Filed 1/13/16 In re A.W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re A.W., a Person Coming Under the 

Juvenile Court Law.

SAN FRANCISCO HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

K.W.,

Defendant and Appellant.

 A144863

 (San Francisco County

 Super. Ct. No. JD13-3063)

MEMORANDUM OPINION1

Father appeals from the juvenile court’s order terminating his parental rights. 

(Welf. & Inst. Code, § 366.26.)2 The sole issue on appeal is whether the trial court 

abused its discretion by refusing to find circumstances warranting application of the 

continuing beneficial relationship exception to termination of parental rights codified in 

section 366.26, subdivision (c)(1)(B)(i). (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 

1351.) We affirm the court’s order.

 

1 We resolve this case by a memorandum opinion pursuant to California Standards of 

Judicial Administration, section 8.1(1), (3).

2 Unless otherwise indicated, all further statutory references are to the Welfare and 

Institutions Code.
2

SUMMARY OF HISTORICAL AND PROCEDURAL FACTS3

A.W. was born in April 1999 to substance abusing parents and was removed from 

their care. As a result of in utero exposure to drugs, A.W. is significantly 

developmentally delayed and has special needs. Father, who himself suffers from 

developmental delays as well as drug-related cognitive, emotional, and behavioral 

difficulties, was given sole legal and physical custody of A.W. by the court in August 

2001. The San Francisco Human Services Agency filed a dependency petition and 

removed the minor from father’s custody in March 2013 for general neglect and caretaker 

incapacity. A.W. was often seen with urine and feces on his clothes; father had used 

corporal punishment on A.W. in front of his schoolmates, and allowed A.W. to be 

consistently truant.

The petition was sustained and the court ordered reunification services. At the sixmonth review hearing, reunification services were extended for an additional six months. 

At the 12-month review hearing, the court found father had made progress in acquiring 

life skills and was devoted to his son; however, father had failed to demonstrate an ability 

to respond to A.W.’s developmental and emotional needs, even in the context of 

therapeutic visitation, much less in the outside world.

On July 11, 2014, the court terminated reunification services, made the requisite 

findings, and set a permanency planning hearing pursuant to section 366.26 for 

November 12, 2014.

The court ordered continued visitation, with the hope that “the relationship be 

encouraged to grow, [and] that father develop into the most nurturing . . . person he can 

be.” Therapeutic visitation had been occurring twice a week and, according to the social 

 

3 We draw some of the facts and history from our prior unpublished opinion in this matter 

(K.W. v. Superior Court (Oct. 9, 2014, A142557)). Inasmuch as the parties are well 

acquainted with the protracted history of this case, we will limit our summary to the facts 

we deem necessary to our discussion of father’s claim. 
3

worker, “the dad was very consistent . . . dad faithfully came,” but “titration” of visits 

was contemplated, since at some point family therapy visits would end.

On July 22, 2014, foster mother, A.W.’s attorney, father, father’s attorney and 

A.W.’s and father’s treatment teams met to discuss a titration schedule for visits. The 

consensus was that the minor’s “long-term relationship with his father is very important 

for his emotional and behavioral well-being,” and that the “reduction in visits needs to be 

gradual in order to help [A.W.] adjust to all the changes.” Three-hour weekly visits were 

to continue until school started, and then would be reduced to two hours per week 

beginning the week of August 18, with a view towards ending therapeutic family visits in 

November after the hearing. 

Father filed a timely writ petition. On October 9, 2014, this court found 

reasonable services had been provided and denied the petition on the merits. (K.W. v. 

Superior Court, supra, A142557.)

The social worker’s report for the November 2014 hearing recommended 

termination of father’s parental rights and contains the following salient information.

A.W., then 15 years old, looked eight or nine years old, functioned at a kindergarten or 

first grade level, and was a high school freshman in special education classes. He has an 

autism diagnosis.

Father had lost two other sons to adoption, and had lost custody of a third son, 

now an adult. There were no referrals regarding A.W. from the time A.W. was returned 

to father’s custody (in 2001) until 2009, but there had been eight referrals concerning 

feces and urine on A.W.’s clothing between 2009 and the Agency’s resumption of control 

in 2013. Father admitted that after regaining custody of A.W. in 2001 “he went right 

back to methamphetamines and the unstable and unsafe life that led to [A.W.’s] second 

dependency.” Father did not start going to drug treatment until nine months into the 

reunification period. Even then, father’s counselor at Walden House reported he was not 

serious about his sobriety at first. He seemingly became serious around the time 
4

reunification services were terminated in July 2014. Although he never attended 

individual therapy during the year he had services, he began to see a therapist in the 

community after services were terminated. 

