Filed 8/5/14 In re J.C. CA2/4
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
                                                                 	


In re J.C., a Person Coming Under the                                   B252397
Juvenile Court Law.
LOS ANGELES COUNTY                                                      (Los Angeles County
DEPARTMENT OF CHILDREN AND                                              Super. Ct. No. CK32884)
FAMILY SERVICES,

          Plaintiff and Respondent,

          v.

D.C.,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
Carlos Vasquez, Judge. Affirmed.
          Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
          John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
                                      ______________________________




	
             D.C. (father) appeals from the order terminating his parental rights to his son, J.C.
He argues the juvenile court erred in not applying the “benefit exception” to termination
of parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)1 We find no error
and affirm the order.


                                       FACTUAL AND PROCEDURAL SUMMARY
             This matter first came to the attention of the Department of Children and Family
Services (DCFS) on February 6, 2012, when father called the Child Protection Hotline.
Father stated that C.C.2 (mother) had hit him the day before in the presence of J.C., their
eight-month-old son. Father also claimed that mother was verbally abusive, is bipolar,
and is often noncompliant with her medication. Father was diagnosed with depression in
2007, but unlike mother, he was compliant with his medication. He also consistently
attended outpatient treatment for his mental condition.
             A social worker surveyed the apartment where J.C., mother, and father were
residing and found dog feces and cockroaches throughout the residence. Father told the
social worker that he would like to have primary custody of J.C. He wanted to take J.C.
to San Diego to live with his niece (M.N.) and himself. Father had a paralyzed left arm
and needed help from M.N. to take care of J.C. On a social worker’s subsequent visit to
the apartment, father stated that J.C. had been staying with M.N. The social worker
reported that “[i]t was clear that . . . father has chosen to prioritize his relationship with
mother over caring for his child.”
             The social worker also spoke with M.N., who said that she did not think father
could take complete care of J.C., and that father and J.C. were “welcome to stay in her
home for as long as needed.” Father later consented to DCFS placing J.C. with M.N.
until he could find safe housing for J.C. and himself and develop a stable plan to care for
J.C.

																																																																																																																																																																						
              1	All	statutory	references	are	to	the	Welfare	and	Institutions	Code.	

              	
              2
                C.C. is not a party to this appeal and will only be mentioned as necessary.	
                                                                                        2	
	
       In February 2012, DCFS filed a Welfare and Institutions Code section 300 petition
on behalf of J.C. At the detention hearing, father was declared J.C.’s presumed father.
The court issued a mutual stay-away order, in which mother and father were ordered to
stay at least 100 yards away from each other. They were forbidden to contact each other.
The court ordered that because mother was the owner or renter of the apartment father
shared with her, father was to move out of the apartment. J.C. was not released to father,
as father was still residing with mother. Instead, the court ordered J.C. detained with
M.N., and father was permitted overnight unmonitored visits. Father also was to be
provided with referrals for counseling and domestic abuse counseling, at low or no cost.
       At the jurisdiction and disposition hearing in April 2012, the court declared J.C. a
dependent of the court. The court sustained two counts in regards to mother: (1) mother
is periodically unable to provide J.C. with necessary care and supervision; and
(2) domestic altercations between mother and father placed J.C. at risk of harm. The
court ordered family reunification services for father, which included individual
counseling with a DCFS approved counselor, medication compliance, and psychiatric
counseling. Father was still not to visit with mother, and he was still permitted
unmonitored visitation, including overnight visits, with J.C. at M.N.’s home.
       In October 2012, DCFS recommended that reunification services be terminated,
and that a permanent plan of adoption be instituted. According to M.N., father had
visited J.C. only four times since April 4, 2012, when the court permitted unmonitored
overnight visitations. Because of father’s disabilities, when he did visit he was unable to
dress, change, or chase after J.C. M.N. also stated that J.C. would cry during father’s
visits, though father denied this claim. The social worker reported that father had
continued his relationship with mother despite the stay away order and the social
worker’s repeated statements to father that this could jeopardize reunification with J.C.
       In March 2013, DCFS reported that J.C. had moved in with new caregivers, as
M.N. was no longer able to provide for him. Father was no longer participating in
therapy and had not visited J.C. since the previous December.


