In re A.F. CA4/1

Filed 1/31/14 In re A.F. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.F., a Person Coming Under the
Juvenile Court Law.
D064176
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12415)
Plaintiff and Respondent,

v.

E.F. et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and

Appellant E.F.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant B.C.
 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

E.F. and B.C. (respectively, Father and Mother) are the unmarried parents of A.F.,

who is now four years old. The juvenile court terminated parental rights; found the

exception to termination of parental rights under Welfare and Institutions Code section

366.26, subdivision (c)(1)(B)(i)1 (the "continuing benefit exception") did not apply; and

ordered adoption as A.F.'s permanent plan.

Father appeals, arguing the court issued an unlawful visitation order more than a

year before the termination of parental rights; the visitation order led to the diminishment

of the bond between A.F. and Father, and the diminished bond led to termination of his

parental rights. We conclude Father forfeited this argument, as he did not timely

challenge the visitation order.

Mother also appeals, arguing the court's findings are not supported by substantial

evidence; the court considered improper factors when determining whether the

continuing benefit exception applied; and the court should have chosen guardianship as

A.F.'s permanent plan. We conclude substantial evidence supports the court's findings,

and the court did not consider improper factors in its determination.

We affirm the judgment.

1 All further statutory references are to the Welfare and Institutions Code.
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 FACTUAL AND PROCEDURAL BACKGROUND

A. A.F.'s Removal

In July 2010, the San Diego County Health and Human Services Agency (the

Agency) filed a petition on A.F.'s behalf under section 300, subdivisions (b) and (g). The

Agency alleged that Father hit Mother in the face, injuring her and knocking her

unconscious. Police later discovered the parents smoking marijuana in A.F.'s presence

and arrested them, leaving A.F. without adequate care. Police also discovered ecstasy

pills under a mattress in the home. Father later acknowledged that the pills were his.

The juvenile court sustained the petition under section 300, subdivision (b), and

placed A.F. in the care of B.G. (the guardian), a nonrelative extended family member

who had raised Father from the age of 12. The court ordered family reunification

services. The parents' plans focused on their need for domestic violence and substance

abuse treatment. The court also ordered the parents to complete a parenting education

program and to participate in a 12-step program.

At the 12-month review hearing on September 14, 2011, the Agency reported that

the parents had not satisfactorily completed their reunification services and six additional

months of services would not be in A.F.'s best interests. The parents had not "involved

themselves in all aspects of their case plan, and [had], at best, made marginal progress on

the services they [had] engaged in." Moreover, the Agency reported the parents had both

used narcotics again; Mother had not participated in domestic violence treatment; and

Father remained in denial of his domestic violence issues. The Agency concluded that

returning A.F. to the parents would pose a grave risk to her safety and recommended

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termination of parental rights and setting a hearing to select and implement a permanency

plan under section 366.26. The court agreed, finding there was no substantial probability

that A.F. would be returned to the parents within six months. The court terminated

services and scheduled a permanency plan hearing.

Father petitioned this court for review of the juvenile court's order setting a

permanency plan hearing. We denied Father's petition for review. (E.F. v. Superior

Court (Jan. 6, 2012, D060543) [nonpub. opn.].)

B. The First Permanency Plan

On March 5, 2012, the juvenile court held a permanency plan hearing. In advance

of the hearing, the Agency filed a report in which it recommended adoption as A.F.'s

permanent plan. The Agency's recommendation was based on its assessment that the

parents had a playmate relationship with A.F. rather than fulfilling parental roles, the

parents' continuing relationship with each other, their poor judgment in lifestyle choices,

and their apparent lack of insight from the services the Agency provided them.

Despite this initial recommendation, the Agency later recommended guardianship

as A.F.'s permanent plan. It did so based on the request of the guardian, who asked that

Father be given an additional year to regain custody of A.F. Although the guardian

enjoyed caring for A.F. and was willing to adopt her, he expressed that he could not

adopt her in good conscience in light of his belief Father had a strong bond with her.

