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In Re S.Z., A Person Coming Under the Juvenile Court Law. v. D.Z


December 29, 2010


Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super. Ct. No. DP011858)

The opinion of the court was delivered by: Aronson, J.

In re S.Z. CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



D.Z. (father) appeals from the juvenile court's order terminating his parental rights to his now five-year-old son, S.Z. (See Welf. & Inst. Code, § 366.26; all further undesignated statutory references are to this Code.) Father asserts the juvenile court erred by (1) denying his modification petition (§ 388) seeking reunification services a year after S.Z. had been detained, (2) by finding S.Z. was likely to be adopted (§ 366.26, subd. (c)(1)), and (3) by not applying the benefit exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. As we explain, father's contentions lack merit, and we therefore affirm the juvenile court's order.



By age four, S.Z. had been a juvenile court dependent three times. He was detained at birth in 2005 when his mother, R.D. (mother), tested positive for methamphetamine. Within a year, by June 2006, father and mother successfully reunified with S.Z. and mother's four-year-old son, D.D. Four months later, however, Orange County Social Services Agency (SSA) detained the children again.

The juvenile court sustained a new dependency petition based on its finding that father committed domestic violence against mother in front of the children and based also on mother's unresolved substance abuse, the parents' drug-related criminal history, and father's failure to protect the children from mother's methamphetamine and marijuana abuse. In a parallel proceeding, the family law court granted mother's restraining order against father, and required him to complete batterer and drug testing programs, both of which included substance abuse treatment components.

Father's admitted history with drugs began at age 13 with marijuana use "just a couple times." At age 19, he turned to methamphetamine; he later minimized his use as "[n]ot often at first," but he soon drew the attention of law enforcement, resulting in an arrest and participation in a treatment program through Penal Code section 1000's diversion program. He nevertheless continued to use methamphetamine regularly, indeed he admitted daily abuse for at least a year, and he also sold methamphetamine, resulting in further charges in 2002 and a nine-month court-ordered treatment program. Subsequently, after father completed the additional testing and treatment measures the family court ordered in 2006 or 2007, the juvenile court returned S.Z. to father's custody and closed the second dependency case in December 2007.

But within three weeks, SSA investigated a child abuse report that father had neglected two-year-old S.Z. by leaving him unsupervised in an alley on at least 15 to 20 occasions for 20 to 40 minutes at a time. The record does not disclose what father was doing when he left S.Z. in the alley. Father denied the allegation, initially accepted voluntary services, but later declined them. SSA eventually closed the case without detaining S.Z.

Father began using heroin. As before, he minimized his drug use, explaining it was "only like once in a while" initially, and he seemed to blame his new habit on a romantic partner, noting his girlfriend introduced him to the drug. By the time SSA detained S.Z. in the present proceedings in July 2009, father was injecting himself twice daily with heroin while he cared for S.Z.

Based on an anonymous tip, an SSA social worker and Westminster police responded to a motel room and found father about to inject himself with heroin while S.Z. slept on a bed about 10 feet away. An ambulance transported father to a hospital when he began exhibiting symptoms of heroin withdrawal. The social worker found a "'rig,'" a syringe filled with heroin, in the motel bathroom. Father claimed he kept the rig and drug paraphernalia, including a shoe lace he used as a tourniquet and a bag of new and used needles, out of S.Z.'s reach on a metal rack. He claimed he did not use heroin in S.Z.'s presence, but instead sent him away to his paternal grandmother's or elsewhere, or waited until S.Z. fell asleep. He claimed he was weaning himself off heroin by injecting himself with $10 doses once in the morning and once at night. He admitted to the social worker that he had been using heroin everyday for the last two years.

Father pleaded no contest to the dependency petition, including the allegation he used heroin and other illegal substances "[o]n numerous, unspecified occasions, for the past two years . . . while being the sole and primary caretaker for the children," D.D. and S.Z. The juvenile court sustained the petition and, at the disposition hearing, rejected reunification services for father. (See § 361.5, subd. (b)(13) [history of drug abuse and failure at court-ordered drug treatment may preclude reunification services].) We denied father's writ petition challenging the denial of reunification services. (D.Z. v. Superior Court (Dec. 14, 2009, G042573) [nonpub. opn.].)

