In re Kevin O. CA4/1

Filed 10/4/16 In re Kevin O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 KEVIN O. et al., Persons Coming
Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND D069485
HUMAN SERVICES AGENCY,

Plaintiff and Respondent, (Super. Ct. No. EJ1871DE)

v.

KEVIN O. et al.,

Appellants.

In re SARAH R. et al., Persons Coming
Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND D070055
HUMAN SERVICES AGENCY,

Plaintiff and Respondent, (Super. Ct. No. EJ1871CDE)

v.

CHERYL O. et al.,

Defendants and Appellants.
 CONSOLIDATED APPEALS from findings and orders of the Superior Court of

San Diego County, Sharon L. Kalemkiarian, Judge. Affirmed.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for

Defendant and Appellant Cheryl O.

Christina Gabrielidis, under appointment by the Court of Appeal, for Defendant

and Appellant Richard R.

Neale B. Gold, under appointment by the Court of Appeal, for Appellants Kevin

O. and Tommy O, Minors.

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

Counsel, and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent.

Cheryl O. and Richard R. appeal orders terminating parental rights to their

children, Sarah R., Kevin O., and Tommy O., under Welfare and Institutions Code

section 366.26.1 Kevin O. and Tommy O. appeal orders granting Richard R. status as

their presumed father under Family Code section 7611, subdivision (d) and ordering

visitation. We consider the cases together.

Cheryl and Richard argue the juvenile court erred when it determined the

beneficial parent/child relationship exception did not apply and terminated parental

rights. We disagree. Richard's argument he had a beneficial parent/child relationship

with Sarah, Kevin and Tommy is frivolous. Cheryl implicitly acknowledges she does not

1 All further unspecified statutory references are to the Welfare and Institutions
Code.

2
have beneficial parent/child relationships with Kevin and Tommy. She challenges the

juvenile court's ruling as to Sarah but does not meet her burden on appeal to show error.

We affirm the orders terminating parental rights.

Because we uphold the orders terminating parental rights, Kevin and Tommy's

appeal challenging the juvenile court's orders granting Richard status as their presumed

father and ordering visitation has been rendered moot. Nevertheless, we exercise our

discretion to review the order granting visitation to Richard after the termination of

reunification services as a matter of continuing public importance. We conclude that the

visitation order, which was made during Kevin's and Tommy's transition to a concurrent

planning home shortly before the section 366.26 hearing, was an abuse of discretion,

resulting in a miscarriage of justice.

FACTUAL AND PROCEDURAL BACKGROUND

Cheryl O. is the mother of Sarah R., Kevin O. and Tommy O. (together, children).

The children are now ages nine, five and three years old, respectively. Sarah's father is

Richard R. Cheryl and Richard are deaf and communicate in American Sign Language

(ASL).2 The children are not hearing impaired.

Cheryl and Richard were together at the time of Sarah's birth. When Sarah was

approximately two months old, Richard was sentenced to five years in prison for assault

with a deadly weapon causing great bodily injury. Kevin's alleged father was not

2 The parents were provided with interpreters throughout the case, both in and out of
court. Any use of terms usually connoting verbal communication by the parents, e.g.,
"state," "testify," "said," etc. refers to communication using ASL.

3
involved in his life. Cheryl lived with Tommy's father, Timothy D., for three years.

Prior to Tommy's birth, Cheryl left Timothy and resumed her relationship with Richard.

Richard has an extensive criminal history dating to 1989, including convictions for

domestic violence, battery, grand theft, receiving stolen property, possession of a

controlled substance, felon in possession of a firearm, violation of a restraining order,

transportation of a controlled substance, and assault with a deadly weapon causing great

bodily injury. He also had numerous probation violations, including inflicting corporal

injury on a spouse and willful cruelty to a child. In April 2013, Richard violated his

parole for chasing another person with a knife. He spent approximately four months in

custody.

In September 2013, Richard, who was intoxicated, became angry when Sarah wet

the bed. Richard pulled Sarah off the bed, threw the bed aside, and punched the glass

doors on the television stand, injuring himself. The children were frightened. According

to Richard's parole officer, Richard tested positive for methamphetamine several days

before the incident.

Cheryl started using methamphetamine in 1995, when she was 18 years old. The

Agency was concerned about Cheryl's history of having relationships with men who hurt

her children. Cheryl was involved in dependency proceedings for her two older children

after a boyfriend inflicted a severe brain injury on Cheryl's one-year old son.3 Tommy's

father sexually abused Sarah. Kevin's father used and sold drugs.

3 Cheryl's parental rights to her two older children were terminated in 2002, and the
children were adopted by their maternal grandparents.

