In re Josiah W. CA4/1

Filed 2/4/15 In re Josiah W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re JOSIAH W., a Person Coming Under
the Juvenile Court Law.
D066154
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1123)
Plaintiff and Respondent,

v.

DARYL R.,

Defendant and Appellant.

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

Birkmeyer, Judge. Affirmed.

Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
 Appellant Daryl R. (Father) appeals a juvenile court judgment terminating his

presumed parental rights to the minor, Josiah W., and choosing adoption as the

appropriate permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory

references are to this code unless noted.) When Josiah (now 3 years of age) was a year

and a half old, respondent San Diego County Health and Human Services Agency (the

Agency) responded to a police report of suspected child endangerment by offering Father

voluntary services for his drug problems for three months and, later, when this

dependency case was established, reunification services for six months. (§ 300, subd. (b)

[risk of suffering serious physical harm or illness for lack of adequate supervision].)

Father challenges the sufficiency of the evidence to support the court's finding that

no exception to adoption preference (i.e., the beneficial parent-child relationship,

§ 366.26, subd. (c)(1)(B)(i)) applies here. (In re Autumn H. (1994) 27 Cal.App.4th 567,

576 (Autumn H.).) He also argues the court erred when it did not select an alternative

permanency plan, guardianship or long term foster care. (§ 366.26, subd. (c)(1),

(c)(4)(A).) We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jurisdiction Taken; Reunification Services; Six-Month Review Hearing

The Agency received a hotline referral on November 17, 2012 that a child was

screaming at a hotel where Father and Josiah were staying. When police arrived they

found 1 1/2-year-old Josiah had a one-inch bump and abrasion on his forehead. Father

was observed to be under the influence of drugs, and he had two glass pipes with him for

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consuming drugs. Father was charged with child endangerment, possession of drug

paraphernalia, and being under the influence of a controlled substance.

The Agency investigated and offered Father voluntary services, in-home parenting

education, outpatient substance abuse treatment and drug testing. The Agency

determined that Father, the appellant, is not Josiah's biological father but he is the

presumed father. (Fam. Code, § 7611, subd. (d).) Shortly after Josiah was born, his

mother had left him in Father's care, since she was unable to care for him due to her use

of methamphetamine and other drugs. Although her parental rights were also terminated

in this proceeding, she is not a party to this appeal.

After a few months, the Agency determined that Father did not or could not

comply with the voluntary case plan, and it filed a petition under section 300, subdivision

(b). The Agency alleged Josiah was at risk of suffering serious physical harm or illness

because Father was unable to adequately supervise, protect, or provide regular care for

him as a result of substance abuse. At a hearing on March 4, 2013, the court sustained

the allegations, removed Josiah from Father's custody, and ordered supervised visitation

between them.

In the March 25, 2013 jurisdiction and disposition report, the social worker stated

that Father was willing to receive services, such as parenting education, and he wanted to

reunify with Josiah. Although Father denied he had a substance abuse problem, he was

willing to attend substance abuse treatment. However, no visitation with Josiah was

allowed because Father was providing positive drug tests, but Father kept in contact daily

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on the telephone. Paternity testing was performed, showing no probability he was

Josiah's biological father. Father requested a contested dispositional hearing.

Although Father completed an intake appointment for drug treatment on

March 25, 2013, he continued to test positive for methamphetamine and marijuana.

Although he had been referred for in-home parenting classes, he refused to participate.

The court ordered that he would be allowed supervised visitation with Josiah at the

Agency's offices, provided he was clean and sober at all times. Several supervised visits

in March, April and May 2013 went well. Generally, at the end of those visits, Josiah

cried, but once Father was out of sight, Josiah calmed down and fell asleep.

In April, Father agreed to go to parenting education and seemed open to new

ideas. Josiah was moved between several foster homes, but in late May 2013, he was

placed in the home of a nonrelative extended family member (NREFM), Bernetta G. (Ms.

G.).

In May, Father declined to participate in an on-demand drug test, because he had

to leave town. He claimed he was not using drugs and asked that the social worker pay

attention to the positive things he was doing.

After Father decided not to request a contested dispositional hearing, the court

ordered a reunification case plan and allowed Father supervised visitation with Josiah,

with the Agency given the discretion to lift supervision. At a June special hearing on

Ms. G.'s travel request, the social worker reported Josiah had adjusted well to her home,

and she had arranged developmental services for him such as speech therapy, individual

therapy, and a full developmental evaluation.

