Filed 1/31/14 In re A.F. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.F., a Person Coming Under the Juvenile Court Law.
SAN DIEGO C OUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. E.F. et al., Defendants and Appellants. D064176
(Super. Ct. No. SJ12415)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affir med.

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

. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant B.C.2

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado , Deputy County Counsel, for Plaintiff and Respondent. E.F. and B.C. (respectively, F ather and M other) are the unmarried parents of A.F. , who is now four years old. The juvenile court terminat ed parental rights ; found the exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) 1 (the " continuing benefit exception " ) did not apply ; and ordered adoption as A.F. ' s permanent plan.
F ather appeals, arguin g the court issu ed an unlawful visitation order more than a year before the termination of parental rights ; the visitation order led to the diminishment of the bond between A.F. and F ather , and th e diminished bond led to termination of his parental rights

. We conclude F ather forfeited this argument, as he did not timely challenge the visitation ord er . M other also appeals, arguing the court ' s finding s are not supported by substantial evidence; the court considered improper factors when determining whether the continuing benefit exception applied; and the court should have chosen guardianship as
A.F. ' s permanent plan. We conclude substantial evidence supports the court ' s findings , and the court did not consider improper factors in its determination

. We aff irm the judgment

.

1 All further statutory references are to the Welfare and Institutions Code.3 FACTUAL AND PROCEDURAL BACKGROUND

A. A.F. ' s Removal In July 2010 , the San Diego County Health and Human Services Agency (the Agency) filed a petition on A.F. ' s behalf under section 300, subdivisions (b) and (g). The Agency alleged that Father hit Mother in the face, injuring her and knocking her unconscious. Police later discovered the parents smoking marijuana in A.F. ' s presence and arrested them, leaving A.F. without adequate care. Police also discovered e cstasy pills under a mattre ss in the home. Father later acknowledged that the pills were his. The juvenile court sustained the petition under section 300, subdivision (b) , and placed A.F. in the care of B.G. (the guardian) , a nonrelative extende d family member who had raised Fath er from the age of 12. The court ordered family reunification services. The parents ' plan s focused on their need for domestic violence and substance abuse treatment. The c ourt also ordered the parents to complete a parenting education program and to par ticipate in a 12

- step program. At the 12

- month review hearing on September 1 4 , 2011, the Agency reported that the parents had not satisfactorily completed their reunification services and six additional months of services would not be in A.F. ' s best int erest s . The parents had not " involved themselves in all aspects of their case plan, and [had], at best, made marginal progress on the services they [had] engaged in. " Moreover, the Agency reported the parents had both used narcotics again ; Mother had not participated in domestic violence treatment ; and Father remained in denial of his domestic violence issues. The Agency concluded that returning A.F. to the parents would pose a grave risk to her safety and recommended4

termination of parental rights and s etting a hearing to select and implement a permanency plan under section 366.26. The court agreed, finding there was n o substantial probability that A.F. would be returned to the parents within six months . The court terminated services and scheduled a pe rmanency plan hearing

. Father petitioned this court for revie w of the juvenile court ' s order setting a permanency plan hearing

. W e denied Father ' s petition for review

. ( E.F. v. Superior
Court (Jan. 6, 2012 , D060543) [nonpub. opn.]

. )
B. The First Perma nency Plan On March 5 , 2012, the juvenile court held a permanency plan hearing. In advance of the hearing, the Agency filed a re port in which it recommended adoption as A.F. ' s permanent plan. The Agency ' s recommendation was based on its assessment that the parents had a playmate relationship with A.F. rather than fulfilling parental roles, the parents ' continuing relationship with each other, their poor judgment in lifestyle choices, and their apparent lack of insight from the services the Agency provide d them.
D espite this initial recommendation , the Agency later recommended guardianship
as A.F. ' s permanent p lan. It did so based on the request of the guardian , who asked that Father be given an additional year to regain custody of A.F. Although the gu ardian enjoyed caring for A.F. and was willing to adopt her, he expressed that he could not adopt her in good conscience in light of his belief Father had a strong bond with her

. At the permanency plan hearing , the court appointed B.G. as A.F. ' s legal g uardian, ordered that the parents have " reasonable " visitation, and terminated jurisdiction. In doing so, t he court specifically found that the continuing benefit exception to termination5

of parental rights applied to Father because he had maintained regu lar visitation with A.F., shared a bond with her , and A.F. would benefit from a continuing relationship with
him