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 The San Diego County Health and Human Services Agency (Agency) initiated

dependency proceedings on behalf of the children. Because Richard was out of the home

as a condition of probation, the Agency allowed the children to remain in Cheryl's care

on condition she not allow Richard to have any contact with the children.

Less than a month later, in Sarah's presence, Richard cut Cheryl's hand with a key

when she asked for the car. Cheryl told the social worker she was overwhelmed caring

for three children, needed Richard to return home, and intended to maintain their

relationship. The juvenile court detained the children in protective custody and ordered

the Agency to provide supervised visitation services to Cheryl and the children.

At the jurisdictional and dispositional hearings, the juvenile court sustained the

petitions, removed the children from parental custody and ordered a plan of reunification

services. In Sarah's case, the juvenile court permitted Richard to have supervised

visitation with Sarah with the concurrence of his parole officer. The juvenile court did

not address visitation between Richard and Kevin and Tommy. Nevertheless, the Agency

permitted Richard to visit with all the children because the children were placed together

and the boys viewed Richard as a father figure.

Sarah was defiant, parentified and bossy. She suffered from enuresis and

encopresis. Sarah did not have appropriate sexual boundaries with her brothers. Shortly

after starting therapy, Sarah disclosed that she had been sexually abused by Tommy's

father and by Richard's older son, Jose. Sarah described seeing her father cut her

mother's hand with the car keys. A short time later, Sarah looped a necklace she was

wearing around her bedroom doorknob and tried to choke herself. As a result of her

5
attempt to injure herself, the Agency removed Sarah from her foster home and her

brothers, and placed her with an experienced foster parent.

Kevin was loud and rambunctious. He had a speech impediment. Tommy had

delays in speech, fine motor skills and problem solving. He was referred for services.

Kevin and Tommy were rough and physical boys. They hit each other. Kevin would bite

Tommy.

Cheryl moved to a sober living facility in February 2014. In March, the social

worker received a report that Cheryl was using methamphetamine and crack cocaine.

Cheryl denied any drug use.

Richard left his sober living residence in December 2013. He relapsed on drugs in

February or March. In April 2014, when meeting with the social worker, Richard refused

to discuss reports he smelled of alcohol during several of his visits with the children. In

May, Richard was hospitalized after his 18-year old son, Jose, stabbed him multiple times

in the abdomen. During his recovery, he was unable to visit Sarah.

In reports prepared for the six-month review hearing, the social worker said

Richard's and Cheryl's visitation with the children during the six-month review period

was inconsistent. Cheryl cancelled visits shortly before they were scheduled. She

cancelled at least one visit because she wanted to "sleep in." When Cheryl did not attend

visits, Richard did not visit the children.

Sarah continued to display impulsivity, anxiety, and the inability to follow

directions. Sarah talked about her brothers, who were in a different foster home, and

worried about them. Sarah had a visit with Cheryl on July 1. Sarah was initially shy with

6
her mother, saying she had not seen her in a long time and she had missed her a lot. After

a few minutes, Sarah kissed and hugged her mother. On July 16, when visits with

Richard resumed, Sarah refused to visit him. On her way home, she cried and said she

wanted to go home to her parents. Sarah was very affectionate with her mother during

visits. They cuddled and played games. Sarah refused to visit Richard.

In August, the juvenile court found that Richard and Cheryl did not make

substantive progress in their case plans and terminated reunification services. The

juvenile court scheduled a section 366.26 hearing in December 2014. At that hearing, the

Agency requested a continuance to assess permanency plans for the children. The

children were still in two separate placements. Their respective caregivers were

unwilling to adopt them. The social worker said the children were extremely bonded and

she wanted to place them together in an adoptive home.

Cheryl tested positive for methamphetamine in February 2015.

The social worker reported Sarah's mental health was improving with therapy,

services, medication and the continuous support of her foster mother. Kevin and Tommy

were doing well in the placement. The children saw each other at their twice weekly

visits with their mother. The children appeared happy to see their mother. Cheryl

engaged with the children and they played throughout the visits. After the visits with

Cheryl, Sarah would stay for a visit with her father. Before her visit with her mother

ended, Sarah would say, "I don't want to visit with daddy." When the social worker

asked Sarah why she did not want to visit her father, Sarah said she was afraid of him

because of what he did to her mother. Kevin and Tommy would see Richard in the

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distance when he arrived to visit Sarah. Cheryl would tell the boys to "wave to daddy."

Kevin and Tommy did not display any emotional response to seeing Richard. They did

not attempt to run toward him or hug him.

In May and again in July, Richard applied for presumed father status for Kevin

and Tommy, and asked for visitation. A hearing on his requests was continued several

times.

