Filed 5/2/14 In re M.R. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 M.R., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G049171
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP021514)
         v.
                                                                       OPINION
R.R. et al.,

     Defendants and Appellants.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Dennis J. Keough, Judge. Affirmed.
                   Leslie A. Barry, under appointment by the Court of Appeal, for Defendant
and Appellant R.R.
                Jesse McGowan, under appointment by the Court of Appeal, for Defendant
and Appellant Timothy R.
                Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel, for Plaintiff and Respondent.


                                   *           *          *


                Approximately one year ago, we denied father Timothy R.’s petition for
writ of mandate, which challenged the juvenile court’s decision to terminate reunification
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services and set a hearing under Welfare and Institutions Code section 366.26 in the
dependency case of his son, M.R. (Timothy R. v. Superior Court (May 22, 2013,
G048078) [nonpub. opn.] (Timothy).) At the subsequent section 366.26 hearing, the
court established adoption as the permanent plan for son and terminated the parental
rights of father and mother, R.R. Father and mother appeal the court’s order, contending
that the benefit exception (§ 366.26, subd. (c)(1)(B)(i) applies to father’s relationship
         2
with son. We affirm, as the court did not abuse its discretion in finding this exception
inapplicable.




1
                All statutory references are to the Welfare and Institutions Code.
2
              Mother joins in father’s briefs, noting that if the court erred in terminating
father’s parental rights, it also necessarily erred by terminating mother’s parental rights.
(In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.) Mother does not argue that her
relationship with son independently qualifies for the benefit exception. We therefore
focus on father’s relationship with son and refer to father’s arguments and contentions in
the remainder of this opinion.

                                               2
                                            FACTS


              Son (now five years old, four at the time of the § 366.26 hearing) “is a very
intelligent little boy with many likable characteristics. [He] is a good natured little boy
with a big heart. [He] enjoys spending time with his family and now his nephew. [He]
loves to be outside. [He] loves one-on-one attention from adults and [he] is very
outgoing socially for his age. It has been apparent that [son] is able to acclimate very
well to different situations as seen over the past few years of his life. [He] has a special
personality and . . . is active and energetic.”
              “Since April 2012, son has been placed with his adult sister. Son adapted
well to his placement.” (Timothy, supra, G048078.) Son’s adult sister and her fiancé are
now prospective adoptive parents, upon whom the Orange County Social Services
Agency (SSA) conducted a preliminary assessment. “The prospective adoptive parents
and the prospective adoptive mother’s young son are truly attached to the child. They
desire to adopt the child because he cannot be cared for by his birth parents. They love
him and desire to provide him with a safe, secure and nurturing family environment.”
“The prospective adoptive mother has had a relationship with the child since his birth.
She truly loves and cares for the child and wants to provide him with a childhood that she
did not have. The prospective adoptive father has had a relationship with the child for a
year. He has quickly become a loving, affectionate and positive father figure to the
prospective adoptive child. The prospective adoptive family’s son, who is five years of
age, and the prospective adoptive child have developed a good sibling relationship with
each other.” Son “appears extremely bonded to the prospective adoptive parents. He
seeks out both adoptive parents for attention, assistance and affection.”
              As we explained in our prior opinion, substantial evidence supported the
court’s decision not to return son to the custody of father at the 18-month review hearing
and to terminate father’s reunification services. “Father is a recovering heroin addict

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with anger management problems and a criminal history. Father failed to comply with
[SSA’s] request that he limit pain medication to non-narcotic drugs. Instead, he lied to
the methadone clinic to obtain his pain medication of choice and discarded pain
management specialists until he found one willing to prescribe his preferred pain
medication (methadone). Father failed to demonstrate through therapy or his actions
during the dependency case that he would keep his anger under control or that he would
cooperate with SSA to ensure the safety of son were son to be returned to father.”
(Timothy, supra, G048078.) The court denied father’s subsequent section 388 petition to
return son to his care based on changed circumstances. Father does not appeal this
ruling.
              We focus the remainder of our statement of facts to evidence concerning
the relationship between father and son. The relevant evidence consists both of
information presented in SSA reports and testimony provided at the section 366.26
hearing.


