Opinion
B301655
06-25-2020
In re E.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.C., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 17CCJP02257, 17CCJP02257A) APPEAL from orders of the Superior Court of Los Angeles County, Michael E. Whitaker, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
Father F.C. appeals from juvenile court orders denying his Welfare and Institutions Code section 388 petition to reinstate family reunification services with his daughter, E., and terminating his parental rights under section 366.26. Father contends that the juvenile court abused its discretion and failed to recognize his significant parental bond with E., thereby erring in terminating his parental rights. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
Prior Incidents
Mother L.M. and father began living together in 2014. Mother gave birth to E. in July 2015. Mother has an older daughter, S., from a prior relationship, whom she sees through monitored visitation. Father has an older son, X., from a prior relationship.
Mother and E.'s half-siblings are not parties to this appeal.
The family had two prior referrals to the Los Angeles County Department of Children and Family Services (DCFS). In September 2014, DCFS received a report alleging harm to S. (then three years old and living with mother) due to domestic violence between mother and father. When mother tried to leave, father blocked her car; walked to the driver's side and kicked the window, causing it to shatter on mother; then kicked mother in the face. Mother sustained injuries as a result and father was arrested. DCFS deemed the referral substantiated, but did not open a case.
The second referral occurred in January 2016, when E. was five months old and S. was four years old. After the 2014 incident, mother moved in with maternal grandmother, but reunited with father in late 2015. The referral alleged ongoing domestic violence against mother, including most recently father punching mother in the face in the presence of the children, breaking mother's nose and bruising her face.
Petition and Non-Detention Report
In November 2017, DCFS received a referral alleging that E. was at risk of harm because of neglect by mother and physical abuse by father. The reporting party also alleged ongoing domestic violence by father against mother. E. was not detained at the time and continued to live with mother and father.
A DCFS children's social worker (CSW) met with mother and E. in their home on November 2, 2017. Mother admitted domestic violence against her by father. She told the CSW that she and father lived together for the past three years. Because of the ongoing domestic violence, mother moved into the home of her mother (maternal grandmother) and step-father three months ago, across the street from father's home. Mother stated that she had obtained a temporary restraining order against father, that father kicked mother in E.'s presence, and that she lost custody of her other child, S., due to the domestic violence between mother and father. Mother also reported that she witnessed father hit E. with a belt on her legs two months prior, punch E. three months prior, causing swelling on E.'s forearm, and hit E. in the head with his fist. She did not take E. to the doctor or call the police following these incident, and stated that father threatened to hurt her if she involved the police.
DCFS spoke with father by phone on November 2, 2017, but he said he wanted to speak to his attorney before any interview. Father agreed to call the CSW the next day, but failed to do so. Between November 3 and December 1, 2017, DCFS made numerous unsuccessful attempts to reach father and left several messages, with no response.
The CSW interviewed maternal grandmother on December 1, 2017. She reported multiple incidents of domestic violence between mother and father and stated she had seen mother with a bruised eye and "busted" lip. Maternal grandmother further reported that father threatened to take away E. from mother. According to maternal grandmother, mother and father were back together following the November 2017 domestic violence incident. She also noted drug use by both parents.
On December 4, 2017, father answered mother's telephone and refused to allow the CSW to speak with mother. When informed of the detention hearing date, father said he would not appear in court without a warrant or subpoena requiring him to do so. He also said he would not participate in any services without a court order and refused to schedule an in-person meeting with DCFS.
DCFS filed a section 300 petition on December 5, 2017. The petition alleged that parents' domestic violence and physical abuse, as well as mother's failure to protect, placed E. at risk of harm within the meaning of section 300, subdivisions (a), and (b)(1). Specifically, paragraph a-1 of the petition alleged that mother and father had an ongoing history of violent altercations, including occasions when father kicked mother in E.'s presence and assaulted mother, physically injuring her. Mother failed to protect E. by allowing father to frequent their home and have unlimited access to E. The petition further alleged that father had threatened to harm mother and mother was afraid of him. Paragraph a-2 alleged several instances of physical abuse by father against E., including striking her legs with belts and striking her arm and head with his fist. Mother failed to protect E. when she knew the child was being physically abused by father. Paragraphs b-1 and b-2 contained the same allegations to support the claim of failure to protect under section 300, subdivision (b).