Cheryl tested positive for methamphetamine in September.

In October, the Agency identified potential adoptive parents for the children

(caregivers). They introduced the children to the caregivers. In November, the children

started visiting the caregivers at their home. They had an extended visit with the

caregivers over the Thanksgiving holiday. The children appeared to be transitioning well

and began calling the caregivers "mommy" and "daddy."

Cheryl relapsed on methamphetamine in November.

In December, the social worker reported that Cheryl continued to have regular

visitation with Sarah, Kevin and Tommy, and there were no concerns about the visits.

Richard's visits with Sarah appeared to have stabilized. He and Sarah had regular visits,

and the Agency did not have any concerns about their interactions.

Hearing on Richard's Request For Presumed Father Status

The juvenile court held a hearing on Richard's request for presumed father status

for Kevin and Tommy on December 11. Richard testified he always felt he was the

father of all the children. He believed he was considered the father of the boys. Richard

8
did not understand the court did not consider him to be Kevin's and Tommy's father until

November 2014. He said, "I am the father for these children."

The juvenile court inquired about translating the phrase "presumed father" from

English to ASL. The interpreter said there was not an exact translation, and he had been

using the concept "being named or called father for the two boys, not the real, not the

biological father," and using the shorthand phrase "real father" when translating.

The parties argued whether Richard was required to file a section 388 petition to

assert his paternity status. The juvenile court found that, with or without a section 388

petition, Richard met his burden to establish his status as Kevin's and Tommy's presumed

father.

Hearing on Richard's Request for Visitation

At a contested hearing on December 17, 2015, the social worker said Kevin and

Tommy had not lived with Richard for 26 months. In the last 14 months, Richard asked

to visit the boys four times. The boys were having a smooth transition to their current

placement. They were adjusting to living in a new home with new parental figures, and

coping with losing their foster parents, with whom they had been living for 16 months.

Reintroducing Richard to the boys at this time could confuse them and disrupt the

relationship they were forming with a new family.

The social worker testified Tommy was working with a therapist to resolve a

history of indiscriminate attachment. Tommy's attachment disorder presented a safety

risk to him because he would run to people and hug and kiss them. His therapist was

9
working very closely with him and his caregivers to create healthy attachments in his

current placement.

According to the social worker, Kevin had had several paternal figures in his life,

including Richard, Tommy's father and his foster father. Kevin was just starting to adjust

to his new caregiver as a potentially permanent father figure in his life. If Richard were

reintroduced to Kevin, it might disrupt his bonding and attachment with his caregiver.

Kevin referred to his caregiver as "daddy." Visitation would be confusing to the boys,

allow internal conflicts to arise, and impede the attachment process.

The social worker believed visitation with Richard would be detrimental to the

boys. She acknowledged Richard demonstrated a parental role during his visits with

Sarah, and those visits had been positive.

Tommy's therapist said Tommy might not understand what Richard's role was or

recognize him as a father figure. Kevin's therapist said she could not comment on

visitation because she had not met with Richard. However, in general, it was preferable

for young children to have one person or a set of people to focus on when forming a new

attachment.

Cheryl testified Kevin and Tommy always called Richard "dad." When they saw

Richard in passing on their Thursday visits, they would call out "dad, dad" and try to go

to him.

Characterizing the evidence presented by the social worker and the boys' therapists

as speculative, the juvenile court found there was no showing visitation would be

detrimental to Kevin and Tommy. The court noted the boys visited with Richard until the

10
six-month hearing date, and those visits were not detrimental to them. The court ordered

the Agency to provide one supervised visit a week.

Kevin and Tommy, through counsel, appealed the trial court's rulings granting

Richard's requests for presumed father status and visitation.

The Section 366.26 Hearing

The 366.26 hearing began on January 7, and continued over six more days in

January and February. The juvenile court admitted in evidence the Agency's court

reports, family visitation narratives and logs, Sarah's stipulated testimony, and a letter

from Richard. The juvenile court issued its ruling on March 21, after hearing closing

arguments.

In reports prepared for the section 366.26 hearing, the Agency recommended the

juvenile court terminate parental rights and free the children for adoption. Sarah, Kevin

and Tommy were adoptable. In addition to approved adoptive families in San Diego

County, the children were living with caregivers who wanted to adopt them. There were

no concerns about the caregivers' ability to meet the children's needs. Sarah told the

social worker she did a "good job" choosing a family for herself and her brothers.

The social worker did not believe Cheryl had beneficial parent/child relationships

with her children. Kevin resisted visiting his mother and had to be encouraged to attend

visits. Tommy said seeing his mother was "ok." On occasion, Sarah was reluctant to

visit her mother.