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 At a team decision making meeting held in late May, Agency representatives and

Father met to discuss Josiah's placement and developmental services. Father did not

seem to be fully engaged at the meeting and said he did not have time to discuss

visitation. A plan was developed anyway for visitation three times per week at a park or

play area. Father was allowed daily telephone contact. In late May and early June,

Father missed a couple of visits, saying he was too busy. A late June visit was

problematic, because Father took Josiah out of Ms. G.'s sight, talked on the telephone,

and complained about the court report. Ms. G. also reported that at a July 3 visit, Father

was not paying attention to Josiah, since he was talking on the telephone, when Josiah

left to go up the escalator by himself. A passerby stopped him at the top until Father

retrieved him.

In June and July, 2013, Father was not attending or participating in drug treatment

as planned, and he had recently tested positive for methamphetamines in May, June and

July. However, he did not feel he had a substance abuse problem. When Father tested

positive for methamphetamine in October, he was referred to a detoxification program.

He left the social worker "a very angry voice mail" stating it was the fault of the social

workers that he was kicked out of his treatment programs, and he never would have

tested positive if the Agency had not taken Josiah away from him. He also said all the

positive drug tests were wrong.

On August 2, 2013, the Agency responded to Father's request to take Josiah out of

the placement with Ms. G. and move him to a foster home. Father said he was having

problems with her and his telephone calls to Josiah. No change in placement was made

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but a telephone schedule was set up. Father continued to have three visits a week with

Josiah.

Father had been sent to therapy at the "Incredible Families" program, whose

therapist evaluated him as needing "to grow in terms of parenting techniques and his

ability to learn more about age appropriate behavior and expectations." The therapist told

him that since he was having dirty drug tests, he must be delusional or lying about his

drug use. She explained to him that he had to stop using marijuana and

methamphetamine and test clean all the time.

In October 2013, Father was having problems with his supervised visits, because

the program would not allow him to walk Josiah to the monitor's car, and Father thought

that was traumatizing him. The social worker told Father that Josiah usually stopped

crying right after the visitation monitor drove off, and she did not agree that he was

having serious separation problems.

The Agency social worker prepared a November 12, 2013 status review report,

stating that the placement was going well, Josiah was receiving speech and individual

therapy, and he was on the waiting list for Headstart. The social worker evaluated Father

as not making substantial progress with his case plan. Although he was participating in

supervised visits and some parenting classes, he continued to test positive for

methamphetamine use, and he had been discharged from three substance abuse programs

because he refused to enter a residential program.

According to the Agency's preplanning and assessment unit report, Josiah was

found to be adoptable. The social worker recommended both Father's and Mother's

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reunification services should be terminated at the upcoming hearing in January 2014, and

that a selection and implementation hearing should be set.

In a December addendum report, Ms. G. reported she had a confrontation with

Father about Thanksgiving dinner, which upset Josiah while he was standing in the

doorway listening to them yell about it. She threatened to phone the police, and Father

angrily left. Although Father was consistently visiting Josiah, Father had not been able to

maintain his sobriety, denied he had a substance abuse problem, and refused to enter

detoxification or a residential recovery program.

By the time of the January 7, 2014 addendum report, the social worker reported

that Father had enrolled in a drug recovery center, was testing clean, and was

participating in parenting class. However, she still felt he was not addressing all the

issues that had brought Josiah into the dependency system.

At the January 7, 2014 contested six-month review hearing, the juvenile court

found by clear and convincing evidence that Father failed to participate regularly and

make substantive progress in his treatment plan, and there was no substantial probability

Josiah would be returned to his physical custody within six months. Therefore, the court

terminated Father's reunification services and scheduled a hearing for selection and

implementation of a permanent plan for Josiah. (§ 366.26.)

B. Permanent Plan Hearing and Ruling; Visitation Logs Exhibit

In preparation for the contested section 366.26 hearing, social worker Sarah

Wilson submitted an assessment report dated May 4, 2014. She stated that Ms. G. was

not able to adopt Josiah and filed a supplemental petition to change his placement. In

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mid-April, he began visiting and being transitioned to a confidential prospective adoptive

home. The prospective foster and adoptive mother (the foster mother) had an approved

adoptive home study and all necessary clearances. She had previously adopted a

dependency child and wanted to add another child to her family. The court agreed that

Josiah could be moved there by the end of April 2014.