DCFS filed a non-detention report, detailing the department's interviews with mother and maternal grandmother, as well as its efforts to meet with father. In a last minute information filed on December 15, 2017, DCFS advised that mother and father "continue to demonstrate disregard for the child's safety" and showed a "total lack of cooperation with DCFS, including by failing to return DCFS calls." Neither mother nor father appeared at the detention hearing the same day. On motion by DCFS, the court issued a protective custody warrant detaining E. from her parents, and arrest warrants for mother and father, due to their failure to cooperate with DCFS or make E. available to allow DCFS to determine if she was safe.
Both parents appeared at the next hearing on January 18, 2018. The court found there was a prima facie case for detaining E. The court ordered monitored visitation for both parents at a minimum of two times per week.
Jurisdiction and Disposition
DCFS filed its jurisdiction/disposition report on March 20, 2018. On March 15, 2018, DCFS met with E. and her maternal aunt, with whom she was staying. Maternal aunt reported that during E.'s first week living there, E. stated "ouchie Mommy" and "Daddy hit Mommy." Maternal aunt also stated that mother repeatedly disclosed being a victim of severe emotional and physical abuse by father, witnessed by E., and that father also hit E. Maternal grandmother confirmed the domestic violence by father against mother.
DCFS noted that E. was doing well in her placement with maternal aunt and uncle. DCFS reported that it had not been able to interview either parent. According to maternal aunt, mother visited E. two to three times in the past five weeks; father scheduled one visit but never arrived.
DCFS filed a first amended petition on April 24, 2018. The amended petition added the following allegations: paragraph b-3 alleged that mother had a history of illicit drug abuse, was a current user of methamphetamine, and had used drugs while E. was in her care; paragraph b-4 contained nearly identical allegations regarding drug use by father.
In a last minute information filed May 14, 2018, DCFS reported that during a February 2018 interview with the CSW, mother stated both she and father used drugs, including the night before the meeting. Mother stated she and father have used drugs throughout their relationship, and that father is very violent toward her and hits her when he is under the influence of drugs. Mother said she was afraid to leave father because she had nowhere to go and father always finds her when she leaves. Maternal grandmother told the CSW that mother entered a domestic violence shelter following her DCFS visit in February, but left the shelter after three days. DCFS told the court that neither parent had submitted to drug testing or made themselves available for an interview by DCFS.
At the adjudication and disposition hearing on May 15, 2018, the court sustained four counts alleging domestic violence, physical abuse by father, and neglect by mother (counts a-1, a-2, b-1, and b-2), and dismissed the substance abuse counts (b-3 and b-4) for both parents. It declared E. a dependent of the court and ordered her suitably placed; she remained with maternal aunt and uncle. The court ordered monitored visitation for both parents for two hours twice per week, and family reunification services including domestic violence programming, counseling, and parenting classes. Visitation , First Review Report , & Hearing
On May 25, 2018, the CSW met with E. and maternal aunt, and observed that E. appeared clean and healthy, whereas the first time the CSW met E., she appeared "thin and dirty." Maternal aunt stated that when she first took custody of E., the child would cry uncontrollably and eat voraciously "as if there was no food left." But she observed that E. had made great improvements, was now sleeping well and showing a healthy appetite.
Between June and October, 2018, nine of father's visits were cancelled because father failed to timely confirm or failed to show up for the visit. E.'s daycare provider reported that often the CSW would pick up E. for a visit and then return her shortly thereafter because mother or father had failed to show up for the visit; when this occurred, E. would be upset for the rest of the day.
Father had six visits with E. between June and September, 2018 monitored by a DCFS human services aide (HSA). The HSA reported that during the visits E. actively played and engaged with father, and father was caring and attentive. The HSA also observed that E. appeared to be bonding well with father and was increasingly affectionate, hugging and talking to him. In late August and early September, several visits with father were cancelled after E. began to cry and refused to leave home with the HSA to meet father. When informed, father stated that E.'s caregivers did not like him and he believed they were "doing that on purpose to keep [E.] from him."
