Filed 3/16/16 In re Alex A. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ALEX A., a Person Coming Under the Juvenile Court Law. D068662 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518788) Plaintiff and Respondent,
v.
A. A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Tiffany Gilmartin for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy, and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
A. A. (the Father) appeals the termination of his parental rights to his son, Alex A.
He contends the court erred in finding Alex was likely to be adopted and the beneficial parent-child relationship did not apply. (See Welf. & Inst. Code,1 § 366.26,
subd. (c)(1)(B)(i).) The Father also maintains that the court erred in failing to grant a
continuance to allow the completion of an Interstate Compact on Placement of Children
(Fam. Code, § 7900 et seq.; ICPC) home study. In addition, the Father insists the
juvenile court erred in not giving Alex's relatives preferential consideration for placement
prior to placing Alex in a new foster home. We affirm.
FACTUAL AND PROCECEDURAL BACKGROUND
On September 19, 2013, the San Diego County Health and Human Services
Agency (Agency) filed a petition on behalf of one-month-old Alex. The petition alleged
the Mother left the child inadequately supervised, suffered from mild mental retardation,
and refused services to assist her in caring for the baby. Further, the Father was holding
the child during an altercation with relatives. Finally, the parents lacked adequate
housing and supplies for the infant and the infant was in need of the protection of the
juvenile court.
Several incidents occurred prior to the Agency filing a petition. On September 6,
the child abuse hotline received a referral alleging the Mother was a nonminor dependent,
in extended foster care, who suffered from developmental delays. The Mother was
required to live with a caregiver to assist her in caring for the newborn infant. However,
the Mother left the home with Alex and did not provide any means of contacting her.
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 Additionally, before she left, the Mother ran out of baby formula and had been feeding
Alex water.
As part of extended foster care, the Mother had been working with a social
worker, a parent partner, and a therapist. The service providers reported concern with
respect to the Mother's capacity to understand Alex's needs and to provide for those needs
without direct supervision. Further, there were concerns about the Father's mental health
and possible physically abusive relationship with the Mother. The Father had a history of
aggression and poor impulse control.
The investigating social worker interviewed the Mother on September 17, 2013, at
the home of a paternal aunt. The Mother indicated she left the approved caregiver's home
because the caregiver got on her nerves and the Father argued with the caregiver. During
the argument, the Father grabbed the Mother's fingers, but did not injure her. The Mother
had only minimal provisions for Alex's care at the time of her interview with the social
worker. During the worker's conversation with the Mother, the paternal aunt, with whom
the parents were living, walked by. The aunt appeared to be under the influence of
alcohol or drugs because her speech was slurred, her eyes were glassy, and her hands
were shaking. The social worker believed the aunt's home would not be a safe place for
Alex to stay for many reasons, which included the fact that the aunt had a child protective
services history.
The Mother had been dating the Father for about two years. She denied any
domestic violence, but indicated the Father called her derogatory names. On the date the
couple left the home of the approved caregiver, the Father became angry and picked up a
3 brick while holding Alex. The Mother planned to remain in a relationship with the Father
and get an apartment with him.
The social worker interviewed the Father on September 18, 2013. The Father
acknowledged becoming angry on September 7, 2013, and picking up a brick while
holding Alex because he felt threatened. He later put the brick down.
The Father reported he had been abused as a child and explained this caused him
to become very angry at times. He sometimes had flashbacks of the abuse. The Father
denied drug use at the time of his interview, but indicated he had a drug history and
completed a treatment program in 2011. He previously used marijuana, heroin,
methamphetamine, and ecstasy.
At the detention hearing on September 20, 2013, the parents were present and the
court appointed counsel to represent them. It found the Father to be Alex's presumed
father. The court ordered an out-of-home detention and directed that the parents'
visitation be supervised and separate.
The Agency held a team decision meeting (TDM) on September 26, 2013, to
discuss issues and gather information about potential relatives to care for Alex. The
Mother reported she wanted Alex to remain in foster care until she was ready to reunify
with him. The Father did not attend the TDM and had not identified any relatives to
evaluate for a possible placement for Alex. In addition, the Father tested positive for
marijuana on September 18, 2013.