Meanwhile, four-year-old S.Z. and seven-year-old D.D. had experienced several months of placement upheaval. A brief initial stint at an interim foster location gave way to a placement with a foster care family, where D.D. and S.Z. exhibited "challenging" behaviors. According to mother, who maintained contact through visitation, the children were "anxious as to what's going to happen to them, who they are going to be with and when/if they can see parents and relatives." The foster mother soon returned the children to SSA for a new placement because of their aggressive conduct. D.D., for instance, pulled a little girl on top of him, reached up her skirt and tried to put the girl's hand over his shorts in his groin area. S.Z. began to "mirror[]" D.D.'s bullying behavior, on one occasion pushing a one-year-old down and laughing as the child cried.

SSA arranged therapy for the boys and placed them in a group home where their aggressive behavior waned. S.Z.'s tantrums sometimes lasted longer than two hours at a time, but he did not act out against his peers or adults. The home, unfortunately, soon closed for their age group, so S.Z. and D.D. waited for their next placement at Orangewood Children's Home (OCH). There, it appears some aggressive sibling behavior resurfaced, with S.Z. mimicking D.D.'s conduct. SSA placed both of them briefly with a maternal second cousin, but the placement lasted less than 10 days, during which, particularly in times of transition such as bedtime, S.Z. displayed "very high energy and temper tantrums" that often escalated into aggression against himself and others. He kicked, punched, and tore down curtains in the house, also punching himself and destroying toys and objects. D.D., also aggressive and acting out, "would often say things like 'I'm going to kill you' and then follow it with 'just kidding.'" The duo threw things at their cousin and her family members, hurting her daughter in an unspecified manner in one incident.

The pair returned to OCH, where S.Z.'s moodiness and tantrums continued to last one to two hours at first, particularly during transition periods, but he began to respond better to redirection, which reduced the outbursts to a matter of minutes. Echoing D.D.'s earlier threats, however, S.Z. told Orangewood staff he would "shoot and kill them." SSA reported that D.D. sabotaged another potential placement with a facility designed for siblings when, during an initial interview, he acted in an aggressive manner, broke a toy, and started to pull down his pants.

According to an SSA report, the one positive constant for S.Z. and D.D. had been their "family," specified as the paternal grandmother and the maternal great grandmother, L.D., "who frequently visit[ed] the children" and coordinated schedules and support for the boys. SSA noted L.D., in particular, "remained [a] constant in the children's lives, as she has been their primary caregiver for much of their short lives, maintained consistent visitation with them during this recent detention, and the children appear to respond positively to her care, love and direction." L.D. had custody of both boys for four months during their first dependency, and for 11 months the second time. S.Z. wanted to live with L.D., whom he called "Nanny Rena." According to SSA, 76-year-old L.D. had declined custody at the outset of the current dependency because she questioned her ability to care for them full-time, but she stepped forward again and took the boys in late November 2009. She had an adult son at home to assist her, plus supportive friends in the community who could provide aid when needed. After almost five months in transition, the boys settled down and their behavior improved dramatically upon placement with L.D.

To afford SSA further time to locate a prospective adoptive family, the parties stipulated to continuing the permanency planning hearing (.26 hearing) scheduled for December 2009. SSA considered the boys "probable for adoption," but obstacles included "their membership in a sibling group, emotional health and challenging behaviors that have been unmanageable by previous caregivers." Apart from that conduct, the boys were adoptable based on their age, good physical and developmental health, and positive characteristics. S.Z., in particular, proved to be "clearly a favorite with OCH staff," according to SSA notes. He was "playful, verbal and affectionate. He asks 'why' many times as he is curious and inquisitive. He smiles, uses imaginary play and is a friendly child. [S.Z.] is able to engage, interact and is a social child when receiving one-on-one attention" and he "give[s] affection freely and spontaneously." Although not yet enrolled in preschool, he could "count to four without assistance, identify colors correctly, and attempts to write an S for his name, though the letter is often written backwards."