SSA Reports
              In a June 27, 2013 report, SSA recommended that the court terminate
parental rights and establish a permanent plan of adoption The report noted, “The father
has had supervised visits throughout the duration of the case. The father has not had any
unsupervised time. The father throughout the case has maintained regular visits with his
son. The father has had some missed visits due to incarceration or illness.” Father
actively played with and cared for son at the visits. An earlier report noted that father’s
visitation schedule consisted of two, 3-hour visits per week.
              In a September 10 addendum report, SSA reiterated its recommendation
from the prior report, i.e., that the court terminate parental rights and establish a
permanent plan of adoption. “Since the last hearing the father has been attending his
visitation with his son. The Orange County Prevention Center has continued to relay that

                                               4
the visits with the father and the child go well. The father brings food and snacks to the
visits. They play together and watch movies. The father assists the child to the
bathroom.” At an August 8, 2013 visit, father “was on time and greeted the child with
hugs.” Father and son played together, ate together, watched a movie together, and read
together.
              As father and son were leaving the building after the August 8 visit, an
incident occurred at the elevator. A security guard pulled son into the elevator as the
doors started to close. “Immediately the father screamed ‘ASSHOLE’ as the elevator
doors were closing. The father started screaming at the staff that ‘[the guard] had no
right to touch my son’ . . . . The father was aggressive with the staff and told them that
they better tell the security guard this or he will. The staff was able to calm the father
down and then he apologized to the staff and told them that he let his emotions get the
best of him. He then left the Center.”


Father’s Testimony
              “This whole thing has been very, very hard on me. . . . [M]e and my son
were together every single day 24/7 for two years, the first two years of his life. And we
were extremely bonded. And I love him very much. And this whole thing has been very,
very hard on me. [¶] I feel like I’ve lost my heart. And it’s been going on for some time
now, and for the first year and a half or so, I wasn’t handling my depression and anxiety,
frustration, I wasn’t handling them very good. And it was hurting me, and it was hurting
my son.”
              “I am his father. Fatherly love to his son is something that I can’t describe,
something special I have for him. There’s nobody . . . that could love him like I do.” “I
have my life experiences. And I’m a survivor, and I [have] been through a lot in my life.
And I have so many things to teach him, about life, so he has a head start.”



                                              5
              As to the elevator incident, father was upset because the elevator doors
almost closed on son because the guard pulled son back into the elevator. Son was
having trouble saying good bye to father, who was standing outside of the elevator.
Father promptly apologized to the security guard after talking with the visitation monitor.
              In his six hours per week with son, father helped son with his social skills
(“he’s really shy around people he doesn’t know”), instructed him on following rules
(e.g., stay out of the locked cabinet in the visitation room even though you know how to
unlock it), and disciplined son (e.g., put him in a time out because “he was just acting up
and wasn’t listening”).


Testimony of Monitors
              A monitor for approximately 30 of father’s visits with son testified to “a
general overview” of father’s visits: “[T]he father for the most part always arrives on
time, so the father’s already in the visitation area, and . . . when [son] comes, father
usually just waits in the hallway, and [son] just comes running, oftentimes shouts
‘Daddy.’ Father kneels down, child runs up to him, hugs him, hug each other, kiss each
other, and they go back into the visitation room and pretty much the father usually brings
him a new movie. He usually tells him, oh, I bought him a new Disney movie. I bought
him some Legos. [Son] likes to play a lot with race car track toys. They build Legos
together. They typically watch movies. He brings him snacks, food, drinks. And at the
end of the visit, they usually just hug and they kiss each other, and they usually say, ‘I
love you’ when the visit ends.” “Periodically sometimes the child will say, ‘I love you,
Daddy,’ and just hug him.” Son is excited when he plays with father. In the two months
preceding the hearing, father and son have had longer parting moments, and son would
sometimes say, “I don’t want to go, I want to stay.” During two or three visits, father
attempted to teach son about counting and shapes, but for the most part they played
together. Father is attentive to son’s need for food or to use the restroom. Son responds

