Filed 3/4/16 In re Mason C. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re Mason C., a Person Coming Under the
Juvenile Court Law.

TUOLUMNE COUNTY DEPARTMENT OF                                                              F071810
SOCIAL SERVICES,
                                                                         (Tuolumne Super. Ct. No. JV7465)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
SARA S. et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
         Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant, Sara S.
         Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and
Appellant, Kevin C.
         Sarah Carrillo, County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Mason C.’s father, appellant Kevin C. (“Father”), contends the trial court erred in
setting adoption as the permanent plan for his son. Specifically, he submits the court
should have selected long-term guardianship without termination of parental rights
because he “maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.”1 (Welf. & Inst., § 366.26, subd. (c)(1)(B)(i).)2
The trial court rejected that contention, and we affirm.
                                          FACTS
       Prior Dependency Case
       In 2012, the Tuolumne County Child Welfare Services (“CWS”) received a report
that Mother and Father had been pulled over with 0.2 grams of methamphetamine and a
pipe. Father was arrested on a drug charge and Mother was arrested for child
endangerment. Mason C., who was 2 weeks old, was detained.
       Both parents were ordered to complete a dependency drug court family
reunification case plan. The family eventually reunified, and the dependency case was
terminated without prejudice.
       April 3, 2014, Petition
       On April 3, 2014, the Tuolumne County Department of Social Services (the
“Department”) filed a section 300 petition concerning Mason C., who was then 2 years
old. The petition and supporting papers alleged the following.
       On March 1, 2013, Mother was arrested on a domestic violence charge for
throwing an axe at Father. Mother was also arrested on June 15, 2013, for driving under
the influence, possessing a controlled substance and endangering a child.




       1   Appellant Sara S. (“Mother”) joins Father’s argument.
       2All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.


                                             2.
       On February 24, 2014, CWS was told that Mother had reported to the sheriff’s
department that Father had hit her, causing a “black eye.” Mason was present when the
incident occurred. Mother and Father later denied that Mason was present during their
domestic violence issues.
       Mother admitted using methamphetamine on March 1, 2014, and her hair follicle
sample submitted on March 27, 2014, tested positive for methamphetamine and
marijuana. Mother “admitted she was not able to provide care to Mason because she ‘has
to get her head right.’ ” Mother said she believed the best place for Mason C. was with
his former foster parent. Mother was concerned Father would take Mason C. and leave
the state.
       On March 10, 2014, Father “admitted that domestic violence had occurred
between him and [Mother] while Mason was present.” On March 27, 2014, Father failed
to submit a hair follicle sample for court-ordered drug screening.
       Detention Orders
       After a contested detention hearing on April 23, 2014, the court found the
allegations of the petitions true and ordered Mason C. detained.
       Jurisdictional Orders
       After a contested jurisdiction hearing, the court found the allegations of the
petition true, except the allegations concerning Father’s drug use. The court found that
Mason came within the provisions of section 300 and placed him in the care of the
Department pending a contested disposition hearing.
       Amended Dependency Petition
       On May 28, 2014, the Department filed an amended dependency petition.
       The amended petition added several allegations, including that on February 9,
2014, Father punched Mother, knocking her to the ground and causing a black eye. On
March 1, 2013, Mother threw a “2-bladed axe” in Father’s direction, causing him injury.
Mother was arrested and charged with inflicting corporal injury on a spouse or

                                             3.
cohabitant. (Pen. Code, § 273.5.) On March 10, 2014, Father admitted that “domestic
violence had occurred between him” and Mother while Mason C. was present. Mother
admitted that Mason C. was taken to the home of a previous foster parent “due to
concerns about the child being present while there was ongoing domestic violence.”
         Dispositional Orders
         On August 1, 2014, the court found that Mason came within section 300,
subdivision (b) and adjudged him a dependent of the court. The court ordered that Mason
remain in the physical custody of the Department. The court denied reunification
services to Mother. The court granted Mother one supervised visit per month, and
granted Father two supervised visits per week.
         The Department’s Request to Have Father Complete Drug Court Program
         On August 11, 2014, the Department filed a request to change a court order.
(§ 388.) The Department prepared a “[§] 388 Report” dated August 12, 2014. The report
recounted that on July 7, 2014, Father came to the CWS office and requested to speak to
supervisor Florencia Baldwin. Father told Baldwin that he had relapsed on July 4, 2014.
He drank beer which “eventually led to him using methamphetamine.” Father then
submitted to drug testing which yielded positive results for amphetamines,
methamphetamines, and ethyl glucuronide (EtG). The Department requested that Father
sign and comply with an updated “Dependency Drug Court Family Reunification case
plan.”
         On August 21, 2014, the court granted the Department’s section 388 request and
ordered father to sign and comply with the Department’s drug court case plan.
         Six-Month Review Orders
         On January 28, 2015, after the six-month review hearing, the court terminated
Father’s reunification services and scheduled a section 366.26 hearing.