Both boys stabilized in L.D.'s care and, by February 2010, SSA found two prospective adoptive families who, though informed of the boys' behavioral history, wanted to proceed to home studies. One of the families included a maternal great uncle and aunt, Don and Julia, who lived near Sacramento. They had spent time with the boys at L.D.'s and knew of their circumstances and needs. The boys had known them from birth, liked them and responded well to discipline and redirection from each, especially Don as a male authority figure. Don was retired and stayed home to care for a 14-year-old grandson who lived with them. SSA's home study proved satisfactory. During two visits to Orange County to see S.Z. and D.D., Don and Julia took the children to school, attended therapy sessions with them, and provided discipline when needed. After they returned home, they called every other day at first and then daily at S.Z.'s request.

The boys soon regarded Don and Julia as "'family,'"and by May S.Z. grew excited about a possible placement with them, mentioning their pool and dogs and that he would live there "'forever.'" To avoid disrupting school placements, however, SSA postponed any move until June. S.Z. met preschool learning targets and age-level developmental milestones and was a responsive, engaging, and affectionate child. Areas for improvement included impulse control and conflict negotiation. His tantrums had diminished and his "most difficult struggle," according to SSA notes, was now sibling rivalry, "as he will often act out if his brother receives adult attention that he isn't receiving." He continued with therapy and his counselor observed he was a verbally engaging child who, especially one-on-one, showed compliance and "doesn't engage in much defiance." She concluded "he needs to learn to play" and "how [to] be a kid as he demonstrates pseudo maturity in lots of ways."

Don and Julia supported continued therapy for S.Z. to smooth the transition to their home and to address any issues that arose. They understood parenting the boys would involve a lot of work, but were committed to "solutions" and determined no "breaking point" would lead them to return the boys for, as Julia observed, no one had asked them such a question about their biological children. Nevertheless, they recognized a birthparent's important role and agreed to continued contact with father consistent with the children's best interests, provided he maintained a sober and drug-free lifestyle. Nanny Rena supported placing S.Z. and D.D. with Don and Julia for adoption. She would accompany the boys on the drive to Placer County, stay with them in their new home a few days, and then taper off contact by staying with a nearby relative for a couple of weeks.

S.Z. continued to say he would live with L.D. if given the choice to live anywhere, but by June he was greeting the social worker with the question, "'[W]hen are you going to take me to Aunt Julia's'" so he could live there "forever." He wanted his mother to visit, but did not mention father. The therapist reported S.Z. did not state he wanted to live with father, but rather expressed he was sad and disappointed by him. His stronger attachment was to L.D., from whom he was willing to separate.

The boys moved to Don and Julia's on June 30, 2009. SSA's follow-up report showed they transitioned well and were "'doing great.'" Julia reported that on the drive up S.Z. referred to mother and father as his "'second mommy and daddy,'" noting somewhat obscurely, "'but they arrested me.'" When Julia assured S.Z. he had not been arrested, he stated, "'[M]y dad did some really bad things'" and clarified that "'they arrested him.'" (Italics added.)

Meanwhile, father had made laudable progress in confronting his drug addiction. Released from jail in early September 2009, he enrolled in a week-long heroin detoxification program on September 30th. He admitted he used heroin on the two consecutive days just before he began the program. By the end of October, he enrolled in a three-month residential treatment program and expressed a commitment to drug-free living. Before entering the program, he had three monitored, hour-long visits with the boys at Orangewood in October, and the trio enjoyed three more visits in November and two in December. The visits were filled with affection; S.Z. ran to father with a hug, liked to sit on father's lap, and kissed him goodbye at the end of one visit. Father interacted well with the boys and set limits for them; they referred to him as "dad" and enjoyed his company.

Father filed a modification petition on December 14, 2009, seeking reunification services. (§ 388.) He asserted the change was warranted because, as a "good role model now," "my son needs me in his life as I need him." Distinguishing several previous drug treatment stints, he "now acknowledge[d] that I do have a drug problem" and, accordingly, was "really paying attention to my classes" and taking notes. The juvenile court denied the order ex parte.

Father missed one visit in January and two in April 2010, but the remainder of the visits through June 2010, which were monitored at a restaurant, continued to be positive and affectionate. Father bought food for the boys and they ate and played together. He redirected them appropriately, and they responded well to him. S.Z. was always excited to see father.

