Opinion
A151195 A151144
03-01-2018
In re JOSEPH. H., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Plaintiffs and Appellants, v. M.H., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ1402329401)
The Alameda County Social Services Agency (the Agency) and minor Joseph H., through counsel, appeal from juvenile court orders declining to terminate parental rights and selecting legal guardianship as Joseph's permanent plan at a hearing pursuant to Welfare and Institutions Code section 366.26. Appellants contend the court's finding that the benefits of continuing Joseph's relationship with his father (Father) outweighed the benefits of adoption was unsupported by the evidence and an abuse of discretion. The Agency also asserts the finding that Father maintained regular visitation is unsupported by substantial evidence. The court's orders have evidentiary support in the record and are within its discretionary authority, so we affirm.
Further statutory references are to the Welfare and Institutions Code.
BACKGROUND
The history of this case from its inception in July 2014 through the juvenile court's May 3, 2016 order terminating Father's reunification services and setting a permanency planning hearing is discussed in our previous opinion in this matter, which we incorporate by reference. (M.H. v. Superior Court, Nov.15, 2016, A148568 [nonpub. opn.].) Father filed a writ petition in this court challenging the termination of his reunification services. We stayed the permanency planning hearing and, after oral argument was waived, on November 15, 2016, denied Father's writ petition and dissolved the stay.
Mother's reunification services were terminated at a contested six-month review hearing in June 2015. Mother filed a brief joining in Father's arguments but raises no independent issues in this appeal.
The permanency planning hearing was set for August 26, 2016. The Agency's report recommended termination of parental rights and a permanent plan of adoption.
The report summarized Father's visitation with Joseph. Joseph was removed from his mother in July 2014, when he was 13 months old. Although Father was granted reunification services in April 2015, his residential drug treatment program did not allow Father to participate in visitation until his "blackout period" ended in June. Father and Joseph had their first visit in July 2015, followed by weekly therapeutic visits with dyadic therapist Jackie Schalit. Father was consistently on time for visits and creatively engaged Joseph in play. Joseph appeared to enjoy their visits.
On September 15, 2015, the court increased Father's visits to two hours twice a week. Schalit continued to provide one hour of therapeutic visitation each week and the child welfare worker supervised the remaining three hours. Father missed visits on September 24, 2015, October 1, 2015, and January 12, 2016, due to a "personal matter" and two court hearings, but he otherwise attended visits, arrived on time and brought appropriate toys for Joseph to play with.
In November 2015 Father's visits were transitioned from supervised to "observed," and still included one hour of therapy with Schalit each week. The child welfare worker wrote that Father "engaged Joseph in a variety of activities including playing basketball, taking a wagon to the Estuary to look for fish, and playing at the train table. The father was able to set limits with Joseph, for example giving him a warning to stop a behavior, and then taking away a toy if he did not stop misusing it. Joseph laughed and smiled during visits."
On February 4, 2016, Father and Joseph transitioned to unsupervised visits. These visits initially took place at the Agency's offices and a nearby park, but in mid-March Joseph started visiting at Father's residence. Father and Joseph continued to work with Schalit for one hour a week.
Father attended the majority of his scheduled visits from February through the beginning of July 2016, but he cancelled two visits in early March because he was sick, a third on March 22 to attend a parent caregiver advisory group retreat, and a fourth on April 12 for a parenting orientation. Schalit told the child welfare worker that sessions with Father and Joseph always went well and that she had observed Joseph turning to Father for help and support. She described Father as thoughtful and patient with his son. "When Joseph has tantrums or behavioral concerns, the father will set limits with Joseph, allow him his space or help Joseph name his feelings and re-direct him. [Schalit's] role during the visit is to provide support, narrate the play, and help the father understand Joseph's triggers and his trauma experience." In Schalit's assessment, " 'it will be a huge loss for Joseph if he loses his connection with his father.'" Even so, Father missed a number of visits between mid-July and mid-September due to conflicts with job interviews, job training and problems coordinating logistics with the Agency and de facto parents.
Joseph's de facto mother consistently reported that Joseph exhibited challenging behaviors after visits with Father, including more frequent tantrums, disrupted sleep and aggressive behavior at school. Joseph's preschool teacher reported that he sometimes, but not always, had more difficulty after weekends and visits with Father. On July 12 the de facto mother reported that Joseph had exhibited even more unusual behavior after his last two visits with Father, referring to himself as "Ben" and not making eye contact or responding to his name. Joseph was referred for a mental health evaluation.