The social worker testified she was assigned to the case on October 1, 2014. She

fully informed the caregivers about the children's issues. Recently, Sarah had displayed

11
some concerning behaviors, such as biting, but her caregivers had worked through the

issues with her and remained committed to adoption.

According to the social worker, Sarah appeared to be "very relaxed, very

comfortable" and happy in her caregivers' home. The caregivers met all of Sarah's

behavioral and emotional needs. The social worker did not believe that Sarah viewed her

parents as parental figures. Sarah continued to tell the social worker about seeing her

father cut her mother with car keys and how frightening that was for her. Sarah resisted

visiting her father. When asked why she did not want to visit him, she said, "I don't know

I just don't."

Sarah consistently said she wanted to live with her brothers. In March 2015 and

again in early January 2016, Sarah said she wanted to go home to her mother. In January,

when Sarah said she wanted to live with her mother, the social worker explained that

Sarah was going to live in a safe home where someone would protect and care for her.

Sarah's demeanor was unemotional. She appeared to accept the social worker's

explanation and moved on to a different subject.

Kevin appeared to be blossoming. He did not act out. Kevin objected to visiting

his mother. She did not meet his needs. Usually, he was standoffish with his mother, but

was more affectionate with her on his last visit. Kevin did not want to visit Richard. He

said, "I think I like it better if only Sarah and Tommy visit Daddy."

Tommy was removed from his parents when he was 16 months old. The social

worker believed Tommy viewed Cheryl as someone he visited twice a week. Tommy did

12
not have a parent/child relationship with Richard. When asked who his father was,

Tommy replied, "I don't have a dad."

Cheryl testified she saw her children twice a week. Tommy always ran to her

saying "mom" in sign language. Kevin would give her a big hug, saying "mommy,

mommy, mommy." Sarah called her "mom." Sarah asked when she could come home.

She would get emotional. Cheryl tried to comfort her. Sarah would sit on her lap and

Cheryl would tell her not to worry. When Sarah calmed down, Cheryl would help her

with her homework.

Once in a while Kevin would become sad or upset. Cheryl would talk to him for a

little while. He would calm down and go back to playing. Tommy ran to her when he

saw her. She had to discipline him once in a while for throwing toys. Cheryl would

teach colors and animals to Tommy, and she helped Kevin with his spelling.

Cheryl said she loved her children and wanted to keep them. She acknowledged

she had made mistakes. Cheryl said she was tied to her children and treasured them. She

was their mother.

Richard testified the children called him "dad." They wanted to come home.

Richard said, "We want the kids with us . . . we want to be a family."

The juvenile court accepted Sarah's stipulated testimony.4 In approximately

September 2015, prior to the children's placement with the caregivers, Sarah said she

would be sad if she could not see her brothers again. Sarah said she loved her father and

4 The parties stipulated to the admission of Sarah's statements. The record does not
reflect the identity of the interviewer or the dates of the interviews.

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her father loved her. She was happy and excited to visit with her father. She would be

sad if she could not see her father again because he loved her. During visits, Sarah

hugged her mother and told her she loved her. Her mother hugged her back and said she

loved her. Sarah missed her mother when she did not get to see her, and wanted to see

her more often. If Sarah could live with anyone she wanted, she would live with her

brothers. Sarah would feel sad and mad if she could not see her mother again.

In a second undated statement, Sarah said when she visited her mother, they

played together and ate snacks. She loved her mother and would be sad if she could not

see her. Her first choice was to live with her mother and brothers. Her second choice

was to live with her current caregivers and her brothers. Sarah did not know what

adoption was. After the interviewer explained to Sarah that adoption meant she would

live forever with her caregivers and her brothers, but would not be able to see her parents

again, Sarah was not sure she wanted to be adopted. Sarah said if she were adopted by

her caregivers and could not see her mother, she would be sad at first but could be happy

again.

Sarah's therapist, Maria Teresa Kelley, L.C.S.W., testified she provided

therapeutic services to Sarah for approximately two years. Sarah was parentified. She

plummeted emotionally when she was separated from her brothers. She talked about

them nonstop and called them her "babies." Sarah acknowledged visiting her father but

said he was not in her life. She spent very little time talking about her mother. Sarah's

enuresis increased after visiting her mother.

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 Sarah was relaxed and happy with her caregivers. She looked to her caregiver,

Shawna, for physical and emotional care, comfort and affection. She was affectionate

and playful with Shawna. Sarah was at ease. In Kelley's opinion, visits with her mother

were detrimental to Sarah. They confused her and placed her back into the parental role.

Every time Sarah visited her mother, Sarah reverted to parentified behavior.

