Filed 7/8/16 In re E.N. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re E.N., a Person Coming Under the                                H042890
Juvenile Court Law.                                                 (Monterey County
                                                                     Super. Ct. No. J47501)

MONTEREY COUNTY DEPARTMENT
OF SOCIAL & EMPLOYMENT
SERVICES,

         Plaintiff and Respondent,

             v.

M.A.,

         Defendant and Appellant.



         M.A. is the father of E.N., and appeals the juvenile court’s order terminating his
parental rights pursuant to Welfare and Institutions Code section 366.26.1 On appeal,
father asserts that the court erred when it found that the beneficial parent/child
relationship exception to adoption pursuant to section 366.26, subdivision (c)(1)(A) did
not apply in this case.




         1
             All further statutory references are to the Welfare and Institutions Code.
                         STATEMENT OF THE FACTS AND CASE
       On November 1, 2013, Monterey County Department of Social and Employment
Services (Department) filed a juvenile petition regarding E.N., a newborn baby girl.
Following her birth, E.N. had a positive toxicology screen for opiates and
benzodiazepines. The petition alleged failure to protect, and that Father had threatened to
kill the mother at the hospital, and was an “extremely hostile, aggressive, and violent
man” with an extensive history of domestic violence. The petition also alleged that
Mother was addicted to pain-killers, suffered from bipolar disorder and had overdosed on
prescription medications on two previous occasions.
       E.N. was detained on November 4, 2013 and the court ordered that both parents
undergo psychological evaluations. Dr. Elizabeth Lee interviewed Father on
November 18, 2013. According to Veterans Administration records, Father had
developed post-traumatic stress disorder (PTSD) from being in combat during a four-
month tour in Afganistan as part of a four-year stint in the army. He told Dr. Lee that he
had intrusive memories, difficulty sleeping, and nightmares. He said he had received
intermittent services from the Veterans Administration since 2011. Father had been
convicted of felony battery against his first wife in 2004 and spent two and a half months
in jail. He attended a 52-week domestic violence class and was on probation for three
years. Father was arrested in 2013 for spousal battery, and the charges were dropped by
the district attorney’s office. He denied any recent incidents of domestic violence, but
acknowledged that he had a problem with anger management and self-control. Father
was tearful when he discussed the fact that he could not see his daughter. He felt that the
stress of worrying about his wife’s substance abuse while pregnant helped to trigger his
PTSD symptoms.
       At the jurisdictional hearing on December 18, 2013, the parents submitted



                                             2
on the Department’s report, which relied on Dr. Lee’s psychological evaluations. The
court found the allegations in the petition true, ordered dependency for E.N., and ordered
removal from the home. Family reunification services were ordered for both parents,
with separate twice-weekly supervised visits for one hour at a time. Father’s service plan
included individual and couples counseling, participation in a domestic violence support
group, and refresher courses in domestic violence prevention and stress management
techniques.
       In March, 2014, the Department recommended an amended case plan that added
domestic violence prevention classes, mental health services, and participation in the
Parent Education Group (PEG) for each parent.
       In May, 2014, the social worker requested a temporary restraining order (TRO)
against Father based on comments made to her by the mother. In her request, the social
worker said that Father and mother argued at a visit, and when she told them to stop and
focus on the visit, Father became angry and “made loud breathing sounds during the
balance of the visit.” The mother later told the social worker that Father had been
researching the social worker on the internet and said he wanted to bomb the child
protective service (CPS) building and get a sniper to start picking people off. The social
worker concluded that “[t]he father is becoming obsessive about the Department and the
social worker and spends much of his time blaming the Department and trying to find a
way to ruin the social worker’s career.” She called police who made a report and said she
was afraid for her safety. Father denied the allegations in the application for the TRO.
       The court issued the TRO on May 6, 2014 with a peaceful contact provision so
that Father could continue visitation. Father was subsequently arrested on May 13, 2014
for violating the restraining order.
       In the status review report filed on May 29, 2014, the social worker recommended
termination of services for the mother and Father.

