Filed 4/8/15 In re K.S. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re K.S., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G051035
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP023489)
         v.
                                                                       OPINION
C.S.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   William Hook, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Kristen
Lecong, Deputy County Counsel, for Plaintiff and Respondent.
                                  *          *            *
                                      INTRODUCTION
              The juvenile court found, pursuant to Welfare and Institutions Code
section 366.26, that five-year-old K.S. was adoptable, and that none of the exceptions to
termination of parental rights applied. (All further statutory references are to the Welfare
and Institutions Code.) The court therefore terminated the parental rights of K.S.’s
parents, C.S. (father) and A.C. (mother). Father appeals. Because substantial evidence
supports the juvenile court’s findings, we affirm the order.
                   STATEMENT OF FACTS AND PROCEDURAL HISTORY
              In January 2013, three-year-old K.S. was living with father, as well as
father’s parents and father’s adult brother. Mother was living in Sacramento County with
K.S.’s older sibling and younger half sibling. K.S. was developmentally delayed, and
possibly mildly autistic. On January 25, 2013, K.S. got out of her home, chased her dog
across a busy intersection, and ran to a nearby school. This was the third time she had
gotten out of her home without an adult noticing or stopping her. A social worker with
the Orange County Social Services Agency (SSA) investigated; SSA and father agreed to
a safety plan, by which father would install a front door key lock by February 5, 2013,
and would ensure that K.S. was supervised at all times.
              On February 7, however, K.S. again got out of her home, ran across the
busy intersection, and went to the same school. The social worker found that father had
not yet installed the necessary lock on the door. Father claimed that his brother, who was
supposed to be supervising K.S., had left without telling him. Father’s speech appeared
to be slow and unclear.
              The social worker’s investigation revealed 11 child abuse referrals
involving K.S.’s family between 2004 and 2013, which raised claims of general neglect,

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domestic violence, and drug abuse. Father had signed at least four safety plans with SSA
since October 2010, and had received voluntary family services from SSA in October
2010.
               K.S. was taken into protective custody. A juvenile dependency petition
was filed, alleging K.S. came within the juvenile court’s jurisdiction pursuant to
section 300, subdivision (b). The petition alleged (1) K.S. was at risk of harm because
father had failed to supervise her properly and had failed to follow through with the
agreed-upon safety plan; (2) father had a history of substance abuse, mental health issues,
domestic violence, and crime; (3) mother had a history of mental health issues, cognitive
delays, substance abuse, and domestic violence; (4) mother had failed to maintain a
relationship with K.S. for a year; and (5) mother had recently had two other children
removed from her care under section 300, subdivision (b).1 Following a detention
hearing, the juvenile court ordered K.S. to be detained, and ordered that mother and
father have two hours of monitored visitation twice a week.
               Before the joint jurisdiction and disposition hearing, SSA reported that K.S.
had adjusted well to her placement, and was regularly visiting with father and her
paternal grandparents. Father had started participating in services, and was open and
receptive to feedback. Father had no missed or positive drug tests.
               SSA recommended that mother and father be provided with reunification
services, but that K.S. not be returned to their custody: “The Court has for its
consideration the safety and well being of the child . . . age 3 years old, who was brought
to the attention of the Juvenile Court after the mother . . . and father . . . failed to protect
the child, due to the father allowing the child to leave the home without proper
supervision, and the mother living out of the area. It appears that the father and

               1
                The day before K.S. was taken into protective custody, her sibling and
half sibling were detained in Sacramento County because of domestic violence between
mother and mother’s boyfriend.

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mother[ had] unresolved substance abuse problems and a history of domestic violence in
front of the child. . . . [¶] . . . [¶] The father has been forthcoming and shows remorse for
allowing the child to leave the house unattended on several different occasions, although
continually making excuses for his lack of supervision of the child. It also appears that
the father does not understand the significance of the potential consequences of allowing
a developmentally delayed three year old child [to] escape the home to cross a very busy
intersection unattended. [¶] It also appears that the father may have mental health or
developmental concerns, as his processing and speech appear slow and at times
confusing. In December 2011, the father’s driver’s license was suspended due to
suspicious behavior[,] resulting in the need to show proof of a mental health evaluation
before the license would be restored. However, the father has failed to follow through
with this task. . . . [¶] The parents also have a significant history of domestic violence,
including physical and verbal altercations in the presence of the child, resulting [in] the
involvement of law enforcement. [¶] Through self-reports as well as police call logs, it
appears that the parents have a history of substance abuse, including marijuana and
methamphetamine[,] without showing proof of a substance abuse treatment program.”
              After the hearing, the juvenile court found the allegations in the
dependency petition to be true, declared K.S. to be a dependent of the juvenile court, and
placed her in foster care. The court approved the case plan and visitation plan.
              In the six-month status review report, the social worker reported that
father’s compliance with the case plan was moderate. Father regularly attended and was
cooperative at individual counseling sessions. He had no missed or positive drug tests
through August 2013, but tested positive for amphetamine and methamphetamine in
September. Father regularly visited with K.S., although he was described as having only
“marginal parenting skills.” After K.S. was placed with a foster family, father missed
several visits. K.S. asked for father, and got upset when he missed or cancelled visits.