At the permanency plan hearing, the court appointed B.G. as A.F.'s legal guardian,

ordered that the parents have "reasonable" visitation, and terminated jurisdiction. In

doing so, the court specifically found that the continuing benefit exception to termination

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of parental rights applied to Father because he had maintained regular visitation with

A.F., shared a bond with her, and A.F. would benefit from a continuing relationship with

him. The court did not make such a finding with respect to Mother. With respect to

visitation, the court ordered: "The PARENTS is/are to have reasonable visitation with

the time, place, manner, frequency, and length of visitation to be determined by the

guardian(s) in the best interest of the child." The parents did not object to this order at

the time of the hearing or by way of appeal. Between March and September, the

guardian made A.F. available for visitation on a regular basis.

C. The Guardian's Section 388 Petition

Six months after the permanency plan hearing, the guardian stopped making A.F.

available for visitation with the parents, and filed a section 388 petition to modify the

court's March 2012 order. The guardian sought another permanency plan hearing,

requesting the court implement a more permanent plan for A.F. The guardian contended

the parents continued to maintain a volatile relationship, which included a new and

serious domestic violence incident. The guardian further contended A.F.'s "long[-]term

care and continued stability" would be improved "without the involvement of either of

the birth parents."

According to a National City Police Department crime report, Mother reported

that on September 13, 2012, Father drove her to a motel room against her will, punched

and bit her, and refused to let her leave once they arrived at the motel. The police officer

observed visible bruising on Mother's left arm and a "large" bite mark on the back of her

right shoulder. Father fled the scene and remained a fugitive until at least November 20,

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2012. On that date, Father called the guardian, stating he was "still on the run from the

police" and wished to see A.F. one final time before he surrendered. The guardian,

concerned about Father's intentions, denied the request.

At the January 9, 2013, hearing, the court granted the section 388 petition, finding

clear and convincing evidence that there was no substantial likelihood that A.F. and the

parents would be unified. The court scheduled a hearing to determine a new permanent

plan for A.F.2 Neither parent challenged this order.

D. The Second Permanency Planning Hearing

At the second permanency plan hearing held on July 5, 2013, the court considered

evidence contained in reports the Agency submitted on February 6, May 6, and June 19,

2013; the stipulated testimony of the parents; and counsels' arguments.3

1. The Agency's May 6, 2013, Report

The Agency's May 6, 2013, report includes details of various visits between A.F.

and the parents. The Agency opined that although A.F. seemed entertained when the

parents visited, she relied exclusively on the guardian and his girlfriend as her parental

figures and for her physical and emotional needs. A.F. did not show signs of emotion

when the visits ended, at times recoiled when Mother attempted to show her affection,

ignored Mother's request for help, and at times stated she wanted to go home. The social

worker observed A.F. act "bossy" towards Father, make a "loud yelling sound" when

2 The court reinstated jurisdiction over A.F. on December 12, 2012.

3 The record does not contain the February 6, 2013, report.
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Father kissed her, and easily left the visits and went home with the guardian and his

girlfriend.

The Agency opined that "it [was] clear at [that] time the parent[-]child bond [did]

not exist any longer" and that A.F. "view[ed] her caregiver and his girlfriend as parental

figures that [met] her basic needs; provide[d] her with emotional support and love; [and

were] consistent[] and stable people in her life." Although the parents had been

consistent in their visits since February 2013, A.F.'s relationship with them was one of

friend or playmate.

The Agency further opined the parents had not shown that they were capable of

providing A.F. a stable and safe environment due in part to their unstable and, at times,

violent relationship. The Agency recommended termination of parental rights and

adoption as A.F.'s permanent plan.

2. The Agency's June 19, 2013 Addendum Report

In the June 19, 2013 addendum report, the Agency continued to recommend that

the court terminate parental rights and choose adoption as A.F.'s permanent plan. The

Agency also updated the court on developments since its May 6 report. At Father's

request, the social worker arranged for a visit with A.F. on May 21, 2013. The guardian

transported A.F. to the Agency's office for the visit but, Father did not arrive because,

according to Mother, he was incarcerated again.

Mother had four visits with A.F. from May 14 to June 4, 2013, but missed visits

on May 7 and June 11. According to the social worker, the visitation center monitor

reported the visits were generally positive. However, during the visits on May 14 and

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May 28, A.F. noticed Mother's fingers were bandaged and asked what had happened;

Mother told A.F. her nail had fallen off. The Agency submitted screenshots of Mother's

social media posts that described her being "high" on "herb" and having her fingernail

torn, stating: "This is what happens to stupid drunk people."