Ms. Wilson observed five weekly visits between Josiah and Father that were

facilitated by a visitation monitor, on February 10 and 24, March 10, and April 3 and 14,

2014. Father had missed two visits in March when he was in a detoxification program.

Josiah enjoyed all the visits, starting them out by running up to Father and hugging him,

calling him Daddy. Father brought food and toys, and they colored and read books.

Father sometimes had to redirect Josiah to get his attention. The visitation logs observed

there were times when Josiah whimpered or protested when it was time to leave.

However, at the visits Ms. Wilson had observed thus far, she did not see Josiah show any

significant distress at the end of the visits. She thought that overall, the visits between

Josiah and Father were positive experiences, as it was clear Josiah loved Father and

enjoyed spending time with him.

According to the May 20 addendum report, when the visitation monitor arrived at

Ms. G.'s home on April 21 and 28 to take Josiah to visit with Father, Josiah kicked,

screamed, and refused to go to the car. Ms. G. said she and the monitor attempted to

calm Josiah down, told him he was going to visit with "Daddy," and that he would be

coming back to Ms. G.'s home afterwards. However, they gave up and the monitor was

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unable to take Josiah to the visitation center those days. By late April, Josiah had begun

his visits to the foster mother.

On May 5, social worker Wilson attempted to take Josiah from the home of the

foster mother to visit Father, but Josiah resisted by running back towards the house and

shaking his head. After several minutes, she and the foster mother put Josiah into his car

seat while he screamed, cried, and kicked. However, Ms. Wilson observed that he

calmed down on the way to the visitation center and had a nice visit with Father. They

played with different toys and colored with chalk, and Josiah kept asking where his foster

mother was. Josiah did not have any problem separating from Father when the visit

ended. Another visit on May 12 was similar, in that Josiah separated easily from Father

at the end.

Father filed a motion under section 388 for return of custody or to vacate the

permanency planning hearing and reinstate reunification services. Father had maintained

his sobriety and believed that transitioning Josiah into the foster mother's home was

causing him trauma and distress.

The Agency filed an addendum report in opposition to the section 388 petition.

According to the social worker, it was very likely Josiah could be adopted if parental

rights were terminated, because he was "a smart, sweet and [an] engaging 2-year old

boy." The foster mother was very interested in adopting him, but if she were unable to do

so, there were 51 approved San Diego County families interested in adopting a child with

Josiah's characteristics. When the social worker evaluated the most appropriate

permanent plan for Josiah, she stated that she had examined the strengths and quality of

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the relationship between Father and Josiah, compared to the benefits of adoption. Based

on her observations from five visits between them (and two more later), she saw there

was strength in the relationship between Josiah and Father. She nevertheless concluded

that Josiah usually greeted other people as well as Father with a smile and open arms,

including herself, the court-appointed special advocate (CASA), and others. Josiah was a

very happy and social child who was eager and excited to interact with almost everyone

he encountered.

Overall, Ms. Wilson did not think the father-child relationship was significant

enough to cause detriment to Josiah if Father's parental rights were terminated. She

further concluded that the quality of the parent-child relationship was negatively affected

by Father's continuing drug use. In her opinion, part of having a parental relationship

with a young child includes having the judgment and ability to keep a child safe, but

Father had not successfully participated in substance abuse programs and was continuing

to test positive for methamphetamine and marijuana.

Thus, even though it might cause Josiah some level of emotional distress if the

court terminated Father's parental rights, Ms. Wilson did not think that level of detriment

would outweigh the benefits to him of adoption. Josiah was a young child at a critical

stage in his life, and he would suffer some detriment if he spent the next 15 years in the

foster care system, assuming parental rights were not severed. Ms. Wilson believed that

adoption would provide Josiah with a beneficial sense of stability, belonging and

permanence, which he needed. She recommended the court terminate all parental rights

and order a permanent plan of adoption for Josiah.

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 In the CASA's report filed April 21, 2014, she stated that Josiah had adjusted well

to Ms. G.'s home, but she understood Ms. G was unable to adopt him and that a

permanent plan for adoption should be identified. Due to continued concerns regarding

Father's sobriety, she recommended that his parental rights be terminated.