DCFS interviewed father on September 21, 2018. Father denied drug use or physical violence toward mother and stated that the DCFS reports were "exaggerated." Father stated he had filed a claim alleging that DCFS discriminated against him. He told the CSW he was concerned E. was being manipulated by her caregivers to not attend her visits. The CSW told father that DCFS continued to have safety concerns because mother and father had not enrolled in or completed any of the court-ordered programs. Father responded that he did not agree with these concerns because there was no domestic violence, and reiterated that the DCFS reports about him were false.
Father submitted a photo of a certificate from an anger management class to DCFS. In a call on October 9, 2018, the CSW told father that DCFS had not yet been able to confirm the validity of the certificate. The CSW also told father that DCFS would not accept online programs. Father stated he did not agree and would speak to his attorney. The CSW also notified father that DCFS was recommending termination of family reunification because both parents had failed to enroll, participate in, or complete their programs, in addition to reports by mother of continued domestic violence. The CSW then heard father state to mother, "Are you listening? She's saying it's your fault." The CSW ended the call as father continued to complain and blame mother and DCFS for E. being taken away.
DCFS filed a status review report on October 25, 2018. It reported that mother and father continued to live together. Mother failed to enroll in or complete any of her court-ordered programs, failed to consistently visit E., and continued to report incidents of domestic violence by father, but failed to report these incidents to law enforcement due to fear. Father had not provided proof of enrollment in or completion of any of his court-ordered programs. He also continued to deny all domestic violence. DCFS reported that during their visits, father was attentive to E. and E. appeared to enjoy spending time with father. However, father had failed to confirm and had cancelled multiple visits.
DCFS also reported that E. and maternal aunt and uncle had been consistently and actively participating in Parent Child Interaction Therapy (PCIT) and had "demonstrated mastery" in PCIT skills learned thus far. E. appeared to be "well bonded" to her caregivers and was "flourishing" in her placement with them. Maternal aunt and uncle expressed a desire to adopt E., and E. referred to them as "mama" and "papa."
DCFS concluded there remained substantial risk to E. in returning home with her parents. DCFS found the risk level very high, with no substantial probability of the child returning home by the time of the six-month review. DCFS thus recommended termination of family reunification services and initiation of a permanent plan for E.
DCFS filed a last minute information on November 13, 2018, detailing its efforts to verify the certificate provided by father for an eight-hour anger management course. Although DCFS was able to verify that father completed the course, it reported that father completed the course as a requirement from his employer, prior to the opening of the instant case, and was in response to the court's orders. DCFS also detailed an interview between mother and the CSW on October 23, 2018, during which mother reported further incidents of physical abuse by father and continued drug use by both parents. Mother stated she wanted to leave father, and agreed to stay with a friend until an inpatient program was available. The following week, mother missed her scheduled visit with E.; when she called DCFS, the HSA could hear father's voice in the background of the call.
Neither mother nor father was present for the November 13, 2018 six-month review hearing. The court found neither parent was in compliance with the case plan, terminated family reunification services, and set the matter for a section 366.26 hearing on March 8, 2019. The earlier order granting parents monitored visitation for two hours twice per week remained in effect.
Interim Reports and Hearings
In its section 366.26 report, filed February 21, 2019, DCFS described the history of monitored visitation between E. and father during the period following termination of family reunification, including multiple instances where father failed to confirm or show up for his visit. In particular, on December 7, 2018, father failed to show up for his visit. After waiting for 30 minutes (twice the usual grace period), the CSW called father to inform him the visit was cancelled. Father responded, "I better not catch you outside with my child." Because father's and mother's visits were infrequent and they often showed up late or failed to confirm the visit, DCFS recommended limiting visits to twice per month for each parent. DCFS also reported that E. had a positive attachment with maternal aunt and uncle and she "continues to excel in placement as she made significant improvement in her development."
In a last-minute information filed March 8, 2019, DCFS reported that mother called the CSW on January 30, 2019. Mother asked for help finding an inpatient program, explaining that she left father's home the prior weekend after overdosing and being taken to the hospital. The CSW provided a referral and mother enrolled that day. However, the following day, the CSW was notified that mother left the program and returned to father's home. Mother called again asking for help on March 1, 2019, but returned to father a few days later.