Kelley testified Sarah had processed the concept of adoption and its consequences

for visitation. She did not want to continue visiting her parents. Kelley said, "[Sarah]

wants to be adopted and be in that forever home."

The children's caregiver, Shawna Z., testified the children had been in her care for

three months. They were doing very well. The children were excited to be with each

other. Usually, Sarah was excited to see her mother. After visits, Sarah was hyper, bossy

and controlling with her brothers. The boys referred to Richard as "Sarah's dad." Kevin

did not want to visit Richard, and would cry or throw a tantrum before visits. Tommy

took his cue from Kevin but was generally willing to visit Richard. After visits, the boys

were hyper and agitated. If a visit was cancelled, Kevin would be happy. He insisted

Richard was not his dad. Tommy did not seem to care. Sarah would ask the reason the

visit was cancelled, but the cancellations did not appear bother her. The boys did not talk

about their parents. Sarah talked about her mother. She told Shawna about taking care of

her brothers, and recently told her about the time her mother fainted and she took care of

Kevin.

Shawna was working with Sarah to reduce her parentified behaviors. If Tommy

cried, Sarah would run to pick him up. She felt it was necessary to get her brothers ready

15
to take a bath and brush their teeth. Shawna was working with the children to help them

understand that she was the parent, not Sarah. Sarah was doing better. The children

called Shawna "mommy," and her husband "daddy." Shawna and her husband were

committed to adopting the children.

The juvenile court found that Cheryl faithfully and regularly visited the children

and that Richard regularly visited the children, although his visitation was interrupted by

legal proceedings. The juvenile court said it read every line of the visitation logs. The

court found that Cheryl was loving with the children during visits, but the nature of the

children's bond with her was problematic. The children, especially the boys, seemed

ambivalent about visiting her. Sarah consistently expressed her love for her mother.

However, her therapist's testimony was very credible. Sarah was parentified and did not

turn to her mother for support, guidance or comfort. The court found that the benefits of

a loving, stable home outweighed the bond the children had with Cheryl.

The juvenile court found that Kevin and Tommy did not recognize Richard as

their father, and did not have a beneficial parent/child relationship with him. The court

said Sarah's relationship with her father was one of "coming close and avoiding, coming

close and avoiding," and found that Sarah's bond with her father did not outweigh the

benefit she would gain from adoption. The juvenile court found that the children were

adoptable, there were no exceptions that would make termination of parental rights

detrimental to the children, and terminated parental rights.

Cheryl and Richard appealed from the orders terminating parental rights. On this

court's own motion, we ordered the cases to be considered together.

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 I

DISCUSSION

A

The Appellants' Contentions

Cheryl argues she met the statutory requirements to show she and Sarah have a

beneficial parent/child relationship. Citing In re Bailey J. (2010) 189 Cal.App.4th 1308,

1315 (Bailey J.), she argues the reviewing court impermissibly imposed a nonstatutory

"third prong" by requiring the juvenile court "to determine the importance of the

[parent/child] 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." (Ibid.) Cheryl contends reversal of the order terminating her parental rights to

Sarah must necessarily result in the reversal of the orders terminating her parental rights

to Kevin and Tommy because the three children are a bonded sibling group.

Richard asserts the juvenile court erred when it terminated parental rights because

he demonstrated he had a beneficial parent/child relationship with Sarah, Kevin and

Tommy. The parties join in each other's argument.

B

Legal Standards for Termination of Parental Rights and Standard of Review

At a permanency planning 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,

296-297 (S.B.).) 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

17
v. Superior Court (1996) 13 Cal.4th 882, 888.) If 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.)

An exception to termination of parental rights applies where "[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).) " '[B]enefit from continuing

the [parent/child] relationship'. . . mean[s 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 (Autumn H.).) "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 factors to be considered when looking for whether a relationship is

important and beneficial are: (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 the

parent and the child, and (4) the child's particular needs.' (In re Angel B. (2002) 97

Cal.App.4th 454, 467, fn. omitted.) 'Interaction between natural parent and child will

always confer some incidental benefit to the child. The significant attachment from child

to parent results from the adult's attention to the child's needs for physical care,

nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from

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day-to-day interaction, companionship and shared experiences. [Citation.] The

exception applies only where the court finds regular visits and contact have continued or

developed a significant, positive, emotional attachment from child to parent.' " (Bailey J.,

supra, 189 Cal.App.4th at pp. 1315-1316.)

We 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. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; Bailey

J., supra, 189 Cal.App.4th at pp. 1314-1315.) We do not reweigh the evidence, evaluate

the credibility of witnesses or resolve evidentiary conflicts. (Autumn H., supra, 27

Cal.App.4th at p. 576.)