In June 2010, father filed another modification petition seeking reunification services. He did not identify particular services he thought would be helpful, but instead presumably wanted more time to demonstrate he would not relapse. He attached copies of negative drug tests from October 2009 through January 2010 from his 90-day, in-patient rehabilitation program. In the five months since then, he lived in a program-affiliated sober living home, where he planned to stay one or two years to complete his recovery. But if the court granted reunification services, he felt "confident that I could successfully move out on my own now to provide a stable home and environment for my child."

He attached a glowing letter from his employer praising his reliability over the past nine months as a skilled machinist. He also attached his attendance cards from Alcoholics Anonymous, summarized the 12 steps and their meaning for him, and included a weekly activity sheet showing the hours he devoted to recovery support classes and activities. He did note in speaking to the social worker that it was important for his recovery to stay "busy" and not have free time. He attested that despite the turmoil in his life from the possibility "that I might lose my child for good" and his mother's cancer, he would not resort to drugs because "I have overcome that problem." With drugs behind him, he believed S.Z.'s best interest "lays within the security that I can now provide for him" and that to "separate children from the family" and deny eventual reunification would be "to tear down the only security that they have known." He cited his youth and the "half measures applied in out-patient treatment programs at the time" as the reasons for his earlier relapses. Father asserted he called S.Z. every day and that S.Z. stated at every visit that he wanted to live with him, whereas SSA's reports reflected calls several times a week, and the social worker was unable to verify S.Z.'s statements about wanting to live with father or what father had internalized about his drug use and whether it was behind him.

The juvenile court concluded a contested hearing on father's modification petition was unnecessary because, despite father's steps towards recovery, the evidence was lacking "to suggest that it would be in [S.Z.]'s best interest . . . to place his life on hold for another period [to offer] reunification" services.

At the .26 hearing a week later, the visitation monitor testified the children were always excited to see father and they behaved for him, in contrast to mother's visits. D.D. would talk to father about wanting to go home with him, but S.Z. did not. Father testified he and S.Z. were friends, but had a father-son relationship, too; he discussed S.Z.'s day at preschool and stressed the importance of good behavior at home. He spoke to S.Z. every two or three days by phone. They had a bond, having spent most of S.Z.'s life together, except when S.Z. was in the dependency system. He emphasized his recovery would last this time because the in-patient program worked for him. He knew now there was no cure for addiction, only treatment, and he was committed to staying clean through his classes, meetings, and working with others.

Father's counsel argued S.Z. was not adoptable, but the juvenile court reached the opposite conclusion, determined there were no applicable exceptions to preserve parental rights, and therefore terminated parental rights. Father now appeals.


A. The Juvenile Court Did Not Err in Denying Father's Modification Petition

Father argues the juvenile court abused its discretion by summarily denying his June 2010 modification petition. We disagree. The burden rests on the party seeking modification of an earlier juvenile court order to demonstrate "not only that circumstances have changed," but that the proposed order change "would be in the child's best interests." (In re Alexis W. (1999) 71 Cal.App.4th 28, 36; see, e.g., In re Anthony W. (2001) 87 Cal.App.4th 246, 251 [petitioner must "demonstrate how a change in the order would be in the best interest of these children"].)

Specifically, under section 388, subdivision (a), a parent "may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change" a previous court order. "If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (d), italics added.) Section 388 thus serves "as an 'escape mechanism' to ensure that new evidence may be considered before the actual, final termination of parental rights." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) "[T]he change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)

We review a juvenile court's summary denial of a modification petition for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 316-319), and therefore must affirm unless the decision "'"exceeded the bounds of reason."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Factors circumscribing the juvenile court's discretion in evaluating a modification petition, and informing our review, are: "(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted.)

Here, father argues he established that providing him reunification services a year into S.Z.'s third dependency would serve the child's best interests because his drug use "was behind him." Relying on the juvenile court's conclusion in In re Casey D. (1999) 70 Cal.App.4th 38, 42-43, 45 (Casey D.), father argues nine months' sobriety suffices to demonstrate one has overcome a heroin addiction. But both the trial and appellate courts in Casey D. concluded the change in father's circumstances did not mean it was in the child's best interests to change the order terminating reunification services. (Id. at p. 49.) We see no basis for a different conclusion here, particularly given father's extensive drug use and history of relapse despite treatment. (See In re Angel B. (2002) 97 Cal.App.4th 454, 463 [denial of parent's petition not erroneous where "the time she had been sober was very brief compared to her many years of drug addiction"]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [denial of modification petition upheld where, set against years of addiction and intermittent recovery, parent's "seven months of sobriety since his relapse . . . , while commendable, was nothing new"]; Casey D., supra, 70 Cal.App.4th at pp. 47-49 [nine months of sobriety did not show requisite change under section 388.)