At the continued hearings on June 12 and 13, 2014, the juvenile court received in

evidence, without objection, the Agency's May 5 assessment report and addendum, and

the CASA report. The court also received as an exhibit the 124 pages of visitation logs.

The court heard testimony from Father's own father, who stated that he was very attached

to Josiah and so were others in his community. Father testified that Josiah started out

calling him Mom or Dad, and sometimes still did so, because Father had played both

roles for him as a baby. Father raised Josiah to be accepting of people that he would

encounter on a daily basis, and Father believed that he deserved to have his dad in his

life, and that the bond between them would never be broken.

Testimony was taken from Ms. Wilson, the social worker, who agreed that

Father's visits throughout the dependency proceedings had been consistent and

appropriate, and were now weekly. During the first six months of the dependency, Josiah

had trouble separating from Father at the end of the visits. More recently, Josiah was still

excited to greet Father but there were only a couple of times in the last five months that

he had any difficulty or distress at the end of the visits. Although Josiah knew who his

father is, and Father generally acted in a parental role toward him during visitation, there

were still concerns that the benefits to Josiah of maintaining a relationship with Father

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did not outweigh the potential long term benefits to him of adoption. Adoption was more

likely to provide Josiah with permanency and stability and being part of a family.

In reaching its conclusions, the court read and considered the evidence contained

in the Agency reports as well as the matters contained in the visitation logs. The court

also considered the testimony of the witnesses and the arguments of counsel. The court

first took note that Father had successfully maintained regular and consistent visitation,

and no one was describing him as merely a friendly visitor. Father and Josiah had loving

and positive interactions and acted in a familial way. However, within the visitation

opportunities provided, which were always supervised in light of the remaining

challenges in Father's life, the court was concerned that Father had failed to progress in

terms of his case plan that was designed to address the issues that brought the matter

before the court, such as providing for Josiah's safety. The court then found that there

was not such a substantial emotional attachment to Father that would cause harm to

Josiah if it were terminated.

The court discussed the seven visits that the social worker had observed, and gave

her opinion considerable weight, that a permanent plan of adoption was appropriate.

Even though there may be some temporary distress to Josiah if he is deprived of the

relationship with Father, there was nothing in the record to support a finding that Josiah

would be greatly harmed if the relationship were severed.

The court thus found by clear and convincing evidence Josiah was adoptable and

would be adopted if parental rights were terminated. The court also found that none of

the exceptions to adoption found in section 366.26, subdivision (c)(1)(B) applied and that

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adoption was in Josiah's best interests. All parental rights to Josiah were terminated, and

adoption was chosen as his permanent plan. A goodbye visit was allowed and this appeal

followed.

DISCUSSION

Father does not argue that Josiah is not likely to be adopted. Rather, he claims he

carried his burden at trial of showing, by a preponderance of the evidence, that it would

be detrimental to terminate his parental rights, because the beneficial parental relationship

exception in section 366.26, subdivision (c)(1)(B)(i) applies. (In re C.F. (2011) 193

Cal.App.4th 549, 553-554.) On appeal, he claims there is no substantial evidence to

support the court's rulings to the contrary.

I

APPLICABLE STANDARDS

When the court determines a dependent 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 C.F.,

supra, 193 Cal.App.4th 549, 553; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) As

relevant here, the adoption preference will not apply if termination of parental rights

would be detrimental to the child because the parent has "maintained regular visitation

and contact with the child and the child would benefit from continuing the relationship."

(§ 366.26, subd. (c)(1)(B)(i).)

On review, the appellant bears the burden of demonstrating a lack of substantial

evidence to support the trial court's findings and orders. (In re L.Y.L. (2002) 101

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Cal.App.4th 942, 947.) In reviewing the sufficiency of evidence, the reviewing court

makes presumptions in favor of the order, views the evidence in the light most favorable

to the Agency, and gives the order the benefit of every reasonable inference. (In re C.F.,

supra, 193 Cal.App.4th 549, 553; Autumn H., supra, 27 Cal.App.4th 567, 576.)