On March 7, 2019, the CSW received a report from the Los Angeles Police Department (LAPD). According to the police report, mother called the police on February 28, 2019, stating that father had physically assaulted and raped her after a verbal argument. The responding LAPD detective found both father and mother in the home; he reported that mother was trembling and appeared to be afraid to talk.
At the scheduled section 366.26 hearing on March 8, 2019, father's counsel informed the court that father intended to file a section 388 petition. The court continued the matter to May 30, 2019.
DCFS filed a status review report on May 9, 2019, observing that E. continued to do well in the care of maternal aunt and uncle. Mother told DCFS she wanted to have E. back in her care and was making efforts to become sober and end her relationship with father. She had enrolled in a domestic violence shelter in March 2019, and claimed she had no desire to return to father, but expressed fear of the possibility of E. returning to father's care. Father also told DCFS that he desired to have E. returned to his care. He continued to deny the allegations.
DCFS reported that father's consistency with his weekly visits had "improved" since February 2019. During their visits, DCFS observed that E. enjoyed spending time with father and father was attentive to and interactive with E.
DCFS recommended that E. remain placed with maternal aunt and uncle, with the permanent plan of adoption. It observed that maternal aunt and uncle were "committed to meeting the needs of the child and providing [E.] with a safe, stable, and permanent home." Further, although mother and father expressed their desire for E. to return to their care, DCFS noted that both parents had failed to enroll and complete any of the court-ordered programs, and had "failed to demonstrate that they are able to provide [E.] with a safe and nurturing environment." DCFS also noted the recent police report indicating continued domestic violence between father and mother, as well as father's continued denial of the allegations, which "interferes with his ability to address the issues making the family's home unsafe."
Father's Section 388 Petition
On May 29, 2019, father filed a section 388 petition to change the order terminating reunification services. Father asked the court to return E. to his care, or, alternatively, order further family reunification services and vacate the section 366.26 hearing. In the portion of the petition asking "What has happened since that order that might change the judge's mind," father asserted that he "has made substantial progress in his case plan," including completion of a 52-week domestic violence battery intervention course and a parenting program.
As to why "the requested order or action [would] be better for the child," father stated: "Father's visits with the minor have been consistent. Father is attentive and interactive during the visits with the minor. The minor enjoys her visits with the Father. . . . The department is recommending that Father continue to have visits with the minor, which shows that Father's presence in the child's life is in the child's best interests." Father attached a certificate showing completion of a 52-week online domestic violence course and a 12 lesson parenting course, both on March 8, 2019.
Mother also filed a section 388 petition. The court set both petitions for hearing on August 20, 2019 and continued the section 366.26 hearing to the same date.
DCFS filed an updated section 366.26 report on July 30, 2019. It detailed father's visitation with E. from April 25 to July 3, 2019. Father had seven visits during that time period. Father arrived on time and did not miss or cancel any visits. During these visits, the supervising HSA observed that E. hugged father hello and goodbye, sat on his lap, played with father, and that father was loving, attentive, and engaged with E. E. seemed increasingly comfortable and bonded with father. During the most recent visit, the HSA described E. as "very clingy" toward father, hugging him more than usual and asking him to pick her up.
DCFS again noted that father expressed his desire for E. to return to his care and blamed DCFS for removing the child. DCFS rejected father's two certificates of completion "due to the inability to assure father's participation in the program" and also noted that the domestic violence course was "completed in less than 2 weeks despite it being a 52-week program." Further, DCFS opined that father's refusal to admit the allegations interfered with his ability to address the issues making the home unsafe. In addition, despite mother and father having positive monitored visits, they failed to demonstrate an ability to provide E. with a safe and nurturing environment, as evidenced by the recent police report indicating ongoing domestic violence. DCFS also reported that E. continued to do well with maternal aunt and uncle, who expressed their desire to adopt the child. DCFS recommended that the court terminate mother and father's parental rights and proceed with adoptive planning.