Joseph has a diagnosis of posttraumatic stress disorder.
Addressing the likelihood of adoption, the case worker reported that Joseph was physically healthy and receiving appropriate services for his speech delays, which had improved a great deal. Joseph's de facto parents wanted to adopt him. They had known his mother for many years and had known Joseph since his birth. The de facto parents told Joseph's case workers they understood the importance of his birth family and did not intend to cut Father out of his life. Rather, they were interested in exploring what post-adoptive contact would look like and how it could be arranged in Joseph's best interests.
The Agency's report noted that Father had no contact with Joseph during the first year of the dependency. Before Joseph was removed from Mother his contact with Father "had been complicated by the father's criminal and drug history. While the father has worked hard over the past year to repair his relationship with Joseph, he is still not able to provide the safety and security that Joseph needs to thrive. Joseph enjoys his visits with his father, but they are just that, visits and not time spent with a primary parental figure. Joseph goes back to his caregivers, who are able to provide him with the ongoing care he needs. It is therefore respectfully recommended that the Court terminate parental rights and order a permanent plan of Adoption for Joseph."
The permanency planning hearing was held August 26, 2016. The Agency's report was admitted into evidence, the court ordered a bonding study and the case was continued pending action on the study and Father's writ petition. The Agency's addendum report for the next hearing, held September 19, continued to recommend adoption. Father had finished the training for his new job the week of August 8. On August 15 he requested weekend visitation because he was now working day shifts and could not visit Joseph at the previously scheduled times. A visit was arranged for August 19, but Father left early because he had to "be 'somewhere.' " After a fair amount of negotiation with the de facto parents, on September 9 a new agreement was reached for two-hour visits on Tuesday afternoons and Saturday mornings. However, on September 12 Father told the case worker that a change in his work schedule prevented him from visiting on Tuesdays. At the September 19 hearing, for reasons not apparent from the record before us, the court declined to go forward with the bonding study.
On December 14 the Agency submitted a second addendum report. It stated: "[F]ather obtained a new job in July 2016. Due to training and his new work schedule the father was not able to visit with Joseph for several months. Starting on 9/22/2016, the father resumed regular twice-weekly visits with Joseph, from 1:00 to 3:00 p.m. on Tuesdays and Thursdays. The father missed a visit on 10/18/2016 due to the court hearing on that day. The father cancelled the visits on 10/27 and 11/22/2016, due to being ill. Child Welfare Worker Michael Ludden cancelled the visit for 11/24/2016, due to the Thanksgiving holiday. The father has attended all of the remaining visits since September 2016."
The next hearing was held on February 17, 2017. The Agency's report for the hearing summarized Joseph's behavioral issues. Joseph was still acting out at school and engaging in troubling behaviors after visits with Father. He was referred to Children's Hospital Oakland's Early Intervention Services, where he was assessed by psychologist Barbara Ivins. Dr. Ivins concluded that Joseph did not appear to meet the criteria for childhood dissociative disorder, a concern of the de facto parents. Instead, his symptoms "can perhaps better be explained by his early trauma, his communication delays, and the continued emotional strain that he is placed under after 26 months in foster care without a permanent plan." (Italics omitted.)
Therapist Cathy Brady worked with Joseph and the de facto parents. Brady believed Joseph's behavior was normal for his age and development, and that Joseph acted out physically because his speech delays made it difficult to communicate his needs, frustrations and confusion. The child welfare worker made a referral for Joseph to receive behavioral therapy services.
This court denied Father's writ petition challenging the order setting the permanency planning hearing on November 15, 2016. (M.H. v. Superior Court, Nov. 15, 2016, A148568 [nonpub. opn.].) On December 8, 2016, Father contacted the child welfare worker by text message. He wrote: "Hey Michael I want to start scaling back my visits to once a week on Tuesdays. I was informed by my lawyer that my appeal was denied as you probably already know. This is hard for me to deal with, it's very emotionally painful. I have done all of [the] work on myself to get me in a healthy state of living so I could be a good parent to be able to nurture him as well as my other children but I guess my son is to be raised by those foster parents. I was also informed by Kathy that the foster parents are looking towards me not having any future contact with my son. I am at a loss for words to describe how much I hurt knowing I will not have any contact with my son for 15 years and that's only if the foster parents are honest and tell him who his biological father is and assuming he wants to search for me. I need to be able to come to terms and prepare for this and this is the best way for me to do so. We have court next week and they are probably gonna do this anyways. So I believe we might as well start now. He will be fine. He is young enough, he will forget about me. It's me who will and is having a problem with this so this is what I need to do from this day forward. No more Thursday visits, Tuesdays only. Today's visit is cancelled." The child welfare worker wrote back to Father assuring him he could still visit twice a week. Father did not respond, so the visits were decreased to two hours every Tuesday.