There is some debate in recent case law on the proper approach in review of a

decision about the beneficial parental relationship exception. In In re J.C. (2014) 226

Cal.App.4th 503, the court applied the substantial evidence standard of review to the

factual issues of whether the parent maintained regular visitation and contact with the

child and whether the parent proved he or she had a beneficial parental relationship with

the child. However, as to the weighing test, in which the juvenile court balances the

parent-child relationship against the benefits the child would derive from adoption, the

abuse of discretion test applied to this " ' " 'quintessentially discretionary decision.' " ' "

(Id. at p. 531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)

Certainly, there is a discretionary component to the trial court's determination of a

"benefit from continuing the relationship" under the terms of section 366.26, subdivision

(c)(1)(B)(i). Based on the respective showings, the court must balance "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." (Autumn H., supra, 27

Cal.App.4th at p. 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.) The court must find "a compelling reason for determining that

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termination would be detrimental to the child," (§ 366.26, subd. (c)(1)(B)(i)), due to the

parent's regular visitation and contact with the child, coupled with benefit to the child

from continuing the relationship. (In re C.F., supra, 193 Cal.App.4th 549, 553-554.)

The weight of authority still applies the substantial evidence test to appeals from

decisions about the beneficial parental relationship exception. (Autumn H., supra, 27

Cal.App.4th 567, 575-577.) In doing so, the appellate court does not redetermine the

credibility of witnesses or reweigh the evidence presented. (In re L.Y.L., supra, 101

Cal.App.4th at p. 947.)

In any event, the discretionary determinations made by the trial court must be

supported by the evidence, to avoid any conclusion on review that they were arbitrary,

capricious, or patently absurd. (See In re Stephanie M. (1994) 7 Ca1.4th 295, 318-319.)

II

APPLICABLE STANDARDS; VISITATION PRONG

If the court determines a child is adoptable (as Josiah is), the parent bears the

burden of showing that the termination of parental rights would be detrimental under one

of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re S.B., supra (2008)

164 Cal.App.4th 289, 297.) As described in Autumn H., the beneficial relationship

exception must be examined on a case-by-case basis, taking into account the many

variables that can affect the parent-child relationship. (Autumn H., supra, 27

Cal.App.4th. at pp. 575-576; In re J.C., supra, 226 Cal.App.4th 503, 532.)

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 Here, it is not disputed that Father "maintained regular visitation and contact with

the child," to the best of his ability, within the meaning of section 366.26, subdivision

(c)(1)(B)(i). The trial court acknowledged this factor was satisfied and we accept it here.

We accordingly evaluate the record under the standards for determining whether

the trial court had a substantial basis to conclude that there would be no substantial,

overriding benefit to Josiah in continuing a parental relationship with Father.

(Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "The 'benefit' necessary to trigger

this exception has been judicially construed to mean, 'the 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 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 J.C.,

supra, 226 Cal.App.4th at pp. 528-529; see In re Jasmine D. (2000) 78 Cal.App.4th 1339,

1347-1348.)

We thus inquire whether the evidence showed that even without day-to-day

contact and interaction, this relationship was so "strong and beneficial" that "termination

of parental rights would be detrimental to the child." (In re C.F., supra, 193 Cal.App.4th

549, 555, fn. 5.) More than "some measure of benefit" must be conferred through the

relationship with the parent. (Id. at pp. 558-559.) The parent must show he or she

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occupies a parental role in the child's life, resulting in a significant, positive, emotional

attachment between child and parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

III

ANALYSIS: SUBSTANTIAL BENEFIT PRONG

The issue here is not whether there was a bond between Father and Josiah. The

question is whether that relationship remained so significant and compelling in Josiah's

life that the benefit of preserving it must outweigh the stability and benefit of adoption.

These proceedings addressed the issue of substantial or incidental benefit from this

parent-child relationship in several ways. First, Father argues his difficulty in complying

with his case plan should not be dispositive, because he was able to keep visiting and to

maintain a positive relationship with Josiah, who greeted him in a happy, affectionate

way and called him Daddy. The court gave some attention to Father's testimony that

Josiah started out calling him Mom or Dad, and sometimes still did so, because Father

had played both roles for him as a baby. The record also showed that in general, Josiah

was a friendly and outgoing child to social workers and the CASA, and to other relatives.

"Many toddlers are cuddly, effusively loving, and affectionate." (In re J.C., supra, 226

Cal.App.4th 503, 533.) As of a November 2013 status review report, Josiah's placement

was going well, and he was receiving speech and individual therapy. He continued to do

well out of Father's custody. The focus should be on whether Father was able to resume

the role of a parent toward Josiah. (Id. at pp. 528-529.)