DCFS submitted an interim review report on August 2, 2019, including a response to the 388 petitions filed by both parents. In responding to father's petition, the CSW noted that when E. was removed in January 2018, father was ordered to participate in individual/family counseling, parenting, domestic violence, and anger management programs, but he failed to do so. Although he submitted certificates of completion for a 52-lesson domestic violence program and a 12-lesson parenting program in March 2019, these programs were not accepted by DCFS due to the inability to verify completion by father and the fact that completion of these programs in 13 days "ineffectively addresses the safety factors . . . occurring for over 18 months." DCFS noted it previously informed father that it would not accept online programs and provided him with referrals for in-person programs. Nevertheless, father failed to enroll in or complete his court-ordered programs.
The report also noted concerns about father's substance abuse and continued display of abusive behavior as indicated in the police report from February 2019. Further, mother reported continued contact between father and mother as of June 28, 2019. As such, DCFS concluded father had not "sufficiently addressed the issues that brought the family to the attention of [DCFS] that would enable him to be protective of the child." DCFS recognized that father's visits had been more consistent for the past three months, but noted that fact "does not validate father's ability to protect and provide E[.] a safe home and nurturing environment." DCFS observed that E. was generally "very playful" and would engage with others while playing. Further, the CSW received concerning reports from E.'s daycare provider that E. displayed behavioral issues after visits with father. Because E. was "thriving" with maternal aunt and uncle, and mother and father had been given sufficient time to address the issues but failed to do so, DCFS recommended dismissing the section 388 petitions.
Section 388 Hearing
The court held the section 388 hearing on August 20, 2019. Mother and father both testified. Father testified about what he had learned from the online parenting and domestic violence programs he completed. He also described his visits with E.
Mother's and father's counsel argued that the petitions should be granted, because they had demonstrated changed circumstances and their reunification with E. was in her best interest. As relevant here, father's counsel argued that father's visits for the past three months had been "spectacular" and "everything that they should be." He noted that E. was always happy to see father and father's interactions during the visits were "incredibly appropriate and nurturing." He also argued that reunification services would allow E. to continue to have a relationship with X., her half-brother. DCFS's counsel and E's counsel urged the court to deny the petitions.
The court denied both section 388 petitions, finding no changed circumstances and that mother and father failed to meet their burdens of proof to show that it would be in E.'s best interest to grant the petitions. As to father, the court found that father failed to complete his case plan, noting that his online programs were rejected by DCFS. Further, while the "quality and quantity of his visits [with E.] are fine at best," those visits "have not been modified beyond monitored contact." Continuing, the court noted that father should have had unmonitored visits "by this time . . . But because he failed to comply with the Court's orders in completing his case plan, his visits were never modified to unmonitored. So it's not everything it should be." Section 366.26 Hearing
After denying the section 388 petitions, the court proceeded with the section 366.26 hearing. Both E.'s counsel and DCFS's counsel urged the court to terminate parental rights for both parents. Father's counsel argued that the parental benefit exception applied, noting that E. was "close to her father."
The court declined to apply the parental benefit exception, citing In re Breanna S. (2017) 8 Cal.App.5th 636. The court found that continuing jurisdiction was necessary, E. was generally and specifically adoptable under the clear and convincing evidence standard, and there were no exceptions to adoption. The court concluded that mother and father had not established a bond with E., and that any benefit to E. from her relationship with mother and father was outweighed by the physical and emotional benefit to E. from the permanency and stability of adoption, and that adoption was in E.'s best interests. The court further found by clear and convincing evidence that it would be detrimental to E. to be returned to her parents.
The court terminated mother's and father's parental rights and transferred custody of E. to DCFS for adoptive planning and placement, with maternal aunt and uncle designated as the prospective adoptive parents. Father timely appealed.
DISCUSSION
Father argues that the order terminating his parental rights must be reversed because the juvenile court misapplied the law when it considered the parent-child bond exception to adoption. We disagree. I. Legal Principles
"The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful." (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Once the juvenile court terminates reunification services and determines a child is adoptable, it "must order adoption and its necessary consequence, termination of parental rights, unless one of the specified" exceptions stated in section 366.26, subdivision (c)(1) "provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (In re Celine R. (2003) 31 Cal.4th 45, 53; Breanna S., supra, 8 Cal.App.5th at p. 645.)
One exception—the beneficial parental relationship exception—applies if the "[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).) The parent bears the burden of establishing the existence of the exception, which applies in only "extraordinary" cases. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.)