On November 7, 2013, the court sustained the Agency's petition, finding the
allegations to be true by clear and convincing evidence. The Agency indicated it was in
4 the process of completing a relative home evaluation and requested a continuance, which
the court granted.
On November 19, the court declared Alex a dependent, removed him from
parental custody, and ordered reunification services be provided. It also ordered that
Alex be placed in a licensed foster home.
The Agency's six-month review report dated May 14, 2014, recommended
termination of reunification services and the setting of a section 366.26 hearing.
Supporting the Agency's termination recommendation, the Mother's extended foster care
services were terminated due to lack of compliance in February 2014. In April, the
Mother reported being approximately four months pregnant with her second child with
the Father. Additionally, the Father had not maintained consistent contact with the
Agency.
The parents had separate supervised visits with Alex, offered on a weekly basis.
However, the social worker opined it was not likely either parent would be able to reunify
with Alex in the next six months. With regard to the Father, the social worker explained:
"In regards to the father, the father has not made himself available to the Agency. The original concerns of domestic violence, substance abuse, and lack of parent education continue to present themselves as issues that need to be addressed because the father has not provided any information to the Agency and has not made himself available. The Agency has learned from the caregiver that the father had made consistent effort in contacting her regarding visits, but it is clear the father does not share the same interest in his reunification efforts despite the undersigned worker's attempts to ask the father to contact him consistently."
5 The Agency's addendum report dated July 18, 2014, confirmed the prior
recommendation to terminate services for the Father, but asked that services to the
Mother be extended for another six months. The Mother was making progress, but
needed additional services to continue to address the protective issues.
At the six-month review hearing on July 18, 2014, the juvenile court found a
return of Alex to parental custody would be detrimental and the services provided had
been reasonable. It ordered another six months of reunification services for both parents
and scheduled a 12-month review hearing. The court continued Alex's placement in
licensed foster home care.
The Agency's 12-month status review report dated November 18, 2014,
recommended a hearing be set to select and implement a permanent plan. The social
worker noted the Mother gave birth to a baby girl, Izzy, on July 10, 2014. The Mother
was participating in voluntary services for this child. The Mother indicated she had little
contact with the Father, and he provided no financial support for Izzy. Similarly, the
Father had been in minimal contact with the social worker with regard to Alex.
The Father did not attend the TDM on July 31, 2014, but he had been visiting Alex
weekly at the family visitation center. The Father had been appropriate during visits by
showing empathy '"some of the time'" and demonstrating a parental role. Nevertheless,
the Father had not made any effort to engage in services designed to address the
protective issues.
In August 2014, a physician at Rady Children's Hospital reported Alex had an
obstruction in the right kidney. Alex underwent a medical procedure, spent the night in
6 the hospital, and was released the next day. During a developmental screening, delays
were identified in Alex's communication, and he was referred to appropriate services.
At this time, Alex was strongly attached to his foster mother. He smiled a lot and
appeared happy most of the time. Alex's foster mother indicated Alex was her ninth
foster baby and described him as the easiest baby she had cared for. She had three
biological children and was not able to adopt Alex.
Alex was scheduled to undergo surgery in November 2014 to correct the ureter's
connection to the kidney. Alex wore an eye patch two hours a day due to exotropia of his
right eye. He also was diagnosed with mastocytosis, a mast cell disease. The disorder
caused cells to grow abnormally when exposed to an irritant. For Alex, the primary
trigger was water. Therefore, he bathed only twice a week.
In January 2015, the Father indicated he wanted to attend outpatient substance
abuse treatment so he could get the help he needed. The Father attended the orientation
appointment, but did not follow through with the program. Similarly, the Father failed to
follow up on the referrals for domestic violence treatment that the social worker gave
him.
On January 2, 2015, Alex underwent a medical procedure to remove the stent
implanted in his kidney during the November 5, 2014 surgery to remove an obstruction in
his kidney and bladder. The stent caused Alex a lot of discomfort, and he appeared less
fussy and much happier after it was removed. Alex was eating and sleeping well.
The Agency began to transition Alex to a new foster home in January 2015. On
January 12, 2015, Alex was introduced to his current foster parents, Christopher and
7 Heather W. Christopher and Heather indicated they had experience handling medical
issues similar to the ones Alex had, and they shared how they were dealing with those
issues with another child in their care. Christopher and Heather reported they were
interested in adopting Alex if he was placed with them.