In the ruling, the court stated that Father's ongoing substance abuse problems, as

shown by his treatment programs not completed and his positive drug tests, were

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significantly related to his inability to obtain unsupervised visitation and to otherwise

play a larger role in Josiah's life. Although Father's visitation was regular and of a

familial nature, he was unable to make any substantial progress with his case plan that

would have addressed the issues that gave rise to the need for the dependency

proceeding, such as providing a safe home environment. He did not display behavioral

changes that showed he had taken responsibility for the negative impacts of his lifestyle

on a young child like Josiah, and he had not made significant progress in growing into the

parental role. Even though the social worker consistently acknowledged that there was

strength in the relationship between Father and Josiah, and Father's testimony and his

own father's statements to the court raised the same issue, Father did not show there

would be detriment from severing the relationship, in light of the showing about the

problems to which Josiah would very likely be exposed in his care.

Next, Father points to evidence that Josiah had some difficulty in separating from

him at the end of visits, and that Father sought to have reunification services reinstated

when Josiah seemed to be having adjustment problems during visitation, at around the

time he was moving to the home of the prospective foster mother (April 2014). After

Father lost custody in February 2013, Josiah was moved between several foster homes

until late May 2013, when he was placed in the home of Ms. G., where he benefited from

speech and individual therapy, over about a year. The relevant question for the court was

evaluating the quality of this particular parent-child relationship, given that Josiah had

been out of Father's custody for that time period. " 'Interaction between [a] natural parent

and child will always confer some incidental benefit to the child. . . . ' " (In re C.F.,

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supra, 193 Cal.App.4th at p. 555.) The issue was whether Father occupied a parental role

and it would be detrimental to Josiah if that role were terminated. (Ibid.)

Certainly, there are different explanations for why a child in foster care might have

difficulties with parental visitation at different times, and Father cannot show that Josiah

was having severe separation anxiety that was particularly related to Father, as opposed

to arising from other stability-related problems. On a few visitation dates, long after

reunification services had been terminated and shortly after the foster placement was

made, Josiah seemed to be resisting getting in the car to visit Father, possibly because

that would mean leaving the foster mother behind. The trial court had the responsibility

of analyzing the evidence about all the circumstances in Josiah's life, and there is

substantial evidence to support a conclusion that the problems Josiah was having with

going to and from visitation were not attributable to the strength of his bond with Father.

Because Father continues to contend that the beneficial parental relationship

exception should apply here, he further argues that the juvenile court erred or abused its

discretion by choosing adoption as the permanent plan, over guardianship or long term

foster care. Around the time the hearing was held, Father was pursuing a modification

petition under section 388 and was trying to find other relatives with whom Josiah could

be placed, but none of those efforts by Father or the Agency was successful. At the

permanency stage, the bond the child shares with the parent and the harm that might arise

from terminating parental rights must be balanced against what is to be gained in a

permanent stable home, and "it is only in an extraordinary case that preservation of the

parent's rights will prevail over the Legislature's preference for adoptive placement." (In

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re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This parental benefit exception only

exists where the parent has demonstrated there are such benefits to the child in continuing

the parental relationship as will outweigh the benefits of permanence through adoption.

This is not such an extraordinary case, such as where an older child has formed an

enduring bond with a parent, despite the parent's shortcomings, and where it would be

harmful to the child to interfere with that enduring bond. (See, e.g., In re Scott B. (2010)

188 Cal.App.4th 452, 471.)

On this record, Father could not demonstrate any likelihood that he will be able to

take custody of Josiah within any reasonable time, or that there are other alternative

placements that would be preferable. The trial court acknowledged that 15 years of foster

care for then three-year-old Josiah did not constitute a predictable, stable plan that would

effectively promote his well-being. The court concluded that the potential benefits of

adoption were not outweighed by any benefit from maintaining Father's presumed parent

status. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 424 [balancing test applies].)

Substantial evidence supports this finding that the second prong of the beneficial parent-

child relationship exception was not met. For all of these reasons, the juvenile court did

not err or abuse its discretion by ruling the parental benefit exception to adoption was not

applicable here. (§ 366.26, subd. (c)(1)(B)(i).)

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 DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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