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       During a May 2013 hearing, the court terminated father’s reunification services
because he had ceased regular visitation with J.C. and had not shown that he could
provide his son with a safe environment. The court found that there was no substantial
probability that J.C. would be returned within the next six months, and that the goal for
J.C. should be adoption or legal guardianship. Father was permitted four unmonitored
visits with J.C. per month, including a visit on J.C.’s birthday.
       In September 2013, DCFS submitted a report asking the court to terminate
parental rights and order adoption as the permanent plan. DCFS stated that it was highly
likely that the caregivers would adopt J.C. According to a DCFS report on October 10,
the same day as the 366.26 hearing, father had visited J.C. only five times since May 23,
2013. Father stated that it was difficult to get to the caregivers’ residence more often
than that because he had moved to San Jacinto and the caregivers lived in Los Angeles
County. The caregivers offered to drop off and pick up J.C. at a location between their
residence and father’s residence. Father scheduled and cancelled five visits during that
period, including the court-ordered visit on J.C.’s birthday, as to which he said he would
be out of town. On other occasions, father cancelled visits because, he said, he did not
have transportation and because he had missed the train. Father claimed to visit J.C.
“every chance he gets.” The DCFS report stated that father could not take care of J.C.
during the four-hour visits, and that when he returned J.C. to the caregivers’ residence,
J.C.’s clothes and ankles were covered in feces as a result of father’s inability to clean
him.
       On October 10, 2013, the court held a contested 366.26 hearing to determine
whether to terminate father’s rights and to institute a permanent plan. Father argued that
the benefit exception to adoption should apply because, through regular visitation, J.C.
had developed a beneficial bond with father, and the strength of that bond should prevent
termination of parental rights. Father testified that he had visited J.C. three times in the
previous month, each time for about four hours, and that J.C. was happy whenever father
came to visit, but would cry whenever father had to leave. Father claimed he could not
visit J.C. more often because of the distance and his own financial constraints. The court

                                              4	
	
received two letters written on behalf of father. The letters stated that father “loves his
son” and “wants to be a part of his son’s life forever.”
       Both DCFS and J.C.’s counsel advocated adoption as the permanent plan. The
court found it would be detrimental for J.C. to be returned to father and that there was
clear and convincing evidence that J.C. was likely to be adopted. The court did not find a
compelling reason to apply the benefit exception to adoption because father had not
maintained regular visitation with J.C., nor would J.C. benefit from a continued
relationship with him.
       The court terminated father’s rights and transferred custody to DCFS for adoptive
planning and placement. It designated the caregivers as the prospective adoptive parents.
Father filed a timely appeal.
                                       DISCUSSION
                                              I
       Father and DCFS disagree about the applicable standard of review. Father argues
that we should apply the substantial evidence standard, but DCFS argues that we should
apply a composite standard of substantial evidence and abuse of discretion.
       Reviewing courts have varied in their application of a standard of review. (See In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [reviewing trial court’s
order for abuse of discretion]; contra In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207
[reviewing trial court’s order for sufficiency of evidence].) However, “[t]he practical
differences between the two standards of review are not significant.” (Jasmine D., at
p. 1351.) Broad deference must be granted to the juvenile court under both. (Ibid.) A
reviewing court should interfere with the court’s findings only if it concludes that,
“““under all the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he did.””” (Ibid.)




                                              5	
	
                                              II
       The only issue on appeal is whether the lower court erred in refusing to apply the
benefit exception to adoption. Where, as here, “the court finds that a child may not be
returned to his or her parent and is likely to be adopted, it must select adoption as the
permanent plan unless it finds that termination of parental rights would be detrimental to
the child under one of four specified exceptions.” (See In re Derek W. (1999) 73
Cal.App.4th 823, 826.) The benefit exception, one of these four exceptions, applies
where “[t]he court finds a compelling reason for determining that termination would be
detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) A compelling reason may be found
where: (1) the parent maintained regular visitation and contact with the child; and (2) the
child would benefit from continuing the relationship. (Ibid.) The parent has the burden
to show that the benefit exception applies. (In re Tabatha G. (1996) 45 Cal.App.4th
1159, 1164.)
A. Regular Visitation
       Sporadic visitation does not satisfy the first prong of the benefit exception. (In re
Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) In In re C.F. (2011) 193 Cal.App.4th
549, 554 (C.F.), the court determined that the mother’s overall visitation with the minor
child was sporadic and did not constitute regular visitation. (Ibid.) Though the mother
visited the minor regularly in the month leading up to the 366.26 hearing, during an
earlier three-month span, she had visited just three times. (Ibid.) “[She] attributed the
lack of visitation to a lack of money.” (Ibid.)
       Here, father visited less regularly than the mother in C.F., supra, 193 Cal.App.4th
549. Between April 4, 2012 and October 4, 2012, he visited J.C. only four times even
though he was permitted overnight visits at M.N.’s residence. Between December 2012
and March 2013, father did not visit J.C. at all. Although the mother in C.F. made
regular visits leading up to the 366.26 hearing, in the five months leading up to father’s
366.26 hearing, he visited J.C. only five times, even though he was permitted four visits
per month. He scheduled and cancelled five visits during that period. As in C.F., father
also stated that his lack of visitation was partly due to financial constraints. The mother’s