After a series of visits, including overnight stays, Alex was moved to the new
foster home on January 30, 2015. Heather told the social worker she and her husband
wanted to adopt, explaining they loved Alex and he bonded with them immediately.
While the transition to this home was in process, the Father contacted the social worker
on January 28 to report his mother and sister were interested in placement. When asked
why he did not mention their interest sooner, the Father replied that they had just moved
and did not know they could take Alex. The Father also indicated he did not know if his
mother and sister had ever met Alex.
Paternal aunt V.R. called the social worker and stated she was interested in
placement to prevent Alex from being adopted. V.R. reported she lived in Texas and had
met Alex when he was an infant. She added, " 'He's family and I would adopt if we had
to.' " The paternal grandmother called and told the social worker she would support
placement of Alex with V.R. The grandmother was moving to live near V.R. and also
was interested in having Alex placed in her care. The social worker indicated he would
be submitting ICPC home study requests on the out-of-state relatives.
The court held the contested 18-month permanency hearing on March 19, 2015. It
found the services provided had been reasonable and a return of Alex to parental custody
8 would be detrimental. The court terminated court-mandated reunification services and
scheduled a section 366.26 hearing.
During this period, Alex was attending preschool and the school had not reported
any issues or concerns. Alex was not on medication or in therapy. He participated in in-
home child enrichment services.
The Mother indicated she no longer wanted to visit Alex and wanted him adopted.
The Father had been visiting Alex consistently. At the outset of the case, the Father
appeared unable to understand how to console Alex when he was upset. However, the
Father became more comfortable with Alex as the child became more mobile. After Alex
was moved, the visitation request for the family visitation center was cancelled due to the
Father's lack of transportation and inability to commute from Chula Vista to north San
Diego County on a weekly basis.
On May 8, 2015, the Father had a two-hour visit at the Agency's Chula Vista
office with Alex. The Father arrived first and was happy to see Alex when he entered the
room. The Father tried to interact by showing the child photos on his cell phone and other
actions, but Alex would not engage with him. Later Alex began playing with a toy train
and the Father joined in the play. The Father indicated he was worried Alex would no
longer remember him because they had not seen each other for three months. The Father
was attentive and patient with Alex, and Alex allowed him to feed him some grapes. The
visit ended without incident.
The Father visited Alex again on May 19, 2015. It took Alex a few minutes to
warm up. The Father was patient, but continued to make efforts to engage Alex in a
9 gentle manner. He later read him a book and accompanied him playing with toys. The
Father took a snack, which was packed by the caregiver, from the diaper bag and gave it
to Alex. The Father was a little nervous at times and had to be instructed how to change
Alex's diaper.
At a visit on June 9, 2015, the Father was able to change Alex's diaper without
prompting or advice. At this visit, the Father's hand was completely swollen. The Father
indicated he had fallen on some rocks the night before and that he had been out late. He
admitted having a few drinks but reported he was not drunk because he was able to
remember the entire evening.
The Father visited with Alex on July 2. The Father greeted Alex with a hug and
offered him a snack from the diaper bag. The Father did not bring any snacks of his own
to the visit. The Father played race cars with Alex and had to redirect the child a few
times since he kept putting things in his mouth.
For the visit on July 28, 2015, the Father arrived 30 minutes late and brought
along his 18-year-old sister, E.A. E.A. stated she had not seen Alex since he was two
months old. The Father fed Alex a snack from the diaper bag. The Father and E.A.
played blocks with Alex. The Father reported his sister in Texas completed her
fingerprinting and background check for the home study, but the social services agency
was waiting on the paternal grandmother to do her fingerprinting.
At this time, the grandmother was visiting San Diego and intended to go back to
Texas in the near future. The Father reported he had gotten into a fight with the
10 grandmother because she was dating an old boyfriend that he did not approve of. The
Father also stated the grandmother would not be visiting Alex while she was in town.
In a section 366.26 report, the social worker recommended adoption as the best
permanent plan. The Father acknowledged he was not in a position to care for Alex.