. T he court did not make such a finding with respect to Mother

. With respect to visitation, the court ordered: " The PARENTS is/are to have re asonable visitation with the time, place, manner, frequency, and length of visitation to be determined by the guardian(s) in the best interest of the child. " The parents did not object to this order at the time of the hearing or by way of appeal. Between March and September, the guardian made A.F. available for visitation on a regular basis.
C. The Guardian '

s Section 388 Petition Six months after the permanency plan hearing, the guardian stopped making A.F. available for visitation with the parents, an d filed a section 388 petition to modify the

court ' s March 2012 order. The guardian sought another permanency plan hearing , requesting the court implement a more permanent plan for A.F. The guardian contended the parents continued to maintain a volatil e relationship, which included a new and serious domestic violence incident . The guardian further contended A.F. ' s " long [

- ] term care and continued stability " would be improved " without the involvement of either of the birth parents. "
A ccording to a Natio nal City Police Department crime report , Mother reported
that on September 13, 2012, Father drove her to a motel room against her will, punched and bit her, and refused to let her leave once they arrived at the motel. The police officer observed visible b ruising on Mother ' s left arm and a " large " bit e mark on the back of her right shoulder. Father fled the scene and remained a fugitive until at least November 20,6

2012. On that date, Father called the guardian, stating he was " still on the run from the
po lice " and wished to see A.F. one final time before he surrendered. The guardian , concerned about Father ' s intentions, denied the request

. At the January 9, 2013 , hearing , the court granted the section 388 petition, finding clear and convincing evidence that there was no substantial likelihood that A.F. and the parents would be unified. T he court scheduled a hearing to determine a new permanent plan for A.F

. 2 Neither parent challenged this order.

D. The Second Permanency Plan ning Hearing At the second permanency plan hearing held on July 5, 2013, the court considered evidence contain ed in reports the Agency submitted on February 6 , May 6, and June 19, 2013; the stipulated testimony of the parents; and counsels ' arguments. 3
1

. The Agency '

s May 6, 2013 , Report Th e Agency ' s May 6, 2013, report include s details of various visits between A.F. and t he parents. The Agency opined that although A.F. seemed entertained when the parents visited, she relied exclusively on the guardian and his girlfriend as her p arental figures and for her physical and emotional needs. A.F. did not show signs of emotion when the visits ended, at times recoiled when Mother attempted to show her affection , ignore d Mother ' s request for help, and at times stated she wanted to go home

. T he social worker observed A.F. act " bossy " towards Father , ma k e a " loud yelling sound " when

2 The court reinstated jurisdiction over A.F. on December 12, 2012.
3 The record does not contain the February 6, 2013, report.7

Father kissed her , and easily left the visit s and went home with the guardian and his girlfriend.
T he Agency opined that " it [was] clear at [that] time the pa rent [

- ] child bond [did] not exist any longer " and that A.F. " view [ed] her caregiver and his girlfriend as parental figures that [ met ] her basic needs; provide [d] her with emotional support and love; [and were] consistent[] and stable people in her life. " A lthough the parents had been consistent in their visits since February 2013, A.F. ' s relationship with them was one of friend or playmate. The Agency further opined the parents had not shown that they were capable of providing A.F. a stable and safe envi ronment due in part to their unstable and, at times, violent relationship. The Agency recommended termination of parental rights and adoption as A.F. ' s permanent plan.
2. The Agency '

s June 19 , 2013 Addendum Report In the June 19, 2013 addendum report, the Agency continued to recommend that the court terminate parental rig hts and choose adoption as A.F. ' s permanent plan. The Agency also updated the court on developments since its May 6 report. A t Father ' s request , the social worker arranged for a visit with A.F. on May 21, 2013. The guardian transported A.F. to the Agency ' s office for the visi t but , Father did not arrive because, according to Mother , he was incarcerated again. Mother had four visits with A.F. from May 14 to June 4 , 2013, but m issed v isits on May 7 and June 11

. According to the social worker , the visitation center monitor reported the visits were generally positive. However, during the visit s on May 14 and8

May 28 , A.F. noticed Mother ' s fingers were bandaged and asked what had happene d ; Mother told A.F. her nail had fallen off. T he Agency submitted screenshots of Mother ' s social media posts that described her being " high " on " herb " and having her fingernail

torn , stating : " T his is what happens to stupid drunk people. " The Agency ag ain reported that al though the parents visited A.F. on a regular basis, she parted with no emotional reaction when the visits ended