The child welfare worker had spoken with Schalit again. Schalit reported that visits continued to go well. "Ms. Schalit indicated that [Father] and Joseph engage in reciprocal and pretend play with blocks, small doll house toys and bubbles. She described the play as filled with lots of laughs and mutual enjoyment." In a written treatment progress summary submitted to the court in December 2016, Schalit added that Father "created a routine for the visits that Joseph seems to enjoy. . . . [F]ather has been engaged in treatment and actively participates in sessions. He makes use of interventions offered and is thoughtful about Joseph's emotional life and the impact that his early trauma has had on his development."
The de facto parents were committed to caring for Joseph permanently and wanted to adopt him. They were open to sending Father letters and pictures if they adopted Joseph, but they had not decided whether they would allow visitation.
The permanency planning hearing was held on March 6, 2017. The Agency rested its case after offering its reports into evidence. Joseph and Mother submitted on the reports.
Father testified that he was supportive of Mother "as much as I could be" during her pregnancy, considering that she was incarcerated for most of it. When Joseph was an infant Mother initially lived with him in an inpatient drug treatment program. Father visited weekly, as often as the program allowed, and would feed, bathe, change and nurture his son. He signed a declaration of paternity and his name is on Joseph's birth certificate.
Mother and Father lived together on and off after Mother was released from the treatment program, but she "just kind of took off" before Joseph was removed from her care on July 23, 2014. Father was not with her when Joseph was removed. His relationship with mother was "complicated." At that time he was living in a tent behind Lowes in Union City, using drugs and "in pretty bad shape. I was in no position to take care of a child."
Within six months after Joseph's removal, Father obtained reunification services. He started visiting Joseph in July 2015, after he completed the blackout period at his drug treatment program. Since then he had visited Joseph continuously except for during job interviews and work training, legal matters, or illness. In July or August of 2016 he obtained full-time employment as a saw operator.
Schalit participated in Father's visits for over a year as visitation progressed from one hour once each week to two hours twice weekly, from supervised to unsupervised, and from taking place at the Agency to visits at Father's home. Joseph was initially reluctant to interact with Father, but after about their second visit he warmed up. They would play, run around in the backyard, blow bubbles, read books and watch Disney movies. Visits ended smoothly, with "just a kiss, hug and good-bye and I tell him I'll see him next time and he says okay." Joseph called Father "dad."
Father acknowledged that he asked child welfare worker Michael Ludden to decrease his visits from twice to once per week, as Ludden explained in the Agency's February 17 report. He testified that after his writ petition was denied he "had been asking people different questions about what's going on and they say it's pretty much highly unlikely, that I'm not going to get him back. Pretty much it's done, it's over and that's it. So what I want to do—he's still young enough to where when this happens he can go live a good life and not really worry about me. [¶] Because I try to think back to my earliest childhood memory, and I was probably four or five. So he's going to be three. A lot of stuff he's going to forget and I'm going to be the one having a hard time letting go. So I pretty much did it for myself so I can be able to deal with the vile outcome." Father left Ludden a message about two weeks before the permanency planning hearing asking to return to twice-weekly visits, but he had not heard back.
Father had graduated from family drug court and had not relapsed. To maintain sobriety, he attended meetings and lived in a sober-living house, where he had a lot of support. "But where I'm at in my life today, me going back to using drugs is not an option."
Adoption child welfare worker Kathleen MacIntyre was assigned to Joseph's case in May 2016, after the Agency determined adoption was the appropriate plan. She reviewed the previous reports and addenda, had numerous conversations with child welfare worker Ludden and prepared the section 366.26 report. MacIntyre was not concerned by Schalit's view that Joseph would suffer a huge loss if his connection with Father was severed. She said, "There's a difference between a huge loss and harm." Moreover, positive connection between Joseph and Father did not mean that Father was or should be a parent to him. "I believe it takes more than friendly visits to—to have a parent, child—parental relationship with a child. I believe that it takes a lot more. It takes being there for them on a daily basis, being able to support them and take care of their needs." In MacIntyre's view, terminating Joseph's relationship with Father would not harm the minor "[b]ecause I don't see any evidence that his relationship with his father is central to his sense of who he is and how he gets along in the world."