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 C

Analysis

1. A balancing test is required to determine the second prong of section 366.26,
subdivision (c)(1)(B)(i).

Cheryl argues the beneficial parent/child relationship exception requires only two

findings: (1) the parent has regularly visited the child, and (2) the child would benefit

from continuing the parent/child relationship. (§ 366.26, subd. (c)(1)(B)(i).) Cheryl

argues that under Bailey J., the parent must prove (1) regular visitation, (2) the child

would benefit from continuing the relationship, and (3) "the existence of that relationship

constitutes a 'compelling reason for determining that termination would be detrimental.' "

(Bailey J., supra, 189 Cal.App.4th at p. 1315.) She contends the third prong is not

required by statute. We are not persuaded by Cheryl's argument.

Section 366.26, subdivision (c)(1)(B) provides that an adoptable child must be

freed for adoption by terminating parental rights unless the court finds "a compelling

reason for determining that termination would be detrimental to the child . . . ." (Ibid.)

One reason is defined as "[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).) Thus, the existence of a beneficial parent/child relationship exception

is a compelling reason for not terminating parental rights.

Cheryl oversimplifies the meaning of "the child would benefit from continuing the

relationship." (§ 366.26, subd. (c)(1)(B)(i).) In Autumn H., this court recognized that

"[i]nteraction between natural parent and child will always confer some incidental benefit

to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The Autumn H. court held

20
that " 'benefit from continuing the [parent/child] relationship' " means 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."5

(Ibid.) This court further explained, "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.)

In discussing the standard of review, the Bailey J. court explained the juvenile

court's determination of the beneficial parent/child relationship exception is a

" 'quintessentially' discretionary decision, which calls for the juvenile court to determine

the importance of the [parent/child] 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." (Bailey J., supra, 189 Cal.App.4th at p. 1315.) This language

does not impose a new requirement; rather, it is simply a concise restatement of long-

standing case law that was first set forth in Autumn H.

Bailey J. states the juvenile court must assess "the detrimental impact that [the

severance of the parent/child relationship] can be expected to have." (Bailey J., supra,

189 Cal.App.4th at p. 1315.) This is equivalent to determining whether "severing the

parent/child relationship would deprive the child of a substantial, positive emotional

attachment such that the child would be greatly harmed." (Autumn H., supra, 27

5 Cheryl does not challenge the applicability of Autumn H. in assessing whether the
child would benefit from continuing the parent/child relationship. To the contrary, she
relies on Autumn H. in arguing Sarah would benefit from continuing their relationship.

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Cal.App.4th at p. 575.) Similarly, weighing "the importance [of the parent/child

relationship] . . . against the benefit to the child of adoption" (Bailey J., at p. 1315)

requires the same assessment as determining whether 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" (Autumn H., at

p. 1315). Our analysis is supported by the Bailey J. court's reliance on Autumn H. in

applying the law concerning the beneficial parent/child relationship exception to the facts

of its case. (Bailey J., supra, 189 Cal.App.4th at p. 1316.) To the extent any language in

Bailey J. suggests there is a "third prong" in determining whether section 366.26,

subdivision (c)(1)(B)(1) applies, it is mere dicta.

Here, the juvenile court assessed the beneficial parent/child relationship exception

under Autumn H., not under Cheryl's interpretation of Bailey J. After finding that the

parents met the first prong of section 366.26, subdivision (c)(1)(B)(I), the juvenile court

said, "The second step is for the Court to consider whether the parent/child bond is of a

quality, and I'm referring to the language in the case of Autumn H., and that is does the

parental relationship promote the well-being of the child to such a degree as to outweigh

the well-being the child gains in a permanent home?" The court said this meant a parent

"who will protect the children, who will guide them, who will give them stability,

dependability, sobriety . . . . [and] the chance to grow to be healthy and happy adults."

Cheryl does not show error. The juvenile court correctly applied Autumn H. in

determining whether the beneficial parent/child exception applied.

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2. Cheryl does not meet her burden on appeal to show the juvenile court erred in
terminating parental rights.

Cheryl contends Sarah has a significant, positive and emotional bond with her.

She argues Sarah continued to exhibit a fragile emotional state, and will be harmed if her

bond with her is severed. Cheryl contends she proved the beneficial relationship

exception under any standard, and reversal of the order terminating parental rights is

required.

The record shows that Sarah spent a significant portion of her life in her mother's

custody, and continued to be emotionally traumatized by her mother's failure to have

maintained a safe home environment for her. Cheryl did not place Sarah's needs ahead of

her own. Instead, Cheryl maintained relationships with violent and abusive men. As a

result of Cheryl's inability to provide proper care and supervision to Sarah, Sarah suffered

from enuresis and encopresis, had significant behavioral difficulties, and tried to injure

herself. Her emotional and behavioral condition improved slowly with therapy,

medication, stability and appropriate care.