Given the seriousness of father's twice-daily heroin problem and his hardcore drug history, the juvenile court reasonably could conclude it was not in S.Z.'s best interests to bear the risk of whether, as father asserted, this time was different. The relative weight of father's bond with S.Z. did not warrant the risk, since S.Z.'s stronger bond with L.D. paled for him at the chance for a "forever" home with his great aunt and uncle. (See § 366.26, subd. (b)(1) [identifying adoption as Legislature's preferred plan]; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 ["Adoption is the Legislature's first choice because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker"]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [the "most permanent and secure alternative" of adoption affords children "the best possible opportunity to get on with the task of growing up"].)

Father suggests all that was at stake was a few more months, perhaps a routine six-month review period, by which time he would have 15 months of sobriety and perhaps would have progressed beyond his controlled housing environment, maybe even finding a home suitable to begin considering trial visits. (But see § 361.5, subd. (a)(3) [setting maximum period for reunification efforts at 18 months following detention].) In speculating about what the future might have held, father gets ahead of himself and the record; the juvenile court could only consider the facts as they stood in father's petition. Indeed, father had not yet gained unmonitored visitation, undercutting the asserted parent-child bond. (Casey D., supra, 70 Cal.App.4th at p. 51.) Unlike the parents in the cases on which father relies (In re Aljamie D. (2000) 84 Cal.App.4th 424; In re Hashem H. (1996) 45 Cal.App.4th 1791), S.Z.'s bond with father was not so close to warrant more time. Rather, as observed in SSA's notes, the juvenile court reasonably could conclude S.Z. had stronger ties to other family members, like L.D., who cared for him in the course of three dependencies in four years, while father succumbed to drugs.

Moreover, as our Supreme Court has observed, the problem with extending dependency matters "just" a few more months at a time is that delay begets delay. (See In re Marilyn H. (1993) 5 Cal.4th 295, 304 [noting .26 hearing may be delayed for months after reunification period closes].) Childhood, however, is fleeting and does not "wait until the[] parents grow up." (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632; see also In re Meranda P. (1997) 56 Cal.App.4th 1143, 1164 ["Neither the child nor the law can wait for a parent to decide, at leisure, when he or she will accept in full the responsibilities of parenthood"].) Because serious drug abuse like father's is not easily ameliorated, and given the inherent uncertainty of whether nine months in a controlled setting sufficed to show this, particularly after father's relapse after years of purported recovery and S.Z.'s multiple dependencies, the juvenile court did not abuse its discretion in concluding S.Z.'s best interests did not require a hearing to consider whether "to place his life on hold" yet again to offer father the reunification services he forfeited. Thus, the juvenile court did not err in denying father's modification petition seeking reunification services.

B. Substantial Evidence Supports the Juvenile Court's Adoptability Finding

Father challenges the sufficiency of the evidence to support the juvenile court's conclusion S.Z. was likely to be adopted. "To terminate parental rights and order adoption, the trial court must find by clear and convincing evidence 'it is likely the child will be adopted.'" (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523 (Jeremy S.), disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The juvenile court's inquiry at the .26 hearing focuses on whether the child's age, physical condition, or emotional state make it unlikely anyone will adopt the child within a reasonable time. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) We review the juvenile court's adoptability determination for substantial evidence. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) Our circumscribed role on appeal and limited vantage point require that we draw all inferences and resolve any evidentiary conflicts in favor of the juvenile court's order. (See id. at p. 1562.)

Father rests his adoptability challenge on S.Z.'s behavioral issues during the turmoil of his many early placements and on the fact he had been in his current placement with Don and Julia only about a week at the time of the .26 hearing. The latter contention, however, misses the mark because a child's particular placement is not the issue, but rather his or her general adoptability. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) Moreover, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Ibid.)