The Agency again reported that although the parents visited A.F. on a regular

basis, she parted with no emotional reaction when the visits ended. A.F. viewed the

guardian and his girlfriend as her parental figures and looked to them to provide for her

physical and emotional needs. A.F. viewed Mother and Father only as close relatives.

The parents also continued making poor life choices, continued to have a relationship

with each other, and had not addressed the domestic violence issues in their relationship.

Although the parents loved A.F., they were not capable of parenting her. The Agency

opined the relationship between A.F. and the parents did not outweigh the benefits A.F.

would gain from adoption.

3. The Parents' Stipulated Written Testimony

By way of stipulated written testimony, Father testified he did not agree with the

adoption plan for A.F. because he had "such a great bond" with her. A.F. knew who he

was and called him "daddy." He testified she told him about her school and that she

loved the shoes Mother had given her, and stated she wanted to go to his house. Father

also testified A.F. often asked him about his family members. He testified he wished he

could have had more time with A.F., but the guardian limited his visits and did not allow

Father to care for her while the guardian was at work. Father stated A.F. missed him and

cried for him.

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 In Mother's stipulated written testimony, Mother stated she also did not agree with

the Agency's recommendation of adoption as A.F.'s permanent plan because she had a

bond with A.F. that should not be severed. She testified A.F. called her "mommy."

Mother testified she always brought A.F. food at visits, and A.F. asked Mother for help

opening the food. Mother claimed she also provided A.F. with clothes, shoes, a

backpack, and toys. During visits, she and A.F. read together and practiced counting.

According to Mother, A.F. loved her because she always asked to go home with her.

4. The Court's Rulings

After considering the evidence contained in the Agency's reports, the stipulated

testimony of the parents, and counsels' arguments, the court found by clear and

convincing evidence that A.F. was likely to be adopted if the court terminated parental

rights. The court found A.F. would no longer benefit from a continuing relationship with

either parent, and the continuing benefit exception that previously applied to Father no

longer applied. The court then terminated parental rights, chose adoption as A.F.'s

permanent plan, designated the guardian as A.F.'s prospective adoptive parent, and

referred the matter to the Agency for adoption services.

DISCUSSION

I. Father's Appeal

Father concedes substantial evidence supports the court's July 2013 finding that

A.F. was adoptable and further concedes the court did not err when it found the

continuing benefit exception did not apply to him as of the second permanency plan

hearing. Instead, Father maintains his relationship with A.F. deteriorated because of the

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visitation order the court issued at the first permanency plan hearing in March 2012.

Specifically, he contends the trial court erred when it delegated all of its power over

visitation to the guardian, who in turn unilaterally cut off visitation in late 2012 when

Father was evading arrest. The Agency contends Father forfeited this argument because

he did not challenge the visitation order.

As an initial matter, we agree the juvenile court erred when it relinquished all

control over visitation to the guardian and at the very least should have set the frequency

and duration of the visits. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314; In re

James R. (2007) 153 Cal.App.4th 413, 436; In re M.R. (2005) 132 Cal.App.4th 269, 274;

In re S.H. (2003) 111 Cal.App.4th 310, 319.) However, neither Father nor Mother

challenged the court's visitation order in a timely manner despite the court's express

admonition that they may do so. Father now contends the eventual breakdown of his

bond with A.F. was the result of a visitation order he never challenged. However, both

parents sat on their rights both during the proper time to challenge the visitation order and

when the guardian changed visitation in late 2012.

The visitation order Father challenges issued in March 2012, and the time to

challenge that order has long passed. One purpose for such deadlines is to address

correctable errors in a timely manner so the impact of the error has limited or no

reverberations in the case as it progresses. This is particularly true in dependency matters

where the terms of visitation may influence a young child's relationship with a parent and

eventually lead to inevitable results at hearings in the future. Accordingly, we conclude

Father forfeited this issue because he did not raise it before the trial court or otherwise

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challenge the visitation order. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676,

686; In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)

In any event, even if Father had not forfeited this issue, the trial court's error was

harmless. Father contends the court's error allowed the guardian to unilaterally terminate

visitation and caused the diminishment of the father-child bond he shared with A.F.