Cheryl's visits with Sarah were inconsistent during the reunification period, but

occurred regularly throughout the remainder of the proceedings. Their visits were

pleasant and affectionate. Shortly before the section 366.26 hearing began, Sarah said

she loved her mother and wanted to live with her. Sarah said she would be sad if she

could not see her mother but she could be happy again. Although we agree with Cheryl

the record shows that Sarah had an emotional bond to her, this is not sufficient, by itself,

to establish that Sarah "would benefit from continuing the relationship." (§ 366.26, subd.

(c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.)

23
 Therapist Kelley believed Sarah's visits with her mother were detrimental to her

because they confused her. Every time Sarah visited her mother, Sarah reverted to

parentified behavior. Kelley believed Sarah had processed the concept of adoption.

Kelley said, "[Sarah] wants to be adopted and be in that forever home." Sarah told the

social worker she did a "good job" choosing a family for her and her brothers. Sarah

quickly developed an affectionate relationship with her caregiver, and was "at ease" in

her home. Recently, Sarah was sometimes reluctant to visit her mother and was not upset

when visits were cancelled. The juvenile court did not abuse its discretion when it

determined that continuing Sarah's relationship with her mother was outweighed by

Sarah's needs for a stable, secure and safe home, and loving, dependable and sober

parents.

3. Richard's argument he had beneficial parent/child relationships with the children
is frivolous.

Richard's argument he had beneficial parent/child relationships with Sarah, Kevin

and Tommy is completely without merit. " 'Counsel and their clients have a right to

present issues that are arguably correct, even if it is extremely unlikely that they will win

on appeal.' [Citation.] However, an issue raised in an otherwise meritorious appeal may

be held to be frivolous when ' "it indisputably has no merit—when any reasonable

attorney would agree [it] is totally and completely without merit." ' [Citations.] This is

an objective standard." (In re Michael G. (2012) 203 Cal.App.4th 580, 595.)

The record shows that Richard did not have a parental relationship with Sarah,

Kevin and Tommy. "The positive and negative effect of interaction may be shown by

such things as, despite regular visitation by the parent, the fact that a child repeatedly

24
expresses that he or she does not want to visit the parent. [Citation.] . . . Indifference to a

parent, anger or detachment are also factors indicating the lack of the necessary positive

relationship." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. 4.)

Richard did not visit Kevin and Tommy from approximately May 2014 until

December 2015. The record shows that during most of her dependency proceedings,

Sarah did not want to visit Richard. When she acknowledged visiting him, she told her

therapist her father was not in her life. Sarah remained traumatized by Richard's violence

toward her mother. She did not express any desire to live with Richard, even after her

visitation with him stabilized.

The record shows that the boys did not view Richard as their father. Kevin

insisted Richard was not his father. He called Richard, "Sarah's dad." He was happy

when their visits were cancelled. Kevin said, "I think I like it better if only Sarah and

Tommy visit Daddy." When asked who his father was, Tommy replied, "I don't have a

dad."

The record shows that Sarah's relationship with her father was conflicted at best,

and she did not view him as being a part of her life. Richard's relationships with Kevin

and Tommy were minimal, and the record clearly shows the boys did not view him as

their father. On this record, no reasonable attorney would conclude that Richard had a

beneficial parent/child relationship with Sarah, Kevin or Tommy in which the benefits of

continuing their attenuated relationship outweighed the benefits each child would gain

from adoption. (In re Michael G., supra, 203 Cal.App.4th at p. 595.)

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5. Conclusion

The juvenile court did not err in terminating parental rights. By the time of the

section 366.26 hearing, Sarah, Kevin and Tommy looked to their caregivers to fulfill their

emotional and primary needs. They had gained a family structure and a sense of safety

and security with their caregivers. The juvenile court did not abuse its discretion when it

determined the children would greatly benefit from the security of a stable, permanent

home with committed, capable adoptive parents. (§ 366.26, subd. (c)(1)(B)(i); Autumn

H., supra, 27 Cal.App.4th at p. 575.) Thus, the record supports the conclusion there was

not a "compelling reason for determining that termination would be detrimental" to the

children. (Bailey J., supra, 189 Cal.App.4th at p. 1315.)

II

PATERNITY STATUS AND VISITATION

A

The Parties' Contentions

Kevin and Tommy contend the juvenile court's orders granting Richard status as

their presumed father are not supported by the evidence. They contend there is no

showing Richard openly held the boys out as his own children, as required under Family

Code section 7611, subdivision (d). They further argue the juvenile court erred in

ordering visitation with Richard because the juvenile court did not consider their wishes

and visitation would be detrimental to them.