                                              6
to father’s instructions (e.g., it’s time to eat). Father has disciplined son by telling him he
cannot misbehave and giving son a time out from playing.
              A second monitor observed, “They are talking, they laugh, they play
together. They are always playing together.” “[A]t the end of the visit, they hug each
other, give the other a kiss. There’s times when it does take a little while for [son] to
leave, just because he wants to stay longer with the dad.” Son is more affectionate with
father than with the monitors. It looks like a “father-child relationship” to the monitor.
“They talk to each other. They are laughing. They are constantly hugging. The father is
kissing the son.” The second monitor did not see anything inappropriate about father’s
reaction to the elevator incident on August 8. At a July 2013 visitation, father was not
happy about being in a room with multiple other families. Father was “a little loud” in
relaying his request for a private room because of the noisy children who were running
around and playing with son’s toys. “He was loud to the point you could say he was
screaming.”


Court’s Ruling
              Although none of the parties contested son’s adoptability, the court
independently found by clear and convincing evidence that son was adoptable. The court
proceeded to determine whether an exception applied. The court first rejected the notion
that mother’s relationship with son precluded the termination of parental rights.
              Turning to father, the court found “the father has regularly and consistently
visited the child and has interacted appropriately with the child . . . .” “[T]he court will
note that father is devoted to the child and unfortunately father has not progressed past
monitored visitation and there has been . . . an associated limitation of the interaction of
the child with father and . . . the court cannot find that the nature of the relationship
measured from [son’s] point of view is such as to make guardianship an appropriate



                                               7
alternative to the adoption.” Accordingly, the court terminated the parents’ parental
rights and established adoption as the permanent plan for son.


                                       DISCUSSION


              “At a hearing under section 366.26, the court must select and implement a
permanent plan for a dependent child. Where there is no probability of reunification with
a parent, adoption is the preferred permanent plan. [Citation.] To implement adoption as
the permanent plan, the juvenile court must find, by clear and convincing evidence, that
the minor is likely to be adopted if parental rights are terminated. [Citation.] Then, in the
absence of evidence that termination of parental rights would be detrimental to the child
under statutorily specified exceptions [citation], the juvenile court ‘shall terminate
parental rights’ [citation].” (In re K.P. (2012) 203 Cal.App.4th 614, 620; see also Cal.
Rules of Court, rule 5.725.)
              Father does not contest the court’s finding that son will likely be adopted.
Instead, he claims the benefit exception applies.
              “Section 366.26 provides an exception to the general legislative preference
for adoption when ‘[t]he court finds a compelling reason for determining that termination
would be detrimental to the child’ [citation] because ‘[t]he parents have maintained
regular visitation and contract with the child and the child would benefit from continuing
the relationship.’ [Citation.] The ‘benefit’ prong of the exception requires the parent to
prove his or her relationship with the child ‘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.’ [Citations.] No matter how loving and frequent the contact, and
notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must
show that they occupy “a parental role” in the child’s life.’ [Citations.] The relationship
that gives rise to this exception to the statutory preference for adoption ‘characteristically

                                              8
aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day
contact is not necessarily required, although it is typical in a parent-child relationship.’
[Citation.] Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary
case that preservation of the parent’s rights will prevail over the Legislature’s preference
for adoptive placement.’” (In re K.P., supra, 203 Cal.App.4th at p. 621.)
              “The factors to be considered when looking for whether a relationship is
important and beneficial are: (1) the age of the child, (2) the portion of the child’s life
spent in the parent’s custody, (3) the positive or negative effect of interaction between the
parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97
Cal.App.4th 454, 467, fn. omitted.) “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.” (Id. at p. 466.) But “‘[i]f 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 Cliffton B. (2000) 81 Cal.App.4th 415, 424.)
              Both the substantial evidence and abuse of discretion standards of review
“come into play in evaluating a challenge to a juvenile court’s determination as to
whether the parental . . . relationship exception to adoption applies in a particular case.”
(In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) The existence or nonexistence of a
beneficial relationship between father and son is a factual issue, subject to the substantial
evidence standard of review. (Ibid.) On the other hand, whether a parental relationship is
important enough such that the termination of parental rights would be detrimental to the
child is a “‘quintessentially’ discretionary decision,” subject to the abuse of discretion
standard of review. (Id. at p. 1315.)