The juvenile court considers two issues when determining whether a parent has met his burden to establish the beneficial parental relationship exception. First, the court examines the regularity of the parent's visitation and contact between the parent and child. (In re Grace P. (2017) 8 Cal.App.5th 605, 612 (Grace P.).) The court does not inquire into the quality of the visitation at this juncture; it simply evaluates whether the parent consistently had contact with the child. (Id. at p. 613; see also In re I.R. (2014) 226 Cal.App.4th 201, 212 ["Regular visitation exists where the parents visit consistently and to the extent permitted by court orders."].) Second, the court considers whether the parent has proven that the bond he shares with his child "is sufficiently strong that the child would suffer detriment from its termination." (Grace P., supra, 8 Cal.App.5th at p. 613.) This requires "a qualitative, more nuanced analysis," taking into account "numerous variables, including but not limited to: 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 parent and child, and 4) the child's unique needs." (Ibid.)
To meet his burden of proving the existence of a beneficial parental relationship, father must do more than show frequent, loving contact, pleasant visits, or an emotional bond with E. He must show that his relationship with E. "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We review a court's refusal to find a statutory exception to adoption under the substantial evidence or abuse of discretion standards of review, depending on the nature of the challenge. Courts generally "apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. [Citations.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) "[B]oth standards call for a high degree of appellate court deference." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) II. Analysis
Courts have applied different standards of review when determining whether an exception to adoption applies. Some apply the substantial evidence standard, others use the abuse of discretion standard or a combination of both, and still others have required evidence compelling a finding in favor of the parent as a matter of law. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [substantial evidence]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion]; In re Collin E. (2018) 25 Cal.App.5th 647, 663 [combination]; Breanna S., supra, 8 Cal.App.5th at p. 647 [matter of law].) The Supreme Court has granted review to determine the appropriate standard of review in this context. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) On this record, we would affirm under any standard.
Father contends he met the first prong requiring regular contact with E. based on his consistent weekly visits with her for the six months prior to the section 366.26 hearing. We are not persuaded.
Breanna S., supra, 8 Cal.App.5th 636 is instructive. There, the mother visited her children "sporadically" during the first 18 months of the dependency proceedings, often cancelling visits that had been arranged. (Id. at p. 647.) In the final six months before the section 366.26 hearing, the mother's visits became more frequent, increasing to two hour monitored visits once per week. (Ibid.) At the section 366.26 hearing, the juvenile court refused to find a "consistent and regular pattern of visitation," noting that the mother's visitation "has not changed from monitored from the time of the initial hearing on this case. . . . It has yet to change to unmonitored because you failed to do what the court ordered you to do, and you get into another physical altercation with each other." (Id. at p. 643.) Thus, the court found mother had not established the parent-child relationship exception and terminated her parental rights. (Ibid.)
The appellate court agreed, reasoning that although mother's visits "apparently became more regular during the final six months before the section 366.26 hearing, even then they occurred only once a week for two hours per visit." (Id. at p. 647.) The court concluded that this evidence "did not compel a finding, as a matter of law, that she had maintained regular visitation and contact with the children, as required for the parent-child relationship exception to termination of parental rights to apply." (Ibid.; see also In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [finding that mother's "inconsistent pattern of visitation" failed to satisfy the first prong of the exception, where mother visited the child regularly for the last three months before termination of parental rights].)
Here, father concedes that his visitation with E. was inconsistent for more than a year - from E.'s removal in January 2018 through the end of February 2019. Indeed, during that period, father frequently cancelled his visits or failed to attend them, causing observable distress to E. when she was returned to daycare without having her anticipated visit. For the final six months leading up to the section 366.26 hearing in August 2019, father's consistency improved. However, at most father's visits occurred once per week for two hours per visit. Although he was allowed two weekly visits for the entirety of the proceedings, he never visited E. more than once per week. Moreover, the court found that father failed to progress to unmonitored visitation because he had not complied with his case plan. Thus, father failed to meet his burden to show regular visitation and contact sufficient to establish the parent-child exception.