                                              4
              In the 12-month status review report, it was noted that father had been
authorized to have six hours of monitored visitation per week. Father’s compliance with
the case plan was again reported to be moderate. Father had no missed or positive drug
tests. He completed the required parenting class and outpatient drug treatment program.
Father did not use all of his allotted visitation time and cancelled some visits. He did not
accept an offer to make up visits when K.S. went out of town with her foster parents.
K.S.’s behavior was worse after visits with father, and she had tantrums and did not want
to see him. Father requested a paternity test to be sure he was K.S.’s biological father.
SSA reported that mother had not participated in any services, had tested positive for
methamphetamine, and was incarcerated in November 2013 for domestic violence and
drug possession. Mother’s reunification services were terminated, and father was given a
further six months of services.
              During the 18-month review period, the paternal grandfather died. Father
stopped visiting K.S. and stopped participating in reunification services. Father missed
multiple drug tests. He also missed the annual review for K.S.’s individualized education
plan.
              SSA reported that K.S. was in a safe, stable, and loving foster home, and
she was able to walk, run, jump, draw, and communicate. She was making progress in
preschool. At the conclusion of the 18-month review hearing, the court terminated
father’s reunification services, and set the matter for a hearing under section 366.26 to
select a permanent plan for K.S.
              In the permanency hearing report, SSA advised the court that father had
resumed visitation with K.S., but had missed many drug tests, and had tested positive for
methamphetamines.
              K.S. was by that time five years old, and was an active, energetic child who
could walk, run, swim, and ride a bicycle with training wheels, and was toilet trained.
She was observed to be happy, comfortable, and content in her environment. K.S.’s

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foster parents had expressed interest in adopting her, and wanted her to have contact with
her sibling and half sibling who were residing with prospective adoptive parents in
Sacramento.
               At the end of the hearing, the court found by clear and convincing evidence
that K.S. was adoptable, and terminated mother’s and father’s parental rights. The court
also found that none of the exceptions to adoption applied. As is relevant to the issues
presented by this appeal, the court made the following findings on the record: “I find that
termination of parental rights would not be detrimental to the child and that, in fact, the
child’s interests will be promoted by this termination. . . . [¶] . . . [¶] And the exception
that’s been, at least, identified by father’s counsel is what is known as the parental benefit
exception. That exception requires that the parents carry the burden to show that they
have engaged in regular and consistent visitation with the child as the first prong, and as
the second, that they have to also show that the relationship that exists between that
parent and the child is so beneficial that to terminate that relationship would be
detrimental to the child or cause great harm to the child. [¶] That evidence has not been
forthcoming. The court has no evidence to support a finding that there has been regular
and consistent visitation, nor is there evidence that suggests that . . . the relationship that
exists between the parents and the child is such that it would outweigh the benefit that the
child would have for a permanent and stable home through adoption. [¶] I fully
understand the comments made by the paternal grandmother and I sympathize with the
situation that this family finds itself in and it’s truly tragic when the court has to terminate
parental rights between children and parents that truly love each other and I accept your
representation that that’s true. [¶] . . . [¶] . . . But K[.S.] cannot wait for her parents to be
ready to parent her and because of that, the statutes that the Legislature has directed that
we have to, at these hearings, determine a permanent plan, and so the court is required by
law to terminate parental rights at this stage with the evidence that I have before me.”



                                                6
              The court therefore ordered adoption as K.S.’s permanent plan. Father filed
a timely notice of appeal. Mother did not appeal.