Meanwhile, the child's foster parents were committed to offering the child a permanent
home through adoption. If, however, they were unable to adopt for any reason, the
Agency had 37 approved adoptive families desirous of adopting a childlike Alex. The
Father indicated he would like his sister to adopt Alex. The ICPC home study on the
paternal aunt was submitted on June 2, 2015, and was in process. The aunt saw Alex one
time before the dependency proceeding began but had not seen him for approximately
two years. Thus, the child had no relationship with her.
The social worker opined it would not be detrimental to Alex to terminate parental
rights. The Mother stopped visiting Alex and the Father's relationship was not so strong
as to outweigh the benefits of adoption. The social worker further explained in pertinent
part:
"During the course of the visits that were supervised by this Social Worker, it was observed that the visits with the father are often pleasant. Alex acknowledges the prospective caregivers as his parents by referring to them as 'mama' and 'papa'. Alex does not acknowledge his birth parents as his parents. Alex has displayed no signs of emotional stress in separating from the father at the end of each visit. Alex enjoys playing with the father on his visits and it's clear to see that a relationship is starting to form. Alex does not have a significant bond with the father although the father is now visiting on a regular basis. Alex does not appear to have a father-son relationship with his father but a relationship that would be similar to one that a child would have with an extended family member whom he enjoy[ed] seeing and playing with."
11 The social worker noted Alex was in need of permanency and stability. She asked
the juvenile court to terminate parental rights.
The matter came before the court for a section 366.26 hearing on July 15, 2015.
The Father was present and the case was set for trial. The court continued the case on the
contested hearing calendar.
The court held the contested section 366.26 hearing on August 12, 2015. The
Father requested a continuance, which the court denied. It received into evidence the
Agency's section 366.26 report dated July 15, 2015, an addendum report dated
August 12, 2015, and the court-appointed special advocate report dated July 15, 2015. It
took judicial notice of the prior findings and orders. After considering the evidence
presented and hearing argument of counsel, the court found by clear and convincing
evidence Alex was likely to be adopted and none of the statutory exceptions applied. It
terminated parental rights and referred the child to the Agency for adoptive placement.
The Father timely appealed.
DISCUSSION
I
THE FATHER'S REQUEST FOR A CONTINUANCE
A. The Father's Contention
The Father contends the court erred in failing to grant a continuance to allow the
completion of the ICPC home study. We disagree.
12 B. Background
On the day of the section 366.26 contested hearing, the Father's attorney made an
oral motion for a continuance. She maintained that the Father intended to file a section
388 motion for relative placement for Alex, but could not do so because the Agency had
not finished the ICPC home study for the Father's relatives in Texas. In response, the
Agency's counsel did not object to the continuance, but represented to the court that the
Agency had received a "verbal decision back from Texas and ICPC" the "home
evaluation for the aunt ha[d] been denied based on her and people in the home not
completing the [background] checks." The counsel noted that any continuance would not
need to be long.
The court denied the request for a continuance, explaining:
"Number one, relative placement, the preference is very weak at this point in time. [¶] Secondly, there's not going to be any change in placement from what I can tell. The Father's not prejudiced. He could have filed his 388 earlier. [¶] With regard to the I.C.P.C., we have very little control how quickly states do it. I mean, when we deal with Mexico with D.I.F., sometimes you can for wait a year on that. It depends on relatives coming forward timely, and I just don't believe there's good [cause for a] continuance. The preference to get finalization to these cases outweighs the Father's right to file an 11th hour 388 requesting for relative placement. [¶] If in fact the home was even approved, we're at a situation where if the child is in a stable home right now, the relative placement wouldn't necessarily overcome that. So based on that, I'm going to deny the request for continuance."
C. Analysis
A continuance shall be granted only on a showing of good cause and shall not be
granted if it is contrary to the minor's best interests. (§ 352, subd. (a).) In considering a
13 request for a continuance, the court must "give substantial weight to a minor's need for
prompt resolution of his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements." (Ibid.)
We reverse an order denying a continuance only on a showing of abuse of discretion. (In
re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Here, we are satisfied the court did not abuse its discretion in finding that good
cause did not exist for a continuance. The Father's attorney argued a continuance was
necessary because the Father needed the results of the ICPC home study before he filed a
section 388 motion. On appeal, the Father insists that the Agency is to blame for his
delay because it did not timely process the ICPC. The record is unclear on this point.