Father proposed using paternal grandmother as a visitation monitor to facilitate a second weekly visit. But DCFS reported that paternal grandmother could not be approved as a monitor because she had threatened law enforcement when E. was detained, she lived in the home where the domestic violence occurred, and there was a flight risk if she served as a monitor. Father did not identify any other potential monitors and there is no evidence he ever sought other methods of contact with E., such as phone calls. --------
Father also argues the court erred in finding he did not meet the second prong, thereby concluding that his relationship with E. did not outweigh the well-being the child would gain in a permanent home with adoptive parents. We conclude that the record amply supports the juvenile court's determination.
Father relies almost exclusively on the quality of his visits with E. in the months preceding the section 366.26 hearing to establish his relationship. As DCFS acknowledged, the quality of these monitored visits was "strong," with father and E. playing together, hugging, and father engaging appropriately. But this evidence falls far short of demonstrating a substantial emotional attachment that would cause the child to suffer great harm if severed. (See In re Anthony B., supra, 239 Cal.App.4th at p. 396 [parent-child relationship exception requires parent to demonstrate "relationship remained so significant and compelling in [the child's] life that the benefit of preserving it outweighed the stability and benefits of adoption"]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315 [juvenile court determines "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" (italics omitted)]; In re Autumn H., supra, 27 Cal.App.4th at p. 575 [exception applies only if the severance of the parent-child relationship would "deprive the child of a substantial, positive emotional attachment"].)
A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. (See Breanna S., supra, 8 Cal.App.5th at p. 646; In re Angel B. (2002) 97 Cal.App.4th 454, 466 ["[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"].) 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.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621; see In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
Here, the record demonstrates that E.'s maternal aunt and uncle, as caregivers and prospective adoptive parents, established a stable, loving environment, engaged in ongoing therapy with E., and ensured the child's needs, both physical and emotional, were being met. As a result, E. flourished in their care. It was not error for the court to conclude that father's visitation, alone, did not meet his burden to show that his relationship with E. "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Angel B., supra, 97 Cal.App.4th at p. 468 ["[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt."].) DCFS noted that E. was generally playful and receptive to engaging with others; it also noted behavioral issues observed by her daycare provider following visits with father. Furthermore, in balancing the benefit to E. of adoption and the possible detriment from terminating her relationship with father, the juvenile court was entitled to consider the continuing violence between father and mother, as well as father's failure to take responsibility for his actions or to complete any of the programs ordered by the court. (See Breanna S., supra, 8 Cal.App.5th at p. 648.) Indeed, as late as February 2019, father verbally threatened the CSW when she cancelled a visit that he had failed to attend. Father's lack of improvement and compliance not only raised continuing safety concerns, it stymied his ability to move beyond monitored visitation with E. Father's suggestion that his "unresolved domestic violence issues" did not impact his parental relationship with E. is belied by the record.
We also disagree with father that the court should have considered as a factor in his favor that he cared for E. for "a majority of her life" compared with the 19 months she spent with maternal aunt and uncle. While E. was in mother and father's custody for the first two and a half years of her life, it is not clear how much of that time she actually lived with father. The record contains evidence that mother separated from father on several occasions following bouts of domestic violence, and that she and E. lived with maternal grandparents during those periods. Thus, this factor does not weigh in favor of demonstrating a strong emotional attachment with father.
The additional case relied on by father, In re E.T. (2018) 31 Cal.App.5th 68, is distinguishable. There, the court found it was the "rare case" in which the beneficial relationship exception applied, as the record demonstrated that the four-year-old twins, who had lived almost half their lives with mother, were "very tied to mother." (Id. at pp.70, 77.) Moreover, the mother visited with the children "as often as she was permitted by the social workers, and she also had regular contact with the children by phone in between visits." (Id. at p. 76.) The court also found that mother provided the children with "comfort and affection, and she was able to ease their fear and anxiety" experienced as a result of the separation. (Ibid.) Further factors supporting the exception included mother's voluntary participation in programs and treatment, consistent negative drug tests, and her testimony demonstrating the "insight she has into her own development and the love and care she has for her children." (Id. at p. 77.) These factors are not present in this case.
In short, we find no error in the juvenile court's conclusion that this was not the "extraordinary case" in which preservation of father's parental rights "will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
DISPOSITION
The orders denying father's section 388 petition and terminating his parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. CURREY, J.