                                              6	
	
financial constraints in C.F. did not change the outcome of the appeal; the appellate court
affirmed termination of parental rights because the visitation was still determined to have
been sporadic. Father also argued that his lack of visitation was due to distance between
his residence and the residence of the caregivers. However, father’s visitation was
sporadic even before J.C. moved to Los Angeles County; he visited only four times
during a six-month period in which J.C. was living with M.N. In addition, the caregivers
agreed to meet father between their respective residences, yet father still failed to avail
himself of many of the visits that he was permitted.
       Father argues the court must consider the amount of visitation the parent was
allowed before determining that the visitation was irregular. For this proposition, he cites
In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537–1538.) In that case, the court did
not terminate parental rights because mother visited her minor children “for the entire
lengthy period of this dependency case, to the extent permitted by the court’s orders.”
(Id. at p. 1537) As we have discussed here, father did not visit to the extent permitted by
court order. On this record, it was reasonable to conclude that father had not regularly
visited J.C.
B. Benefit to the Child from Continuing the Relationship
       To qualify for the benefit exception, father would also would have to show that the
parent-child 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.” (See Autumn H (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) The factors to
be examined for this determination include the age of the child and the portion of the
child’s life spent in the parent’s custody. (In re Angel B. (2002) 97 Cal.App.4th 454,
467–468 (Angel B) [affirming order terminating parental rights partly because daughter
was very young at the time of the 366.26 hearing and had spent far more time with her
foster family than with her mother].) “[I]nteraction between the natural parent and child
will always confer some incidental benefit to the child.” (In re Autumn H., supra, at
p. 575.) But to satisfy this prong of the benefit exception, the parent must establish that
he or she has a parent-child relationship with the minor, which typically “arises from day-

                                              7	
	
to-day interaction, companionship, and shared experiences. [Citation.]” (Ibid.)
Additionally, the parent must show the child would suffer detriment if the parents’ rights
were terminated. (Ibid.)
       In Autumn H., supra, 27 Cal.App.4th 567, even though the father’s bi-monthly
visits conferred an incidental benefit to his child, the court still terminated parental rights
because termination would not cause a detriment to the child. (Autumn H., at p. 576.)
During visitations, the father would play with his child for about an hour; his relationship
to his child was that of a “friendly visitor” rather than a parent. (Ibid.)
       Father claims J.C. was happy whenever he came to visit, that he would take J.C. to
the park, and that J.C. was sad when father had to leave. Intermittently taking a child to
the park is not sufficient to establish the type of parent-child relationship that Autumn H.,
supra, 27 Cal.App.4th 567 prescribes. Though father’s aunt and father’s friend wrote
letters explaining that he was a good father, neither letter addressed whether a continued
relationship would be good for J.C. The caregivers stated that when J.C. returned from a
visit with father, he was covered with food, his diaper had not been cleaned, and he had
dark urine the next day.
       As in Angel B, supra, 97 Cal.App.4th 454, J.C. is very young and has spent most
of his life outside of his father’s custody. He was eight months old at the time of the
initial detention, and he is now three years old. M.N. stated that J.C. did not even
acknowledge father when he came to visit. The caregivers claimed that J.C. gets upset
and cries when left with father. J.C.’s young age and the long period of time he has lived
without a permanent home indicate that J.C. would benefit from adoption more than he
would benefit from a continued relationship with father. (See id. at pp. 467–468.)
       The evidence presented by M.N., the caregivers, and DCFS supports the
conclusion that father has not met his burden of showing that J.C. would suffer detriment
from a discontinuation of the relationship, nor a benefit from its continuation. Viewed
most favorably to the trial court’s order, the evidence shows that the court did not err
when it determined that there was not a compelling reason to select an alternative to
adoption. Therefore, we affirm the trial court’s order.

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                              DISPOSITION
     The order is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                        EPSTEIN, P. J.
We concur:



     WILLHITE, J.



     MANELLA, J.

	




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