The Agency argues the issues have been rendered moot by the subsequent

termination of Richard's parental rights.

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 B

Mootness

An appeal becomes moot when, through no fault of the respondent, the occurrence

of an event renders it impossible for the appellate court to grant the appellant effective

relief. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) The reviewing court

determines on a case-by-case basis whether subsequent events in a dependency case have

rendered the appeal moot and whether its decision would affect the outcome of the case

in a subsequent proceeding. (Id. at p. 1055.) " 'However, a reviewing court may exercise

its inherent discretion to resolve an issue rendered moot by subsequent events if the

question to be decided is of continuing public importance and is a question capable of

repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether

subsequent events in a juvenile dependency matter make a case moot and whether our

decision would affect the outcome in a subsequent proceeding. [Citations.]' " (In re Anna

S. (2010) 180 Cal.App.4th 1489, 1498.)

The issues raised in Kevin and Tommy's appeal have been rendered moot by the

termination of Richard's parental rights. Nevertheless, we exercise our discretion to

address the question of ordering visitation on the eve of a section 366.26 hearing as a

matter of continuing public importance, capable of repetition yet evading review.

C

Visitation

The California dependency scheme directs the juvenile court to order visitation

between parent and child when placing a child in foster care and ordering reunification

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services. (§ 362.1, subd. (a).) Throughout the reunification period, "[v]isitation shall be

as frequent as possible, consistent with the well-being of the child." (Ibid.) If the

juvenile court terminates reunification services and sets a section 366.26 hearing, the

court shall continue to permit the parent to visit the child pending the hearing unless it

finds that visitation would be detrimental to the child. (§ 366.21, subd. (h).)

We review an order setting visitation for abuse of discretion. (In re Brittany C.

(2011) 191 Cal.App.4th 1343, 1356.) "While the abuse of discretion standard gives the

court substantial latitude, '[t]he scope of discretion always resides in the particular law

being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." '

[Citation.] 'Action that transgresses the confines of the applicable principles of law is

outside the scope of discretion and we call such action an "abuse" of discretion.'

[Citation.]" (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.)

The circumstances here do not fall neatly within the parameters of the statutory

scheme. The juvenile court did not order visitation between Richard and the boys during

the reunification period. The first social worker's decision to allow Richard to visit the

boys was made without judicial authorization. At the time the court terminated

reunification services and set a section 366.26 hearing, there was no existing visitation

order; therefore, the detriment standard for continuing visitation under section 366.21,

subdivision (h) did not apply. We have not located any case law addressing the standard

that applies when a parent who has had the opportunity to request visitation does not do

so until after reunification services have been terminated. Nevertheless, the record does

not support a grant of visitation to Richard under either standard.

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 We conclude that the juvenile court erred when it determined the parties opposing

visitation did not meet their burden to show visitation would be detrimental to Kevin and

Tommy. At the time of the hearing in December 2015, Kevin and Tommy had not

visited Richard since May 2014. The section 366.26 hearing was scheduled in three

weeks. The record does not indicate the boys asked to see Richard or were troubled by

the lack of visitation.

Detriment includes harm to the child's emotional well-being. (Brittany C., supra,

191 Cal.App.4th at p. 1357.) The social worker testified visitation could confuse Kevin

and Tommy, create internal conflicts, and impede their attachment to their new family.

Kevin was just starting to attach to his caregiver. Tommy had an attachment disorder and

his indiscriminate behaviors with people presented a safety risk to him. Tommy's

therapist said Tommy might not understand Richard's role in his life. Kevin's therapist

said it was preferable for young children to focus on one person or couple when forming

a new attachment. In view of the procedural posture of the case, the Agency and the boys

clearly established that visitation with Richard would be detrimental to them.

In ordering visitation, the juvenile court relied on the past visits the boys had with

Richard. The fact the boys had visits with Richard during a portion of the six-month

reunification period without any apparent detriment is not relevant to determining

whether reestablishing visitation would be detrimental in view of Kevin's and Tommy's

current needs and circumstances. We conclude that ordering visitation for the first time

on the eve of the section 366.26 hearing, with a person who had notice of the proceedings

and waited a year to come forward to request visits, was not consistent with the boys'

29
well-being and was therefore an abuse of the juvenile court's discretion. (See § 300.2

[notwithstanding any other provision of law, the purpose of dependency proceedings is to

ensure the safety, protection, and physical and emotional well-being of at-risk children].)

DISPOSITION

The findings and orders terminating parental rights are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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