When the court held the 18-month permanency review hearing on March 19, 2015,
the Agency's counsel indicated the social worker did plan to pursue the ICPC home study
on the relatives in Texas. The record does not disclose the reason for the delay and why
the home evaluation was not submitted until June 2, 2015. It is unclear whether the
social workers failed to perform their job duties, as suggested by the Father, or whether
the relatives in Texas were undecided as to whether or not they wanted to be considered
for adoptive placement. However, there is some indication in the record that the
grandmother, who lived with the Father's aunt, had not completed her part of the home
study requirements. And the Agency's counsel represented to the court that the home
evaluation had been denied.
In addition, we agree with the court that the Father could have filed a section 388
motion earlier. In doing so, he could have explained that the ICPC home study had been
14 delayed and possibly could have gotten the process moved along more quickly or
established a better record regarding who was to blame for the delay. Nevertheless, the
Father did not do so, but instead waited until the day of the contested section 366.26
hearing to request a continuance so he could file his motion. The Father's efforts were
too little and too late.
Finally, the court was correct in its conclusion that any preference for placement
with the relatives was weak. At the time of the hearing, Alex's foster parents were
willing to adopt him, and he had been living with them for over six months. In contrast,
the relatives appeared reluctant to adopt as indicated by the statement they would adopt
Alex if they had to.
For these reasons, we find no abuse of discretion on the record before us.
1. Failure to Place Alex With a Relative
In connection with his claim that the court erred by denying his request for a
continuance, the Father also contends that the Agency's failure to timely complete the
ICPC home study caused the juvenile court to err when it did not give preferential
consideration of placing Alex with a relative in violation of section 361.3. We find no
merit to this contention.
Section 361.3 gives "preferential consideration" to placement requests by certain
relatives upon the child's removal from the parents' physical custody at the dispositional
hearing.2 (§ 361.3, subds. (a), (c); In re Lauren R. (2007) 148 Cal.App.4th 841, 854.)
2 " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) 15 Before placing a child with a relative, the Agency must complete a child abuse central
index check of the relative. (§§ 361.4, subd. (c), 309, subd. (d)(1); In re S.W. (2005) 131
Cal.App.4th 838, 846.)
On November 19, 2013, the juvenile court ordered Alex removed from his parent's
custody. The Father does not point to anywhere in the record indicating that any of
Alex's relatives were willing to take Alex at that time.
Instead, the Father emphasizes that the Agency transferred Alex from one set of
foster parents (after a 15-month stay) to a new set of foster parents, but before Alex was
placed in this new foster home, paternal aunt V.R. indicated a willingness for placement
of Alex with her. The Father's argument discounts the timing of V.R.'s offer.
After a 15-month stay with foster parents who were unwilling to adopt Alex, the
Agency introduced Alex to Christopher and Heather on January 12, 2015. At that time,
Christopher and Heather indicated their intention to adopt Alex if he was placed with
them. Alex moved in with Christopher and Heather on January 30, 2015.
Two days before Alex moved in with his new foster parents, V.R. contacted the
social worker and indicated she was interested in placement of Alex to prevent him from
being adopted. V.R. lived in Texas and wanted the placement there. She told the social
worker she "would adopt if [she] had to." The next day, the paternal grandmother called
the social worker and stated she would support placement with V.R. and that she would
also seek placement of Alex as she was moving to Texas with or near V.R.
Here, there was no violation of section 361.3. V.R. only informed the social
worker that she would take Alex two days prior to placement of Alex with his new foster
16 parents. Further, the Agency has already begun the process of moving Alex to his new
foster parents more than two weeks before V.R. contacted the social worker. There was
no time to complete a child abuse central index check in the two-day period between
V.R. stating she was interested in taking Alex and placement of Alex with his new foster
parents. The lack of time was not caused by any fault of the Agency, but instead, because
V.R. and the paternal grandmother waited too long to offer a possible relative placement
for Alex.
II
ADOPTIBILITY
Next, the Father maintains the court's finding that Alex is adoptable is not
supported by substantial evidence. We disagree.