A.W. has been with his foster mother since March of 2013. She wishes to adopt 

him. She offers A.W. a spacious home and a stable income. She understands she would 

be fully responsible for A.W. after adopting him and that “[i]t is likely that [A.W.] will 

have to stay with [her] for the rest of her life. She has a large and loving extended family 

who have made plans to take [A.W.], should [foster mother’s] health fail or some other 

unforeseen health episode come along. [She] not only is willing to care for [A.W.] for 

the rest of her life, but she enjoys doing it, and loves him totally for just the person that 

he is.” In the social worker’s opinion, the foster mother has “the skills and the capacity 

and the proven track record” to “manage [A.W.’s] struggles with morality, with sexuality

and with interpersonal relationships.”

The social worker arranged for father to have an unsupervised visit with A.W. at 

Walden House. Father’s counselor reported that father took the opportunity to tell A.W. 

that his foster mother was a bad woman and he should not listen to her. A.W. was so 

upset he ran out of the room and locked himself in a bathroom. Father showed no 

remorse or sorrow for hurting his child’s feelings.

The Consortium for Children worked with A.W.’s foster mother and his father to 

find a way to accommodate visitation after the permanency planning hearing. However, 

they were not able to reach an agreement for postadoptive contact, and visits were to end 

after the hearing. The social worker told A.W. the visits with his father would end in 

November and he would live with his foster mother, foster brother, and the two dogs after 

he was adopted. A.W. reportedly said, “It is ok with me that I won’t see my dad 

anymore. He can’t take care of me. That is what the judge said.” He said he loved his 

foster mother, she loved him, and she could take care of him, his brother, and the two 

dogs.
5

At the permanency planning hearing held March 23, 2015, the court heard from 

the social worker and four additional witnesses about the nature of the bond between 

father and A.W. The social worker testified that A.W. continued to live with his foster 

mother and father continued to have two hours of visitation supervised by an intern from 

A Better Way once every two weeks. The social worker had observed a recent visit at 

which father had thrown toys and said disturbing things such as, “[S]chools aren’t always 

safe. Sometimes there’s shootings at school.” She also observed him at a recent IEP 

(individualized educational plan) meeting. Father appeared to know very little about 

A.W.’s school day or academic struggles. The social worker did not believe there was a 

parental bond between father and child. Although father was invested in getting his own 

unmet emotional needs met through his children, he was not reciprocally involved with 

the child in terms of being the competent person on whom the child could rely, the person 

who provides safety, or to whom the child looked for direction and emotional support. 

She characterized the bond as a fondness between them, “more like maybe an uncle or 

[an] older brother kind of relationship.” While she believed there was a biological need 

in all people to know their parents, because of A.W.’s disabilities it was difficult for him 

to convey what he was going through emotionally. She could not say there would be no 

detriment from the loss of parent, but she could not tell how much. She did think the 

relationship he had with his soon-to-be-adoptive foster mother was “a much more 

parental appropriate, security-producing, happy, complete relationship which meets his 

needs to have a parent.” She felt strongly A.W.’s need for permanency with foster 

mother outweighed any detriment he would potentially suffer from the termination of 

father’s parental rights. 

Dr. Ann Chu is a psychologist and program director for A Better Way, a San 

Francisco mental health program. She testified as an expert in clinical psychology with 

special training in child trauma and parent-child attachment issues. She supervised the 

individual and family therapists at that program. She opined that there was an attachment 
6

between A.W. and his father, but could not speak to the quality of the attachment because 

she had not done an extensive attachment protocol. “But behaviorally, we did observe 

that [A.W.] was very much connected to his father and worried about his father and 

tracked his father’s well-being and physical whereabouts; so all the signs we would want 

in looking for a bonded relationship between a parent and a child.” Since A.W. did not 

usually tell his therapists verbally how he was doing, they had to infer a lot of his 

functioning from his behaviors. After visits between A.W. and his father were reduced, 

A.W.’s behavior deteriorated. Given A.W.’s cognitive limitations, she really could not 

predict what his response would be to the loss of his relationship with his father, but “he 

would be at high risk for increased anxiety along with other deteriorations in his 

functioning,” i.e., “acting out behavior.”