                                               9
              Here, the court essentially found some benefit to son accruing from his
relationship with father, a conclusion supported by substantial evidence. But the court
also concluded this relationship was not important enough to outweigh son’s interest in
the permanency that would be provided by a plan of adoption. Son was only four years
old at the time of the hearing and had not been in father’s physical custody for more than
two years. Father’s visitation, while consistent and pleasant for son, only occurred twice
per week and was never unmonitored. Son was generally capable of forming close
relationships with others and had in fact formed a meaningful family relationship with his
prospective adoptive parents during the dependency. There is no evidence son would be
greatly harmed by severing his parental relationship with father; evidence that son had
some difficulty parting from father after their visits does not sufficiently demonstrate son
needed father as a parent. Son stood to gain the stability of adoption at a relatively young
age, as opposed to an indefinite and lengthy foster care status. The positive interactions
father and son shared during monitored visitation, as well as father’s sincere and
passionate love for his son, certainly made this a difficult decision for the court. But we
find no grounds for concluding the court abused its discretion by making the decision it
did. (See In re K.P., supra, 203 Cal.App.4th at p. 622 [upholding determination that
“bond or relationship . . . was qualitatively insufficient to constitute a compelling reason”
to maintain parental rights].)
              Father relies on several cases in which appellate courts reversed orders
forgoing application of the benefit exception. (See In re Scott B. (2010) 188
Cal.App.4th 452; In re S.B. (2008) 164 Cal.App.4th 289; In re Amber M. (2002) 103
Cal.App.4th 681.) Amber M. hinged on strong evidence (including expert psychological
opinion based on a bonding study) that the three dependent children would be harmed by
ending their relationship with mother, as well as the absence of any pertinent evidence
supporting the social worker’s contrary opinion. (In re Amber M., at pp. 689-690.)
Likewise, the evidence relied on by the S.B. court to reverse the juvenile court was

                                             10
bolstered by the results of a bonding study performed by an expert witness (In re S.B., at
p. 295), the conclusion of which was that “because the bond between [father and
daughter] was fairly strong, there was a potential for harm to [daughter] were she to lose
the parent-child relationship.” (Id. at p. 296.) The child in Scott B. was 11 years old and
had spent nearly all his life living with his mother before the dependency. (In re Scott
B., at p. 471.) It was clear the child’s “emotional makeup will not enable him to endure
interruption of his long-standing frequent visits with” his mother. (Ibid.)
              None of these cases compels a reversal here. Each dependency case “must
be viewed in light of its particular facts.” (In re Jason J. (2009) 175 Cal.App.4th 922,
937.) No case “stand[s] 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.” (Ibid.) Father can point to some similarities between the instant case and past
cases resulting in reversals. But unlike cases in which reversal occurred, father cannot
identify specific evidence in the record demonstrating the harm to son that could result
from the court’s order. Instead, father can only return to his consistent (but limited)
visitation, son’s expressed fondness for father at those visitations, and more general
sentimental considerations (e.g., the natural relationship between a father and a son,
                                                                        3
father’s sincere love for son). This record does not compel reversal.




3
              We decline father’s invitation to establish a bright-line rule in this area of
law (or a presumption that the benefit exception applies if certain factual predicates are
proven by the parent).

                                              11
                                DISPOSITION


          The postjudgment order is affirmed.




                                           IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




                                      12