B. Analysis
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor,
e.g., whether the minor's age, physical condition, and emotional state make it difficult to
find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642,
1649, italics omitted.) While psychological, behavioral, medical, and possible
developmental problems may make it more difficult to find adoptive homes, they do not
necessarily preclude an adoptability finding. (In re Helen W. (2007) 150 Cal.App.4th 71,
79; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Jennilee T. (1992)
3 Cal.App.4th 212, 224-225.) An adoptability finding requires "a low threshold: The
court must merely determine that it is 'likely' that the child will be adopted within a
17 reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292; accord In re Zeth S.
(2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) The
possibility a child may have future problems does not mean the child is not likely to be
adopted. (In re Jennilee T., supra, at pp. 223-225.)
The likelihood of adoptability may be satisfied by a showing the minor is
generally adoptable, that is, independent of whether the minor is in a prospective
adoptive home (§ 366.26, subd. (c)(1)), or has a prospective adoptive parent " 'waiting in
the wings.' " (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; In re A.A. (2008) 167
Cal.App.4th 1292, 1313.)
We review a court's finding that a minor is adoptable for substantial evidence. (In
re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B., supra, 79 Cal.App.4th at
p. 1154.) If, on the entire record, there is substantial evidence to support the findings of
the juvenile court, we uphold those findings. We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or reweigh the evidence. Instead,
we view the record favorably to the juvenile court's order and affirm the order even if
there is substantial evidence supporting a contrary finding. (In re Casey D. (1999) 70
Cal.App.4th 38, 52-53.) Although the Agency bore the burden of proof on this issue at
the section 366.26 hearing (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-
1561), the Father has the burden of showing there is no evidence of a sufficiently
substantial nature to support the finding or order (In re L.Y.L. (2002) 101 Cal.App.4th
942, 947).
18 Here, the Father argues that Alex is not adoptable because he has serious medical
problems. Further, he contends that Alex's current foster family has not had sufficient
time to consider "the magnitude of adopting a child who has a complicated medical
history, noted developmental delays, and on-going diseases that make simple tasks, such
as hygiene, impossible." The Father's contentions, however, ignore the substantial
evidence supporting the juvenile court's conclusion that Alex is generally adoptable as
well as the fact that Alex's current foster parents are willing to adopt Alex now.
A child is generally adoptable when his or her personal characteristics are
sufficiently appealing to make it likely that an adoptive family will be located in a
reasonable time, regardless of whether a prospective adoptive family has been found.
(See In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) A child's relative youth, his or
her good physical and emotional health, the minor's intellectual capacity and his or her
ability to develop interpersonal relationships all indicate that the child is adoptable. (In
re Gregory A., supra, 126 Cal.App.4th at p. 1562.)
The possibility that a child may have future problems does not preclude a finding
that he or she is likely to be adopted. Even a minor exposed to substances in utero and
suffering speech delays may be found generally adoptable. (In re R.C. (2008) 169
Cal.App.4th 486, 492.) Young children may be generally adoptable despite evidence of
physical and developmental conditions, significant delays, and speech issues. These
conditions require time to determine the full severity of the issues the minor will face.
The certainty of a child's future medical condition is not required before a court can find
19 that the minor is generally adoptable. (See In re Helen W., supra, 150 Cal.App.4th at
p. 79.)
Alex has health concerns. He had surgery to remove an obstruction in his kidney.
He was diagnosed with extropia of the right eye in June 2014 and must wear an eye patch
for two hours a day. Alex suffers from a mast cell disorder (mastocytosis) that causes
mast cells to grow when he exposed to a primary irritant. For Alex, water is an irritant so
he cannot be bathed regularly. Also, Alex has some "social-emotional" development
issues.
Despite these concerns, the record contains substantial evidence of Alex's
respective appealing characteristics. The social worker described Alex as "a joyful" child
who "enjoys playing with his toys and looking at books." She noted he is
"developmentally on target" and is "energetic, funny, and kind." The social worker
further explained that Alex has a "healthy curiosity" and is "affectionate and playful with
those he is familiar with."
Additionally, Alex was in a prospective adoptive home at the time of the section
366.26 hearing, and the caregivers were committed to adoption. If the current caregivers
are not able to adopt Alex, there are 37 approved adoptive homes for Alex in San Diego
county.