The intern from A Better Way testified she had been A.W.’s individual therapist 

for about a year. She had seen both A.W. and father in family therapy four times since 

January. A.W. became anxious and his behavior regressed during a period of many 

changes in his life, one of which was the reduction of visitation with his father. He 

would ask if he was seeing his father when he came for individual therapy. When he saw 

his dad in the waiting room, A.W. would run to him, give him a hug and converse about 

his day. Based on her observations of A.W., this witness wrote in October 2014 that 

A.W. showed a significant and strong attachment to his father. In the previous week’s 

therapy session, A.W. said he would feel “lousy” if he could not see his father, and his 

play became aggressive and disorganized. 

The former family therapist for A.W. and father from A Better Way testified. She 

supervised their therapeutic visitation from August 2014 to January 2015. From 

observing their interactions before, during, and after family therapy sessions, the therapist 

concluded father and son shared a continuing bond. They were appropriately playful; and 

father would teach his son life skills, such as opening a locker at school or coping with 

bullying in a healthy way. Father had learned how to direct A.W. using a firm but gentle 
7

tone of voice. She could not provide an opinion about the impact on A.W. if he lost the 

relationship with his father, but she could say they had a safe and healthy relationship.

She was not a bonding specialist. 

It was stipulated father was participating in drug treatment and was living in a 

clean and sober environment. Father’s Dependency Drug Court case manager testified 

all drug tests had been negative since the last hearing. 

In argument, A.W.’s attorney joined in the Agency’s recommendation that father’s 

parental rights be terminated.

The court found by clear and convincing evidence that the minor is likely to be 

adopted by the person named in the section 366.26 report. The court also found that 

while “there is a benefit and . . . there is a relationship” between the minor and his father, 

that benefit and that relationship did not overcome the statutory preference for adoption.

The court then terminated mother’s and father’s parental rights.

DISCUSSION

Section 366.26 provides in relevant part: “If the court determines . . . by a clear 

and convincing standard, that it is likely the child will be adopted, the court shall 

terminate parental rights and order the child placed for adoption . . . unless . . . [¶] . . . [¶] 

[t]he court finds a compelling reason for determining that termination would be 

detrimental to the child due to one or more of the following circumstances: [¶] The 

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).)

Father contends this exception to adoption as the statutorily preferred permanent 

plan applies here because he maintained regular, loving visitation with the minor and as a 

result they share such a strong bond that A.W. would benefit from continuing their 

relationship. We disagree.
8

We review the juvenile court’s order for abuse of discretion.4(In re Jasmine D., 

supra, 78 Cal.App.4th at p. 1351.) Abuse of discretion means the trial court’s decision 

exceeded the bounds of reason. When competing inferences can be reasonably deduced 

from the facts, the reviewing court will not substitute its decision for the trial court’s. (In 

re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) In other words, our review is of 

necessity deferential.

The essential facts are not in dispute. The minor is likely to be adopted by the 

foster mother with whom he has lived since 2013. She loves him and he loves her. The 

minor lived with father from 2001 to 2013. They have a relationship, and the minor and

father care for each other. Father maintained regular visitation with the minor throughout 

the dependency proceedings, but never progressed beyond supervised visits. They had 

one unsupervised visit after reunification services were terminated, and it ended 

disastrously. Because of the minor’s profound disabilities, no one could predict exactly 

how the minor would respond to the end of contact between him and father, but the minor 

is likely to feel anxious and engage in acting-out behaviors. 

The beneficial parent/child relationship exception means “the relationship 

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

child would gain in a permanent home with new, adoptive parents. In other words, the 

court balances the strength and quality of the natural parent/child relationship in a 

tenuous placement against the security and the sense of belonging a new family would 

confer. If severing the natural parent/child relationship would deprive the child of a 

substantial, positive emotional attachment such that the child would be greatly harmed, 

the preference for adoption is overcome and the natural parent’s rights are not terminated. 

 

4 Whether review of the juvenile court’s order is for substantial evidence (In re 

Autumn H. (1994) 27 Cal.App.4th 567, 576) or for abuse of discretion (In re Jasmine D., 

supra, 78 Cal.App.4th at p. 1351), or a combination of both (In re K.P. (2012) 

203 Cal.App.4th 614, 621–622), the result is the same in this case. We apply the abuse of 

discretion standard here because the parties agree it is appropriate. 
9

[¶] Interaction between natural parent and child will always confer some incidental 

benefit to the child. The significant attachment from child to parent results from the 

adult’s attention to the child’s needs for physical care, nourishment, comfort, affection 

and stimulation. [Citation.] The relationship arises from day-to-day interaction,

companionship and shared experiences. [Citation.] The exception applies only where the 

court finds regular visits and contact have continued or developed a significant, positive, 

emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at 

p. 575.)