                                             4.
       The court held a contested section 366.26 hearing on May 22, 2015.3 Father
argued the court should choose long-term guardianship, rather than adoption, as the plan
for Mason. He argued that the court should refuse to terminate Father’s parental rights
because he “maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
       Father’s Visitation History
       On August 1, 2014, the court granted Father two visits per week for a total of two
hours per week. On August 25, 2014, Father cancelled his visit with Mason because he
“had too much going on.” Father also cancelled his visits on September 29, 2014,
November 10, 2014, December 10, 2014, and December 15, 2015, and left a visit early
on October 15, 2014. According to Mason’s foster parents: “[W]hen visitation is
cancelled, Mason has difficulty managing anxiety and anger, and will often tantrum.”
       During a visit on September 22, 2014, Father “brought Hostess cakes for Mason as
a snack.” Mason became energetic and Father told him, “I will whoop your ass.” Father
said that if Mason bit him, he would “spank his little ass.” A couple minutes later, Father
said that he had never actually spanked Mason.
       During a visit on October 22, 2014, Father did not change Mason’s diaper even
though it had smelled for at least 45 minutes. He finally changed the diaper after a
community health worker told him to, but by that time Mason’s diaper had leaked
through to his jeans. Father did not have a change of clothes for Mason.
       During a visit on December 17, 2014, Father was “frequently on his cell phone
throughout the visit,” and had Mason watch a cartoon for the last 20 minutes of the visit.
       However, the “majority” of the visits Father did attend were “appropriate.”




       3Mother was not present at the hearing. Her counsel moved for a continuance,
which the court denied.


                                            5.
         By the time of the section 366.26 hearing in May 2015, Mason was visiting with
Father once per month for two hours. The visits were supervised at the CWS office.
Father would bring snacks for Mason and “interact appropriately” with him during visits.
The two would watch videos on Father’s phone, play with toy trains, color and read
books.
         Father’s Testimony at the Section 366.26 Hearing
         Father conceded at the section 366.26 hearing that Mason was adoptable.
However, he believed the plan for Mason should be a long-term placement with his
current caretakers without a termination of his parental rights. Father said it was in
Mason’s best interests to stay with his current caretakers “until at least he was five.”
Father proposed a long-term guardianship for “an unspecified amount of time, but
continue to allow me to see my son and be part of his life ….”
         Father testified that he “believed” he had missed two visits with Mason in a year
and one-half. Father testified that Mason, who was approximately three and one-half at
the time of the hearing, had been placed with him for a total of “[a] year, a year and a
half” of his life. Father’s counsel asked him to describe his parental role, to which Father
replied, “I’m his daddy. When he comes in the room, he says, daddy, and he comes and
he hugs me. I mean, what more do I have to tell you?”
         Trial Court’s Ruling
         The court issued a written order on June 2, 2015. After noting that Father
conceded Mason’s adoptability, the court analyzed whether Father had carried his burden
in establishing the beneficial relationship exception to adoption.
         The court observed that a social worker’s report indicated that “there have been
several concerns during visitation and multiple cancellations from [Father].” The court
concluded that “[i]n relation to his life of three years, Mason has spent relatively little
time in unsupervised contact with [Father] ….”



                                              6.
       The court also found that “[o]nce [Father] regained custody of Mason after the
first dependency proceeding, [Father’s] life was characterized by instability and
dysfunction surrounding his relationship with [Mother.]” Father “relapsed shortly after
being offered services a second time.” In contrast, “Mason has remained in a secure
[foster] placement for the majority of his life and is bonded with his current and
prospective caregivers. In short, [Father] has failed to show that the beneficial-
relationship exception applies in this case.”
       The court terminated Mother and Father’s parental rights. Mother and Father now
appeal.
                                      DISCUSSION