Accordingly, construing the record in the light most favorable to the order, we
conclude substantial evidence supports the adoptability finding. (In re Josue G., supra,
106 Cal.App.4th at p. 732; In re J.I. (2003) 108 Cal.App.4th 903, 911.)
20 III
THE BENEFICIAL PARENT-CHILD EXCEPTION
A. The Father's Contentions
Finally, the Father argues substantial evidence did not support the court's finding
that the beneficial relationship exception did not apply to the Father's relationship with
Alex.
Section 366.26, subdivision (c)(1) allows termination of parental rights upon clear
and convincing evidence of adoptability. An exception exists if "[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).) A beneficial relationship is
one that "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.) The existence of this relationship is
determined by "[t]he age of the child, the portion of the child's life spent in the parent's
custody, the 'positive' or 'negative' effect of interaction between parent and child, and the
child's particular needs . . . ." (Id. at p. 576.) The Father has the burden to prove the facts
supporting applicability of this exception to adoption. (In re Scott B. (2010) 188
Cal.App.4th 452, 469.)
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
21 be detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) Here,
examining the evidence in the light most favorable to the order, we conclude that the
Father failed to meet his burden of showing a beneficial relationship. (In re Autumn H.,
supra, at p. 576.)
If the court determines a child is adoptable (as Alex 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). (In re S.B. (2008) 164
Cal.App.4th 289, 297.) The Father asserts he meets the first prong of the parental benefit
exception because he maintained regular visitation and contact with Alex within the
meaning of section 366.26 subdivision (c)(1)(B)(i). The Agency admits that the social
worker characterized the Father's visits as consistent prior to the section 366.26 hearing
in August 2015. However, the Agency notes that during the spring of 2015, the Father's
contact with Alex had not been regular as he went three months without visiting him.
Yet, we need not resolve this apparent dispute because we agree with the superior court
that the Father has not established that he had a parent-child relationship with Alex.
The issue here is not whether there was a bond between the Father and Alex. The
question is whether that relationship remained so significant and compelling in Alex's life
that the benefit of preserving it outweighed the stability and benefits of adoption. The
" 'benefit' " necessary to trigger this exception requires that " '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
22 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.
(2014) 226 Cal.App.4th 503, 528–529, quoting In re Autumn H., supra, 27 Cal.App.4th
567, 575.) As described in Autumn H., the beneficial relationship must be examined on a
case-by-case basis, taking into account the many variables that can affect the parent-child
relationship. (Id. at pp. 575–576; In re J.C., supra, at p. 532.)
The Father argues that he has demonstrated a parental relationship with Alex. To
this end, he points out that, during visits, he brought Alex snacks and learned to respond
to Alex's cues. Additionally, Alex hugged him at the end of visits. We agree that the
Father has made progress in becoming more comfortable with Alex, and in turn, Alex has
become more comfortable with the Father. That said, sufficient evidence supports the
court's finding that the Father's relationship with Alex does not promote the well-being of
the child to such a degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at
p. 575.)
For example, the social worker noted that Alex calls his caregivers "mama" and
"papa" and does not acknowledge the Father as a parent. Alex displays no signs of
emotional distress in separating from the Father at the end of each visit. Although Alex
enjoys playing with the Father and a relationship is starting to form, there is nothing in
the record that supports the conclusion that Alex has a significant bond with the Father.
23 As the social worker observed, "Alex does not appear to have a father-son relationship
with his father but a relationship that would be similar to one that a child would have
with an extended family member." Further, the Father indicated that he cannot care for
Alex. And the Agency documented its concern that "issues of domestic violence and
drugs and alcohol abuse would continue to exist in the father's livelihood, and Alex
would be at a risk of serious emotional trauma, illness, physical injury, or even death
should he be exposed to them." The Agency also noted its "ongoing concerns regarding
the [Father's] lack of parenting skills, the lack of ability to put Alex's needs before [his]
own, and the ability to provide a safe and stable environment for Alex."
In conclusion, we agree with the juvenile court that the Father did not carry his
burden in proving the beneficial parent-child exception applied.
DISPOSITION
The order is confirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.