However, this argument ignores Father's own role in the cessation of visitation. The

record clearly shows the guardian allowed Father to see A.F. on a regular basis until

Father's own conduct caused a change in the status quo. Following the domestic violence

incident in September 2012, the guardian ended Father's visitation to protect A.F. from

Father's objectively erratic and unsafe behavior and filed the section 388 petition. Faced

with Father's behavior, we have no doubt that to protect A.F., Father's visitation rights

would have been seriously curtailed by the court. In short, it was Father's conduct and

fugitive status which effectively changed his visitation with his child, not the court's

order delegating visitation authority to the guardian.

II. Mother's Appeal

Mother contends the court erred when it found that the continuing benefit

exception did not apply to her. She further asserts the court applied incorrect criteria to

this determination and should have chosen guardianship as A.F.'s permanent plan. We

conclude the court did not apply impermissible criteria, and substantial evidence supports

its findings.

At a permanency plan hearing, the court may order one of three alternatives:

adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289,

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296-297.) If a child is adoptable, there is a strong preference for adoption over the

alternative permanency plans. (Id. at p. 297; San Diego County Dept. of Social Services

v. Superior Court (1996) 13 Cal.4th 882, 888.) Once the court determines that a 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). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)

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 order to

overcome the statutory preference for adoption, the parent must prove that 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 Derek W. (1999) 73 Cal.App.4th 823, 827; In

re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

In the context of section 366.26, subdivision (c)(1)(B)(i), " 'benefit' " means that

the parent-child relationship "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.) "If severing the natural

parent[-]child relationship would deprive the child of a substantial, positive emotional

attachment such that the child would be greatly harmed, the preference for adoption is

overcome and the natural parent's rights are not terminated." (Ibid.)

To review Mother's substantial evidence challenge, we view the evidence in the

manner most favorable to the prevailing party and indulge in all legitimate and

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reasonable inferences to uphold the court's ruling. (In re S.B., supra, 164 Cal.App.4th at

pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the

evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In re

Autumn H., supra, 27 Cal.App.4th at p. 576.)

Here, Mother bears the burden to show her bond is strong enough to confer more

than "some benefit" to the child to overcome the strong preference for adoption at the

permanency plan hearing. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Mother has

not shown her relationship with A.F. rose to a level that outweighs the benefits of

adoption. Although the record shows that Mother maintained regular visitation with

A.F., the record supports that A.F. did not have a significant, positive emotional

attachment to Mother and that A.F. would not be harmed by termination of parental

rights. Although A.F. seemed entertained when Mother visited, A.F. did not show

affection to Mother, recoiled and resisted Mother's affection, did not react emotionally

when Mother left, and seemed more excited to see Father. At best, Mother is A.F.'s

friendly visitor or extended family member. Mother has not shown she had the type of

substantial emotional attachment with A.F. such that termination of parental rights would

be detrimental to A.F. Thus, although A.F. would continue to glean some benefit from

her relationship with Mother, substantial evidence supports the trial court's determination

that the well-being A.F. would gain from permanent placement in the guardian's home far

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outweighed any benefit from a continued relationship with Mother. The court did not err

in finding that the continuing benefit exception did not apply to Mother.4

Mother also argues the trial court considered "impermissible factors" when it

found the continuing benefit exception did not apply. Specifically, she objects to the

court's consideration of the caregiver "stepp[ing] up" to care for A.F., the caregiver's

bond with A.F., and the caregiver's permanent presence and status as A.F.'s parental

figure. We are not persuaded. The court discussed these points in the context of the

parents' lack of any parental bond with A.F., and the comments ultimately weighed on

whether A.F. would suffer detriment if the court terminated parental rights. This is a

proper factor for the court to consider when determining whether the continuing benefit

exception applies.

Mother further contends the court should not have considered "the necessity of a

child to have a structured home environment with predictable routines." However, this

consideration simply reflects the underlying purpose of permanency plan hearings: to

provide a stable, permanent placement for a child. Viewed in this context, the court

considered nothing more than the very purpose of such hearings. The court was not

barred from discussing or considering this fundamental purpose, and we find no error in

its reasoning.

4 Our conclusion here forecloses Mother's final contention that the court "should
have chosen a permanent plan of guardianship or long-term foster care" rather than
terminate parental rights based on the "relationship [A.F.] had with [M]other."
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 DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.

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