. A.F. viewed the guardian and his girlfriend as her parental figures and looked to them to provide for her physical and emo tional needs. A.F. viewed Mother and F ather only as close relatives. The parents also continued making poor life choices , continued to have a relationship with each other , and had not addressed the domestic violence issues in their relationship. Althoug h the parents loved A.F., they were not capable of parenting her. The Agency opined the relationship between A.F. and t he parents did not outweigh the benefits A.F. would g ain from adoption.
3. The Parents ' Stipulated Written Testimony By way of stipul ated written testimony, Father testified he did not agree with the adoption plan for A.F. because he had " such a great bond " with her. A.F. knew who he was and called him " daddy. " He testified she told him about her school and that she loved t he shoes Mo ther had given her, and stated she wanted to go to his house. Father
also testified A.F. often asked him about his family members. He testified he wished he could have had more time with A.F. , but the guardian limited his visits and did not allow Father to care for her while the guardian was at work. F ather stated A.F . missed him and cried for him.9

In Mother ' s stipulated written testimony, Mother stated she also did not agree with the Agency ' s recommendation of adoption as A.F. ' s permanent plan because she had a bond with A.F. that should not be severed. She testified A.F. called her " mommy. " Mother testified she always brought A.F. food at visits, and A.F. asked Mother for help opening the food. Mother claimed she also provided A.F. with clothes, sho es, a backpack, and toys. During visits, she and A.F. read together and practiced counting. According to Mother , A.F. loved her because she always asked to go home with her.
4. The Court '

s Rulings
A fter considering the evidence contain ed in the Agency ' s rep orts, the stipulated testimony of the parents, and counsels ' arguments, the court found by clear and convincing evidence that A.F. was likely to be adopted if the court terminated parental rights. T he court found A.F. would no longer benefit from a c ontinuing relationship with either parent, and the continuing benefit exception that previously applied to Father no longer applied. The court then terminate d parental rights, chose adoption as A.F. ' s permanent plan, designated the guardian as A.F. ' s pros pective adoptive parent, and referred the matter to the Agency for adoption services.
DISCUSSION
I

. F ather ' s Appeal
F ather concedes substantial evidence supports the court ' s July 2013 f inding that A.F. was adoptable and further concedes the court did no t err when it found the continuing benefit exception did not apply to him as of the second permanency plan hearing. Instead, Father maintains his relationship with A.F. deteriorated because of the10

visitation order the court issued at the first permanency plan hearing in March 2012. Specifically, he contends the trial court erred when it delegated all of its power over visitation to the guardian, who in turn unilaterally cut off visitation in late 2012 when Father was evading arrest. The Agency contends F ather forfeited this argument because he did not challenge the visitation order. As an initial matter, we agree t he juvenile court erred when it relinquished all control over visitation to the guardian and at the very least should have set the frequency and duration of the visits. ( In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314; In re
James R. (2007) 153 Cal.App.4th 413, 436; In re M.R

. (2005) 132 Cal.App.4th 269, 274;
In re S.H. (2003) 111 Cal.App.4th 310, 319 .) However, neither Father nor Mother

c hallenged the court ' s visitation order in a timely manner despite the court ' s express admonition that they may do so. F ather now contends the eventual breakdown of his bond with A.F. was the result of a visitation order he never challenged. However, both parents sat on their rights both during the proper time to challenge the visitation order and when the guardian changed visitation in late 2012. The visitation order Father challenges issued in March 2012, and the time to challenge that order has long pa ssed. One purpose for such deadlines is to address correctable errors in a timely manner so the impact of the error has limited or no reverberations in the case as it progresses. This is particularly true in dependency matters where the terms of visitati on may influence a young child ' s relationship with a parent and eventually lead to inevitable results at hearings in the future

. Accordingly, we conclude Father forfeited this issue because he did not raise it before the trial court or otherwise11

challenge the visitation order. ( Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686; In re Sheena K. (2007) 40 Cal.4th 875, 880

- 881.) In any event , even if Father had not forfeited this issue , the trial court ' s error was harmless. F ather contends the c ourt ' s error allowed the guardian to unilaterally terminate visitation and caused the diminishment of the f ather