Father's testimony did not change MacIntyre's mind. Her view was that Joseph's parental connection was with his caregivers, not Father. Joseph enjoyed his time with Father, but their contact was at the most four hours a week for the last year and less before that. Joseph did not rely on Father for his emotional well-being. It was not unusual that the termination of a parental relationship would be a loss to a child. MacIntyre had never observed Joseph one-on-one, with Father or at home with his caretakers.
Child welfare worker Ludden testified consistently with the Agency's reports about Father's visitation history. Father had maintained regular visitation or contacted Ludden when he needed to cancel a visit. Ludden had transported Joseph to two visits with Father and had "very, very briefly" observed about 10 minutes of one visit. In 2016 he left Father a voicemail and text message asking to sit in on visits, but Father did not respond. Ludden testified that he did not receive Father's message asking to resume twice-weekly visits.
Joseph was an active and healthy toddler who appeared to be meeting developmental milestones. He was receiving speech therapy as well as dyadic therapy with Schalit and Brady, who focused on attachment issues relating to trauma. Brady "re-diagnosed" Joseph with post-traumatic stress disorder in August 2016, but she believed his behaviors were developmentally normal for his age. She told Ludden that Joseph's hitting and difficulty with transitions seemed appropriate to his age, experience of trauma and speech delays, and that Joseph might be acting out because he was unable to fully vocalize his feelings and process his circumstances.
Ludden supported the recommendation that parental rights be terminated because of Joseph's age, "the length of time of his life that he has been in the home with the current caregivers, the length of time that he has been in a relationship with his father and the extent that the visits and that relationship has changed. I based it on Joseph's specific needs and the ability for a parent to meet those needs and address those needs based on the history of the case and reunification services and the need for—and the benefit of, a child for such a young age to have permanence."
Joseph's de facto mother testified about the de facto parents' turbulent relationship with Father, their history of caring for Joseph, and the minor's needs, services and routines. She and Joseph's de facto father had not decided whether they would permit contact with Father if parental rights were terminated.
Father's attorney argued that the beneficial relationship exception to adoption applied because Father had visited consistently for the past year and a half and had a parental relationship with Joseph that outweighed the benefit of adoption. He emphasized that Schalit, the therapist who had worked with Joseph and Father weekly since July 2015, believed that severing their relationship would be huge loss to Joseph. Attorneys for the Agency, Joseph and the de facto parents argued that Father had not visited consistently and that the value of his bond with Joseph did not outweigh the benefits of permanency and stability offered by adoption.
The court agreed with Father's position. It explained its ruling: "What I needed to hear and determine is whether or not the beneficial exception applies. Most of what I heard was father bashing. As such, it was not very helpful to the Court. I need to see from Joseph's perspective what relationship he has with his father. So everyone telling me about every sin that dad has committed was perhaps helpful for reunification services, but it did not help me in making this decision today.
"To look at whether or not the beneficial exception applies you have to look at, is there consistent and regular visitation. The first thing Mr. Ludden said in his testimony was that there was in fact consistent, regular visitation. So the Court does not have a concern with that based on what the child welfare worker told us and from what's in the record. The more interesting prong is would Joseph benefit from continuing the relationship with his father to such a degree that termination of parental rights would be detrimental to him, so many things to look at.
"What is the relationship between the father and Joseph? I think everyone will admit it's a positive relationship. Joseph calls him dad. He knows who his dad [is]. That's important to a child, to know who their mom is, to know who their dad is. When Joseph comes for visitation with dad he waves hi—hi, Bob, hi Phil, hi whomever. So he is comfortable with dad and he is comfortable enough with his friends to at least call them by name.
"The argument was made that the time that they spend together was just playdates. The record disagrees. They are not just playdates, this man teaches his son about boundaries. This little boy kisses and hugs his dad good-bye, and then he goes to a very loving home with [the de facto mother], who in my opinion is by far this child's guardian angel here on earth.
"So what do we know about dad's visits and why does the Court not consider them just playdates? Well, he's engaged Joseph in creative play. He's teaching his son. One of the reports talked about how dad engages Joseph in a variety of activities including playing basketball, taking a wagon to the estuary to look for fish and playing at the train stable. It was noted that during these visits father was able to set limits with Joseph, for example, giving him a warning to stop a behavior and taking away a toy if he didn't stop it.