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       The social worker stated that Father’s participation in his case plan was
insufficient and he had not made sufficient progress to recommend more services. She
also stated in the report that E.N. had been placed in a concurrent home where her life
was stable.
       The contested six-month review hearing was held on August 26, 2014. Father
agreed to submit on the social worker’s reports as long as the visitation order of
supervised, once weekly two-hour visits with E.N. remained in place. The court adopted
the social worker’s recommendations, and reunification services were terminated for
Father, with continuing weekly supervised visitation.
       On November 25, 2014, Father requested resumption of reunification services
pursuant to section 388 based on his continued progress on the case plan. Consideration
of the section 388 petition was set for the same time as the 12-month review hearing.
The hearing was scheduled for February 9, 2015.
       The 12-month review report stated that Father continued to participate in
supervised visits with E.N. once a week for two hours and that his visits were consistent
and appropriate. The social worker stated that she believed it was in E.N.’s best interest
to remain connected to Father, and that it was clear that Father loved his daughter. Father
had requested that visits with E.N. continue on at least a monthly basis. The report also
noted that Father had a pending criminal case associated with the alleged restraining
order violation that had occurred six months prior.
       Regarding Father’s section 388 petition, the court found that Father had not
presented sufficient evidence of a prima face case that his circumstances had changed
such that reunification services should be reinstated. The court denied the petition.
       The matter was set for a selection and implementation hearing on June 9, 2015.
On April 30, 2015, Father filed a letter with the court. In it, Father stated that he had
done everything that he had been required to for his case plan. Father also stated that the

                                              4
social worker had abused her position and lied to the court. He stated that none of the
facts of the case was true, other than that he lost his temper upon finding out that E.N.
was going to be born a drug addict because of the mother’s use of drugs while she was
pregnant. He claimed that the social worker had made unwanted sexual advances toward
him, and that after he declined her advances, she turned her rejection into a mission to
deny him his daughter. Father stated he would continue to fight for what was best for
E.N. no matter what the outcome was of the hearing. Father asked that the court adopt
guardianship as the permanent plan for E.N.
       The Department prepared a section 366.26 report recommending that the court
continue the dependency of E.N., declare that adoption was the appropriate permanent
plan for her, and terminate the parental rights of both parents.
       The report noted that E.N. was doing well in her concurrent home, and that the
foster parents were very attached to her and very committed to adopting her. In a letter
attached to the report, the foster parents expressed their love for E.N., and their openness
to her continued visitation with the mother and Father if the visits continued to be in
E.N.’s best interest.
       At the contested section 366.26 hearing on August 31, 2015, the social worker
testified that Father had supervised visitation with E.N. one hour per month. The social
worker also testified that E.N. had been in the care of her foster parents since her birth,
having been placed with them immediately upon discharge from the hospital. She
testified E.N. is now almost two years old. She also stated that the foster parents were
concerned about E.N.’s well-being following visits with Father, because she was much
clingier and more anxious when she would visit with him. The foster parents told the
social worker that it usually took E.N. a day to get back to normal following visits with
Father.



                                              5
       Father testified that he was never given custody of E.N. and that his only contact
with her was through supervised visitation. He testified his first visits were an hour each
month, but gradually increased to once a week for two hours supervised. He testified he
had never missed a single visit with E.N. or been late for a visit. Father stated that he had
applied techniques learned in his classes. He testified that he brought toys and books to
the visits and that he felt extremely bonded to E.N.
       On cross-examination, Father testified that the reports of him being hostile and
aggressive at the hospital were not true. When asked if he was aware that there were
felony charges pending against him of making criminal threats, assault likely to produce
great bodily harm and infliction of injury on a spouse stemming from that incident, his
attorney objected that he had a Fifth Amendment right not to incriminate himself.
       After hearing arguments, the court found that the visits between Father and E.N.
had gone well, but the visits had not demonstrated a significant bond between them to
prevent an adoption in this matter. The court found that Father had not presented enough
evidence to show that he occupied a parental role in E.N.’s life, and that fun, caring visits
between him and E.N. was not enough. The court concluded that there was no
compelling reason for determining that termination of Father’s parental rights would be
detrimental to E.N. The court found that Father had not established that the beneficial
parent/child relationship exception to adoption applied in this case. The court selected
adoption as the permanent plan and terminated both parents’ parental rights.
       Father filed a timely notice of appeal in this court.
                                         DISCUSSION
       Once a dependency case has proceeded to the point of a section 366.26 hearing, a
juvenile court has limited choices. If the court determines by clear and convincing
evidence that it is likely that the child will be adopted, the court is required to terminate
parental rights and order the dependent child placed for adoption unless a statutory