Father props up a straw man regarding the absence of a fallback, SSA-"approved" family waiting in line to adopt S.Z. if his placement with Don and Julia failed. But "[t]o be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent '"'waiting in the wings.'"' [Citation.]" (In re R.C. (2008) 169 Cal.App.4th 486, 491.) To the extent S.Z.'s prospects with Don and Julia were relevant, the juvenile court reasonably could conclude the placement would succeed given L.D.'s support and Don and Julia's commitment to their grandnephew. As Julia observed, just as there had been no "breaking point" with her biological children, none was conceivable for S.Z.

Father suggests SSA failed to present evidence of non-relative families willing to adopt a child with S.Z.'s characteristics, given his record of aggression and tantrums. (See In re Asia L. (2003) 107 Cal.App.4th 498, 512 [reversing adoptability finding where agency conceded siblings needed "specialized placements" based on health and behavioral issues].) But S.Z.'s youth and his physical, mental, and developmental health and other positive characteristics made him an attractive candidate for adoption. Indeed, based on his evident charm, friendliness, and outgoing personality, the record shows he was a staff favorite at Orangewood despite his tantrums and behavioral issues there.

Additionally, these maladaptive traits subsided once S.Z. found a stable placement, and the record supports the conclusion he, and not solely L.D., deserved credit for the improvement, since his tantrums also subsided at school, not just in her home. (See Jeremy S., supra, 89 Cal.App.4th at p. 524 [behavioral improvement supports adoptability finding].) Given S.Z.'s improved behavior and core positive traits, the juvenile court reasonably could conclude he fit in the pattern of children who lash out initially in the dependency system, largely in response to the circumstances their parents created for them, and then adjust well with increased stability, without needing specialized placements.

In any event, contrary to father's suggestion that no one besides Don and Julia showed interest in adopting a child with S.Z.'s characteristics, a non-relative family had stepped forward expressing interest in providing a home for him and D.D. No home study ensued simply because the juvenile court moved forward to placement with Don and Julia. In light of all the foregoing, substantial evidence supports the juvenile court's conclusion S.Z. was likely to be adopted within a reasonable time.

C. The Juvenile Court Did Not Err in Finding the Benefit Exception Inapplicable

Father argues the juvenile court should have applied the so-called "benefit exception" to short-circuit termination of his parental rights. Section 366.26, subdivision (c)(1)(B)(i), "authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds 'a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.'" (In re Cliffton B., supra, 81 Cal.App.4th at p. 424.)

This two-pronged test requiring regular visitation and "benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(B)(i)) "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) To the contrary, once the mandated period for reunification has passed or, as in this case, never arose, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) As noted, after reunification ends, the Legislature's preferred permanent plan becomes termination of parental rights and subsequent adoption. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799; In re Cody W. (1994) 31 Cal.App.4th 221, 227-231.)

Thus, the benefit prong of section 366.26, subdivision (c)(1)(B)(i), is satisfied only if "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "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." (Ibid.) Again, "the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family." (Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) We will not disturb the juvenile court's balancing of interests unless no substantial evidence supports it (id. at p. 425), or the court abused its discretion (Jasmine D., supra, 78 Cal.App.4th at p. 1351).

Turning to the merits of father's claim, his invocation of the benefit exception fails.*fn1 Even assuming father satisfied the exception's first prong by participating in one hour of weekly monitored visitation with S.Z., only missing three visits but never gaining any more regular contact with him, the second prong remained an obstacle for father. Simply put, any benefit in continuing father's legal, parental relationship with S.Z. cannot be said to outweigh the benefits of adoption given that S.Z.'s stronger relationship with L.D. did not compel maintaining the status quo, for example by making her S.Z.'s guardian. S.Z. did not cry when he parted from father, however much he enjoyed the visits. According to the therapist and visitation monitor, he did not express a desire to live with father. Rather, he felt sad about father and that father had disappointed him. Sadness, let alone sadness prompted by disappointment in a parent, is "not enough" to show the requisite detriment to outweigh adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, the juvenile court did not err in declining to apply the benefit exception.


The juvenile court's order terminating father's parental rights is affirmed.




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