“The [§ 366.26, subd. (c)(1)(B)(i)] exception must be examined on a case-by-case 

basis, taking into account the many variables which affect a parent/child bond. The 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 

are some of the variables which logically affect a parent/child bond.” (In re Autumn H., 

supra, 27 Cal.App.4th at pp. 575–576.) Here, father argues the length of time between 

dependencies during which the minor lived with father, his faithful and regular visitation, 

the positivity of most of their interactions, and his compliance with much of his case 

plan, all militate in favor of finding that father and son maintained so strong a bond that 

the statutory preference for adoption was overcome. 

However, other factors weigh against that conclusion. A.W.’s life with father was 

far from idyllic. Father returned to using drugs almost immediately after A.W. was 

returned to him. Starting in 2009, there were consistent reports that A.W. was wearing 

urine-stained and feces-encrusted clothes. He was often truant from school. At the age 

of 13, he was not yet potty trained. As A.W. grew older, father clearly became less able 

or willing to attend to A.W.’s special needs. It is true father visited regularly with A.W.,

but he was never able to get beyond supervised, therapeutic visits. When father did get 

an unsupervised visit, it only demonstrated that, despite the many therapeutic visits in 

which he had participated, he had not learned to put his son’s best interests before his 
10

own. He continued to act inappropriately (throwing toys) and say inappropriate things 

(school shootings) during recent therapeutic visits. Father points to his partial 

compliance with his case plan, such as participating in Dependency Drug Court, 

completing a residential drug treatment program, and testing negative for drugs, but he 

only achieved these milestones after reunification services were terminated. Finally, not 

one of father’s witnesses was able to pinpoint with specificity what harm A.W. would 

suffer, except that A.W. told one witness he would feel “lousy.” Dr. Chu, who did not 

have direct contact with A.W., opined A.W. would likely feel anxious or act out, but did 

not say how long such anxiety or acting out behaviors would last. None ventured the 

opinion that whatever sadness or anxiety A.W. would naturally feel when visits ended 

with his father was greater than the benefit he would receive from adoption into a stable 

home.

Father argues “[t]he same emotionally significant attachment found in In re S.B.

[(2008) 164 Cal.App.4th 289], is apparent here,” but save for the similarity that the 

minors in both cases lived with their parents for considerable periods of time prior to the 

dependency, the cases are distinct. In In re S.B., the minor’s father was her primary 

caregiver for the first three years of her life. (Id. at pp. 293, 298.) He had complied with 

every aspect of his case plan but was unable to reunify with S.B. and assume full-time 

care for her because of poor physical health and combat-related posttraumatic stress 

disorder. He visited with S.B. three times a week. (Id. at pp. 293–294.) Her primary 

caretakers during the dependency were her maternal grandparents. (Ibid.) The minor 

expressed the wish to live with her parents and grandmother. (Id. at p. 295.) The doctor 

who conducted a bonding study concluded the bond between S.B. and her father was 

strong enough that there was a potential for harm to S.B. from severing the relationship 

with him. (Id. at p. 296.) The trial court recognized S.B. had “ ‘an emotionally 

significant relationship’ ” with her father (id. at p. 298), and based its decision to 

terminate parental rights in part on its understanding the grandparents were willing to 
11

continue to allow the father to visit, an unenforceable promise. (Id. at p. 300.) In 

reversing the trial court’s order terminating parental rights, the Court of Appeal observed: 

“The record here fully supports the conclusion [the father] continued the significant 

parent-child relationship despite the lack of day-to-day contact with S.B. after she was 

removed from his care.” (In re S.B., at p. 299.)

Here, by contrast, father was not prevented from reunifying with the minor by 

circumstances beyond his control, and the trial court did not base its decision in any part 

on an unenforceable promise by the adoptive parent to permit visitation; in fact, efforts to 

secure postadoption visitation had failed. In our view, the trial court did not err in 

concluding that the potential harm A.W. might suffer from the severance of his 

relationship with his father did not overcome the benefit he would receive from the 

stability and safety of his adoptive home. The evidence fully supports the trial court’s

conclusion that father’s regular, supervised visits provided an incidental benefit to A.W. 

and their cessation would cause some undeterminable sadness, but severing the 

relationship would not deprive the minor of such a substantial, positive emotional 

attachment that the minor would be greatly harmed. On these facts, the court’s decision 

was not unreasonable, and no abuse of discretion appears. (In re Jasmine D., supra,

78 Cal.App.4th at p. 1351.)

DISPOSITION

The juvenile court’s orders are affirmed.
12

_________________________

DONDERO, J.

We concur:

_________________________

MARGULIES, Acting P.J.

_________________________

BANKE, J.

A144863