                                        DISCUSSION
              The sole issue father raises on appeal is whether the juvenile court erred in
concluding that the section 366.26, subdivision (c)(1)(B)(i) exception to termination of
parental rights did not apply. Section 366.26, subdivision (c)(1)(B)(i) allows the juvenile
court to decline to terminate parental rights over an adoptable child if it finds “a
compelling reason for determining 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.” Father has the burden of
proving both prongs of the parent-child relationship exception were satisfied. (In re
L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence
supported the juvenile court’s determination the parent-child relationship exception did
not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
              The juvenile court’s finding that father had not maintained regular and
consistent visitation is supported by substantial evidence. Father had no visitation with
K.S. for four months during the dependency period. During other periods when father
was visiting with K.S., he often missed visits, did not take advantage of opportunities to
make up missed visits, ended visits early, or failed to interact with K.S. during the visits.
              Even if we were to accept father’s contention that substantial evidence did
not support the juvenile court’s finding as to visitation, we would conclude that it did
support the court’s finding that K.S. would not benefit from maintaining the parent-child
relationship with father.
              In In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576, the court stated:
“In the context of the dependency scheme prescribed by the Legislature, we interpret the
‘benefit from continuing the [parent/child] relationship’ exception to mean the

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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 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. [¶] Interaction between natural parent and child will always confer some
incidental benefit to the child. The significant attachment from child to parent results
from the adult’s attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation.] The exception applies only where the
court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent. [¶] At the time the court makes its
determination, the parent and child have been in the dependency process for 12 months or
longer, during which time the nature and extent of the particular relationship should be
apparent. Social workers, interim caretakers and health professionals will have observed
the parent and child interact and provided information to the court. 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.”
              We recognize, as did the juvenile court, that father and K.S. love each
other, had a bond, and K.S. enjoyed her visits with father. However, under well-settled
law, these facts are not enough to establish the application of the parent-child relationship
exception to adoption. (In re C.F. (2011) 193 Cal.App.4th 549, 558-559 [a parent “may

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[not] establish the parent-child beneficial relationship exception by merely showing the
child derives some measure of benefit from maintaining parental contact”].) In In re
Helen W. (2007) 150 Cal.App.4th 71, 81, a panel of this court held that the parent-child
relationship exception did not apply, although the children referred to the mother as
“‘Mom,’” the mother and the children loved each other, and the mother provided for the
children’s needs during visits. Similarly, in In re Cliffton B., supra, 81 Cal.App.4th at
page 424, the father had “maintained a significant relationship with” his child, despite
“the artificial restraints created by monitored weekly visitation.” The juvenile court,
however, was nevertheless required to “engage in a balancing test, juxtaposing the quality
of the relationship and the detriment involved in terminating it against the potential
benefit of an adoptive family.” (Id. at pp. 424-425.)
              Father cannot show that K.S. would suffer any detriment if her relationship
with him were severed. In order to apply the parent-child benefit exception to adoption,
the parent must demonstrate “the benefits to the child of continuing the parental
relationship outweigh the benefits of permanence through adoption.” (In re J.C. (2014)
226 Cal.App.4th 503, 533.) Despite having received 18 months of reunification services,
including counseling, substance abuse treatment, and a parenting class, father completely
ignored K.S. for four full months,2 tested positive for drugs, and failed to advance beyond
six hours of monitored visitation with K.S. per week. K.S.’s foster parents, by contrast,
provided consistent care and support, and it was undisputed that K.S. was thriving in their
care.
              No bonding study was offered in evidence. Father did not provide any
testimony at the section 366.26 hearing.3 K.S. was only five years old at the time of the

              2
                 We recognize that father was mourning the loss of his own father’s death
during this time period. However, no child, especially one with special needs, can wait
around for a parent for four months.
               3
                 The record reflects that father was present before the hearing started, but
left without any notice before the proceedings began that day.

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section 366.26 hearing. She had lived with father for the first three and a half years of
her life, but had lived with the prospective adoptive parents for over a year at the time of
the section 366.26 hearing. K.S. did not have any particularly positive or negative
interactions with father during the dependency period. K.S. did have special needs, due
to her developmental delays, possible autism, and medical problems that father did not
seem to be able to handle well. Father missed K.S.’s individualized education plan
meeting. He failed to check in with the foster parents the day K.S. underwent a
tonsillectomy. And father did not consent to K.S. receiving a flu shot because he was
concerned there was mercury in the vaccine. The evidence supported the juvenile court’s
finding that K.S. would not suffer any detriment if father’s parental rights were
terminated.


                                        DISPOSITION
              The order is affirmed.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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