the first prong of the parent-child

relationship exception to adoption." (In re C.F., supra, 193 Cal.App.4th at p. 554.) The

type of parent-child relationship sufficient to derail the statutory preference for adoption

is one in which "regular visits and contact have continued or developed a significant,

positive, emotional attachment from child to parent." (In re Autumn H., supra, 27

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Cal.App.4th at p. 575.) Such relationship "arises from day-to-day interaction,

companionship and shared experiences." (Ibid.)

       While Father's visitation with Anthony was consistent and positive during a

previous period of time, during the five months preceding the section 366.26 trial Father's

visitation was, at best, sporadic. This does not amount to the regular contact and

visitation intended by the Legislature. (§ 366.26, subd. (c)(1)(B)(i); In re Elizabeth M.

(1997) 52 Cal.App.4th 318, 324.) Father was intoxicated while visiting Anthony once on

an overnight visit and twice in August 2014 during supervised visits. These visitations

were not the type that would have developed a significant or positive emotional

attachment between Father and Anthony. Based on these facts, we conclude substantial

evidence supports the court's determination that Father did not meet his burden of

establishing the first prong of the parental benefit exception.

                                              III

                             SUBSTANTIAL BENEFIT PRONG

       The issue here is not whether there was a bond between Father and Anthony. The

question is whether that relationship remained so significant and compelling in Anthony's

life that the benefit of preserving it outweighed the stability and benefits of adoption.

The " 'benefit' " necessary to trigger this exception requires 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 other words, the

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

                                               9
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 J.C., supra, 226 Cal.App.4th at pp. 528-529; In re Autumn H.,

supra, 27 Cal.App.4th 567, 575.) As described in Autumn H., the beneficial relationship

must be examined on a case-by-case basis, taking into account the many variables that

can affect the parent-child relationship. (Id. at pp. 575-576; In re J.C., supra, at p. 532.)

       Father contends the beneficial parental relationship exception should apply here.

He argues the juvenile court erred or abused its discretion by choosing adoption as the

permanent plan over guardianship or long term foster care. However, this parental

benefit exception only applies where the parent has demonstrated that the benefits to the

child in continuing the parental relationship will outweigh the benefits of permanence

through adoption. This is not such an extraordinary case, such as where an older child

has formed an enduring bond with a parent despite the parent's shortcomings, and where

it would be harmful to the child to interfere with that enduring bond. (See, e.g., In re

Scott B. (2010) 188 Cal.App.4th 452, 471.)

       Here, Father has not demonstrated any likelihood that he will be able to take

custody of Anthony within any reasonable time or that alternative placements would be

preferable. The evidence shows whatever positive emotional relationship previously

developing between Father and Anthony over the first 18 months of his life diminished

after Father went nearly five months without visiting or contacting Anthony. The court

found Father's visitation was not the type that would have cemented a parent-child bond

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as required by law. Evidence was presented that Anthony was benefitting from his

placement with prospective adoptive parents, who provided him a stable, suitable, and

loving home. The court concluded the potential benefits of adoption were not

outweighed by any benefit from maintaining Father's presumed parent status. (See In re

Cliffton B. (2000) 81 Cal.App.4th 415, 424 [balancing test applies].) Therefore,

substantial evidence supports the court's finding that Father did not satisfy the second

prong of the beneficial parent-child relationship exception. For these reasons, the

juvenile court did not err or abuse its discretion in ruling the parental benefit exception to

adoption was not applicable here. (§ 366.26, subd. (c)(1)(B)(i).)

                                       DISPOSITION

       The order is affirmed.




                                                                    HUFFMAN, Acting P. J.

WE CONCUR:


                    McINTYRE, J.


                        AARON, J.




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Filed 8/12/15
                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



In re ANTHONY B., a Person Coming                 D067577
Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                       (San Diego County
HUMAN SERVICES,                                   Super. Ct. No. J517-817B)

        Plaintiff and Respondent,

        v.

ANTHONY B. et al.,

        Defendant and Appellant.




THE COURT:

        The opinion filed July 22, 2015, is ordered certified for publication.




                                                                   HUFFMAN, Acting P. J.

Copies to: All parties




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