- child bond he shared with A.F. However, this argument ignores Father ' s own role in the cessation of visitation. The record clearly shows the guardian allowed Father to see A.F. on a regular basis until Father ' s own conduct caused a change in the status quo. Following the domestic violence incident in September 2012 , the guardian ended Father ' s visitation to protect A.F. from Father ' s objective ly erratic and unsafe behavior and filed the section 388 petition. Faced with Father ' s behavior, we have no doubt that to protect A.F., Father ' s visitation rights would have been seriously curtailed by the court . In short, it was Father ' s conduct and fug itive status which effectively changed his visitation with his child, not the court ' s order delegating visitation authority to the guardian.
II

. Mother '

s Appeal Mother contends the court erred when it found that the continuing benefit exception did not a pply to her. She further asserts the court applied incorrect criteria to this determination and should have chosen guardianship as A.F. ' s permanent plan. We conclude the court did not apply impermissible criteria , and substantial evidence supports it s fi ndings. At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship , or long

- term foster care. ( In re S.B. (2008) 164 Cal.App.4th 289,12

296

- 297.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. ( Id. at p. 297; San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that t ermination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). ( In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343

- 1345.) Section 366.26, subdivision (c)(1)(B)(i) provides an excep tion to termination of parental rights when " [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. " In order to overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child ' s life, resulting in a significant, positive emotional attachment of the child to the parent. ( In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 .)
I n the context of section 366.26, subdivision (c)(1)(B)(i), " ' benefit ' " means that the parent

- child relationship " promotes the well

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

- being the child would gain in a permanent home with new, a doptive parents. " ( In re Autumn H. (1994) 27 Cal.App.4th 567, 575. ) " If severing the natural parent [

- ] child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference f or adoption is overcome and the natural parent ' s rights are not terminated. " ( Ibid. ) To review Mother ' s substantial evidence challenge, we view the evidence in the manner most favorable to the prevailing party and indulg e in all legitimate and13

reasonable inferences to uphold the court ' s ruling. ( In re S.B. , supra , 164 Cal.App.4th at pp. 297

- 298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. ( In re
Autumn H. , supra , 27 Cal.App.4th at p. 576.) Here, Mother bears the burden to show her bond is strong enough to confer more than " some benefit " to the child to overcome the strong preference for adoption at the permanency plan hearing. ( In re Angel B. (2 002) 97 Cal.App.4th 454, 466.) M other has not shown her relationship with A.F. rose to a level that outweighs the benefits of adoption. Although t he record shows that Mother maintained regular visitation with A.F., the record supports that A.F. did not h ave a significant, positive emotional attachment to Mother and that A.F. would not be harmed by termination of parental rights. Although A.F. seemed entertained when Mother visited, A.F. did not show affection to Mother , recoiled and resisted Mother ' s aff ection, did not react emotionally when Mother left, and seemed more excited to see Father

. At best, Mother is A.F. ' s friendly visitor or extended family member. Mother has not shown she had the type of substantial emotional attachment with A.F. such that termination of parental rig hts would be detrimental to A.F. Thus, although A.F. would continue to glean some benefit from her relationship with Mother , substantial evidence supports the trial court ' s determination
that t he well

- being A.F. would gain from permanent placement in the guardian ' s home far14

outweigh ed any benefit from a continued relationship with Mother

. T he court did not err in finding that the continu ing benefit exception did not apply to Mother

. 4
M other also argues the trial court consider ed " impermiss ible factors " when it found the continu ing benefit exception did not apply. Specifically, she objects to the

court ' s consideration of the caregiver " stepp [ ing ] up " to care for A.F., the caregiver ' s bond with A.F., and the caregiver ' s permanen t presence and status as A.F. ' s parental figure. We are not persuaded. The court discussed the se points in the context of the parents ' lack of any parental bond with A.F., and the comments ultimately weighed on whether A.F. would suffer detriment if the court terminated parental rights . This is a proper factor for the court to consider when determining whether the continuing benefit exception applies

. M other further contends the court should not have considered " the necessity of a child to have a struct ured home environment with predictable routines. " However, this consideration simply reflects the u nderlying purpose of permanency pla n hearing s : to provide a stable, permanent placement for a child

. Viewed in th is contex t , t he court considered nothing more than the very purpose of such hearing s . The court was not barred from discussing or considering this fundamental purpose , and we find no error in it s reasoning.

4 Our conclusion here forec loses Mother's final contention that the court "should have chosen a permanent plan of guardianship or long

- term foster care" rather than terminate parental rights based on the "relationship [A.F.] had with [M]other."15 DISPOSITION The judgment is affirmed.

HALLER, J.
WE CONCUR:

NARES, Acting P. J.

M C DONALD, J.