"The report from the child welfare worker noted Joseph laughed and smiled during these visits. It also goes on to talk about how thoughtful and patient he is with his son when there are tantrums, which also occurs with dad, not just [the de facto parents]. He sets limits and allows him space when he needs it. He also helps Joseph give names to the feelings that he has. So this is not a situation where it's just a party a couple of times a week, dad is teaching Joseph something."
The court also acknowledged that the de facto parents were "amazing, truly amazing, wonderful people" who were doing an outstanding job of parenting Joseph. Nonetheless, the court noted, Joseph's behavior was troubling. He was having tantrums, biting, and exhibiting regressive behavior. "No therapist addresses this in their report, but it does make one wonder what it would do to his psyche to take him away from his father. Also, the child does not know where the mother is. The child knows he sees daddy twice a week at [Father's] home. I don't think it's a stretch to say that removing his father from his life would [not] be helpful to any of the multitude of problems that he has now. "
The court placed significant weight on Schalit's assessment of the relationship between Joseph and Father. "So many of you were quick to put down the one person who works with father and son every single week; and yet, she has said and she told Mr. Ludden that . . . the visits that she participates [in] always [go] well and she has observed Joseph using his father for support, going to his father when he needs help. She commented how Joseph's language has grown and how he is more able to express his needs to his father. She says the father is thoughtful and patient with Joseph. When Joseph has tantrums or behavioral concerns the father will set limits with him—as I've previously noted allowing him his space or having Joseph name his feelings and redirecting him.
"[Schalit] explained her role during the visits is to provide support. She stated—and it's a quote by Mr. Ludden, that the visits are going really well and it would be a huge loss for Joseph if he loses his connection with his father. The person who's had the most contact with this little boy and his dad, who is a professional therapist—has stated this, and yet everybody just seems to want to pooh-pooh it. Everybody knows better []. Well, I disagree. I find that extremely compelling, compelling evidence."
The court found that terminating parental rights would be detrimental to Joseph and ordered a permanent plan of legal guardianship with the de facto parents. Joseph and the Agency filed timely appeals, and this court ordered them consolidated.
DISCUSSION
The Agency and Joseph contend the trial court erred when it found the benefits of Father's relationship with Joseph outweigh the statutory preference for termination of parental rights and adoption. Our review of the finding is for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)
While we recognize that other courts have reviewed such a finding to see whether it is supported by substantial evidence (see, e.g., In re Dakota H. (2005) 132 Cal.App.4th 212, 228) or under a hybrid standard (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314), we will not address the divergence here. As we observed in Jasmine D., supra, 78 Cal.App.4th at page 1351, the practical differences between the standards of review in these cases are minimal and not outcome determinative. In this case, the result would be the same under either test.
If a child is found adoptable at the section 366.26 hearing, the juvenile court must terminate parental rights and place the child for adoption unless it finds for a compelling reason that termination would be detrimental to the child because, as relevant here, "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
"To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) The child's relationship with the parent 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 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) "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." (Id. at pp. 575-576.) "The exception does not require proof the child has a 'primary attachment' to a parent or the parent has 'maintained day-to-day contact' with the child." (In re C.B. (2010) 190 Cal.App.4th 102, 124.)
The published case closest to the present situation is In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). The father was a Vietnam War veteran who suffered from posttraumatic stress disorder and poor physical health that impaired his ability to care for a child. His daughter, S.B., was detained when she was three years old after her parents were arrested for drug use. Her detention was a transformative event for the father. He complied with the dependency case plan, stayed drug-free, and regularly visited his daughter three times per week. The child welfare agency concluded Father was unable to care for her as a result of his poor physical and mental health. (Id. at pp. 293-294.) A bonding study found a "fairly strong" bond between the child and her father and the "potential for harm" from terminating their relationship. (Id. at p. 296.) Although the social worker concluded the benefits of adoption outweighed the detriment from terminating the parental relationship, she also recognized losing her father would be a " 'huge detriment' " to the child. (Id. at p. 295.)
The appellate court reversed the termination of parental rights, finding substantial evidence to support application of the beneficial relationship exception on the basis of an emotionally significant relationship growing from frequent and loving visits. Rather than a visitor or playmate relationship, the court found the Father had a true parental relationship with S.B. that continued to develop after she was removed from parental custody despite their lack of day-to-day contact. (S.B., supra, 164 Cal.App.4th at pp. 298-299.) In summarizing the basis for its reversal, the court concluded the father "maintained a parental relationship with S.B. through consistent contact and visitation. His devotion to S.B. was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]." (Id. at pp. 300-301.)