I.     THE TRIAL COURT DID NOT ERR IN CONCLUDING FATHER
       FAILED TO PROVE THE BENEFICIAL RELATIONSHIP EXCEPTION
       TO ADOPTION APPLIES
       A. Law
       “At a permanency plan hearing, the court may order one of three alternatives:
adoption, guardianship or long-term foster care. [Citation.] If the dependent child is
adoptable, there is a strong preference for adoption over the alternative permanency
plans. [Citations.] [¶] Once the court determines the child is likely to be adopted, the
burden shifts to the parent to show that termination of parental rights would be
detrimental to the child under one of the exceptions listed in section 366.26, subdivision
(c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to
termination of parental rights when ‘[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship.’ ” (In
re S.B. (2008) 164 Cal.App.4th 289, 296297.)
       Father conceded below that Mason was adoptable. The issue in this appeal is
whether Father carried his burden “to show that termination of parental rights would be
detrimental to the child under” (In re S.B., supra, 164 Cal.App.4th at p. 297) the


                                                7.
beneficial relationship exception. (See § 366.26, subd. (c)(1)(B)(i).) The trial court
concluded that he did not carry his burden and we review that determination for
substantial evidence. (In re S.B., supra, at pp. 297298.)
       “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. [Citation.] 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). [Citation.]” (In re S.B., supra, 164 Cal.App.4th at pp. 297298.)
       B. Analysis
              1.) Substantial Evidence Supports the Trial Court’s Conclusion
       To merely describe Father’s visitation history is to conclude that the trial court’s
decision survives substantial evidence review. Father claims he “established that he had
maintained regular and consistent visitation, to the extent permitted by court orders.”
The record supplies substantial evidence to support a contrary conclusion. Father
cancelled or failed to attend visits on April 10, June 9, June 11, June 23, June 16, June 18,
June 23, 2014, August 25, September 29, November 10, December 10, and December 15,
2014, and on January 12, 2015. These cancellations affected Mason negatively.
According to his foster parents, Mason responded to cancelled visits with tantrums, and
difficulty managing anxiety and anger. One of his foster parents reported that “Mason
gets very angry and then very sad and attached to me when his parents miss visits. He
holds on to me and says don’t leave me.”
       To be sure, there was evidence that Father did not miss all of his visits and that
many of the visits he attended went well. Father testified that Mason was happy to see
him and called him “daddy.” But Father’s burden is higher than that. A parent does not
successfully invoke the beneficial relationship exception by merely producing evidence
that the child has received some benefit from his or her relationship with the parent.

                                             8.
“Interaction between natural parent and child will [often] confer some incidental benefit
to the child.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) But a beneficial
relationship, as that term is used in the case law, means a relationship that “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.” (Ibid., italics added.) Father
simply failed to establish that such a relationship exists between him and Mason.

              2.) The Record Does not Indicate Mason’s Caretakers Were Amenable to a
                  Long-Term Guardianship Arrangement
       Father also argues that evidence established that Mason’s current caretakers were
willing to be legal guardians. However, the testimony he cites does not support this
contention. The following exchange occurred between Father and the court at the section
366.26 hearing:

       “THE COURT: What if these foster parents don’t want to be guardians and
       Mason goes into foster care with somebody you don’t know?

       “[FATHER]: That wouldn’t happen.

       “THE COURT: How do you know?

       “[FATHER]: Because I know these people.

       “[FATHER][4]: They’ve already said that, you know, they want to keep me
       in his life. Even they said that it would be in his best interest.

       “THE COURT: All right. But did they say to you that they wanted to not
       adopt Mason, but have him in guardianship?

       “[FATHER]: No, they didn’t say that to me.”




       4 The reporter’s transcript attributes this statement to the court. However, the
context strongly suggests this was a typographical error and that the statement was in fact
made by Father.


                                             9.
       This exchange does not support Father’s claim that there was substantial evidence
Mason’s caretakers were willing to become Mason’s guardians (rather than his adoptive
parents).5

II.    OUR REJECTION OF FATHER’S ARGUMENT ON APPEAL
       NECESSITATES REJECTION OF MOTHER’S APPEAL ON THE
       MERITS
       Mother does not advance any independent arguments on appeal, but instead joins
in Father’s brief. For the reasons set forth above, we have rejected those arguments.
                                     DISPOSITION
       The order is affirmed.


                                                                _____________________
                                                                POOCHIGIAN, J.
WE CONCUR:


______________________
LEVY, Acting P.J.


______________________
KANE, J.




       5 In his reply brief, Father maintains his testimony established that the caretakers
“were also willing to do another permanent plan such as guardianship.” Again, we
disagree. But more fundamentally, the court was obligated to terminate parental rights
unless an exception applied. (§ 366.26, subd. (c)(1) [“the court shall terminate parental
rights unless either of the following applies …” (italics added)].) Here the court
determined that Father failed to establish the beneficial relationship exception, and we
affirm that conclusion. As a result, whether or not the caretakers would have accepted a
guardianship is not dispositive.


                                            10.