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exception applies. (§ 366.26, subd. (c)(1).) “The Legislature has thus determined that,
where possible, adoption is the first choice.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)
“The specified statutory circumstances—actually, exceptions to the general rule that the
court must choose adoption where possible—‘must be considered in view of the
legislative preference for adoption when reunification efforts have failed.’ [Citation.] . . .
The statutory exceptions merely permit the court, in exceptional circumstances [citation],
to choose an option other than the norm, which remains adoption.” (Ibid.)
       Section 366.26, subdivision (c)(1)(B), contains a number of exceptions to
adoption, including the beneficial parent-child relationship exception (§ 366.26,
subd. (c)(1)(B)(i)). That exception applies where “[t]he court 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.” (Ibid.) A parent bears the burden of proving the
beneficial parent-child relationship exception applies. (In re Mary G. (2007) 151
Cal.App.4th 184, 207.) The parent-child relationship must promote “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 re Autumn H. (1994) 27 Cal.App.4th
567, 575.) “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.” (Ibid.) “[T]he exception does not permit a parent
who has failed to reunify with an adoptable child to derail an adoption merely by
showing the child would derive some benefit from continuing a relationship maintained



                                              7
during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1348.)
       On appeal from a court order terminating parental rights following the court’s
determination that the beneficial parent-child relationship exception does not apply, we
review the juvenile court’s findings of fact under a substantial evidence standard and its
discretionary decision regarding the existence of a compelling reason under an abuse of
discretion standard. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
“Since the proponent of the exception bears the burden of producing evidence of the
existence of a beneficial parental . . . relationship, which is a factual issue, the substantial
evidence standard of review is the appropriate one to apply to this component of the
juvenile court’s determination.” (Id. at p. 1314.)
       In contrast, a juvenile court’s determination whether there is a compelling reason
not to terminate parental rights based on a beneficial parent-child relationship is “a
‘quintessentially’ discretionary decision, which calls for the juvenile court to determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and to weigh that against the benefit to the child of
adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) Because this component of
the juvenile court’s decision is discretionary, the abuse of discretion standard of review
applies.” (In re Bailey J., supra, 189 Cal.App.4th at p. 1315; see In re C.B. (2010) 190
Cal.App.4th 102, 123.) “ ‘ [“]The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason. When two or more inferences can reasonably
be deduced from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.” ’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.) “When applying the deferential abuse of discretion standard, ‘the trial court’s
findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed



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de novo, and its application of the law to the facts is reversible only if arbitrary and
capricious.’ [Citations]” (In re C.B., supra, 190 Cal.App.4th 102, 123.)
       Here, Father fails to show that the court abused its discretion in determining that
his relationship with E.N. did not promote “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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) In evaluating whether the
beneficial parent-child relationship exception applied, the court based its discretion on the
fact that E.N. had been with her foster parents since she was released from the hospital
following her birth. The court noted that although visits between Father and E.N. had
gone well, Father had not established that he and E.N. had developed a close and loving
relationship that would outweigh the benefit of adoption. The court also found that
Father did not occupy a parental role for E.N. The court ultimately made clear that it
could not find that the father-child relationship was so good and beneficial to E.N. that it
would be in E.N.’s best interest to have that legal relationship continue rather than
proceed with adoption.
       Father fails to show that the juvenile court acted arbitrarily and beyond the bounds
of reason in finding that the beneficial parent/child relationship exception to adoption was
inapplicable.
                                        DISPOSITION
       The order is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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