The court that decided S.B. later had occasion to note that its language had proven to be problematic in suggesting the exception applies if the child will derive "some measure of benefit" from the parental relationship. (In re C. F. (2011) 193 Cal.App.4th 549, 558-559 (C.F.).) In C.F. and In re Jason J. (2009) 175 Cal.App.4th 922, 937, the court clarified that S.B. "must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between the parent and child.' " (C.F., supra, 193 Cal.App.4th at pp. 558, 559.)
The issue is a close one, but we cannot conclude the court abused its discretion in declining to terminate Father's parental rights and free Joseph for adoption. Much as in S.B., when Father learned of Joseph's detention he sought and utilized reunification services and fundamentally transformed his life. By the time of the permanency planning hearing Father had progressed from homelessness and addiction to sobriety and full employment. Once visitation started Father regularly participated in visits with Joseph, increasing from one to four hours a week and progressing to unsupervised visits at his home. During visits he creatively engaged Joseph in play, met his needs and set appropriate limits. Joseph calls Father "dad" and responds to him with all appearance of strong affection and happiness. Schalit, an attachment specialist, reported that Joseph looked to Father for support and went to him when he needed help. Father was thoughtful and patient with his son. He set limits when Joseph acted out, allowed Joseph his space, helped him identify his feelings and re-directed him. In this context, the court reasonably placed heavy weight on Schalit's opinion that terminating Father's relationship with Joseph would be a "huge loss" for Joseph to conclude that the beneficial relationship exception applies. Its conclusion is adequately supported by the record and within its discretion.
The Agency argues the juvenile court misapplied the burden of proof by requiring it to prove the beneficial relationship exception did not apply, instead of requiring Father to prove that it did. But the record contains no support for this contention and we will not infer error where none is shown. " '[A]n order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (People v. Carpenter (1999) 21 Cal.4th 1016, 1046.)
Beyond that, the Agency points us to evidence that would support a finding that the exception does not apply. For example, it cites reports and testimony that Father never sought to be involved in Joseph's medical needs or treatment plan, that Joseph acted out after visits, and that he was bonded with and viewed the de facto parents as attachment figures. In effect, the Agency is asking this court to reweigh the evidence and substitute our independent evaluation of it for that of the juvenile court. Whether our review is for substantial evidence, abuse of discretion or under a hybrid standard, it is not within our purview to reweigh the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Shirley K. (2006) 140 Cal.App.4th 65, 72.)
Joseph's argument takes a narrower, but equally unpersuasive tack. His counsel contends the court's ruling was arbitrary, and thus an abuse of discretion, because no professional had opined on "whether the 'huge loss' Schalit anticipated would result from separating the minor and father would actually damage the minor." Not so. The court did not require a professional's opinion to draw a common sense conclusion consistent with Schalit's plain meaning. Would the court have had more information had it ordered a bonding study? Probably. But the court had the benefit of the detailed history and assessments contained in the Agency's reports as well as live testimony from Father, Ludden and MacIntyre to inform its benefit-detriment determination. On this record, Joseph's contention that the lack of a bonding resulted in an "evidentiary void" is unpersuasive.
The Agency also asserts the court erred in finding Father maintained consistent and regular visitation. Here, too, we disagree. Father began visiting Joseph in July 2015, as soon as he was permitted to. From then on he visited Joseph consistently except, for the most part, when visits conflicted with other obligations. He thus missed two months of visits between July and September 2016 due to conflicts with job interviews and job training. He cancelled a handful of other visits to attend court, because he was sick, due to difficulties arranging visits with the Agency or, rarely, due to conflicts with the de facto parents. Father also requested a reduction in visits from twice to once a week shortly before the section 366.26 hearing in light of the denial of his writ petition.
This record supports the court's determination that Father maintained the regular visitation as required under section 366.26, subdivision (c)(1)(B)(i). Father missed a number of visits during the two years between his first therapeutic visit with Joseph and the permanency planning hearing, but he participated in the great majority of them. On almost every occasion that he cancelled a visit he had a compelling reason for doing so. Moreover, there is no evidence that those interruptions in visitation had any ill effect on the relationship between father and son. While the Agency argues that time logs from Father's employer suggest he lied about his work conflicts, it was for the juvenile court judge, not this court, to assess the weight and credibility of that evidence.
As we said earlier, this is a close case. But the record presents no basis to conclude the court's ruling lacks adequate evidentiary support or was "arbitrary, capricious, or patently absurd." (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
DISPOSITION
The order is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Jenkins, J.