California Court of Appeal Sep 12, 2024 No. E083647Unpublished
Filed 9/12/24 In re A.D. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.D. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083647
Plaintiff and Respondent, (Super. Ct. Nos. J289098, J289099 & J292442) v. OPINION C.G. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Steven Mapes,
Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and
Appellant C.G.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and
Appellant J.D.
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Tom Bunton, County Counsel, Landon Villavaso, Deputy County Counsel, for
Plaintiff and Respondent.
I.
INTRODUCTION
Defendants and appellants, C.G. (Mother) and J.D. (Father), appeal from the 1 juvenile court’s order under Welfare and Institutions Code section 366.26 terminating
their parental rights to their three minor daughters. They argue the juvenile court erred in
finding the parental benefit exception under section 366.26, subdivision (c)(1)(B)(i) did
stated that she felt ready to have the children back as she had made life changes, such as
obtaining employment, housing, and completing some services. Mother provided a letter
of completion for individual counseling where she completed eight sessions. She also
provided a certificate of completion for outpatient drug treatment dated November 27,
2023. However, Mother stated that she had no random drug tests that could be provided
to the court to evidence her sobriety. Nevertheless, Mother stated that she did not use
drugs or drink alcohol. When asked where she lived, Mother stated she lived in Los
Angeles and was renting an apartment with family. When CFS inquired further, Mother
asserted that she lived with Father. She further reported that she was currently seven
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months pregnant and that Father was the biological father of her unborn child. Mother
reported Father did not drink or use substances, that he had employment, that she and
Father did not have disagreements or fights, and that the relationship was going well.
CFS noted Mother appeared to not benefit from her domestic violence program as
evidenced by her continued relationship with Father, and her substance abuse program as
evidenced by her driving under the influence arrest in July 2023.
On February 14, 2024, the juvenile court held an evidentiary hearing on Mother’s
section 388 petition. After considering the reports filed by CFS and arguments by the
parties, the court denied Mother’s request for additional services, finding no change in
circumstances and not in the children’s best interests.
On April 8, 2024, CFS reported that Mother continued to visit with the children
once a week for two hours. Mother had been consistent with her visitations, arrived on
time, and stayed for two hours. According to MGM, the children were happy to see
Mother, the visits went well, and that when the two hours were over the children were
able to say goodbye. MGM noted that at times the children expressed wanting to go with
Mother. Father continued to be incarcerated and did not have visits with the children.
On April 9, 2024, the date set for the section 366.26 hearing, Mother filed another
section 388 petition, requesting reunification services be reinstated. The court denied the
petition.
The court thereafter proceeded to the contested section 366.26 hearing. The
parents objected to the termination of parental rights and asked the court to consider legal
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guardianship. Mother testified on her own behalf. She stated that she had consistently
been visiting the children at MGM’s home once a week for two hours and special holiday
visits. During the visits, Mother engaged with the children by practicing their math and
sight words, playing games with them, and cooking and baking with them. The children
called her “mommy” and MGM “mama” and were excited to see her. Mother also stated
that she would bring learning and reading books to the visits, as well as toys, food,
clothes, and shoes.
After hearing from counsel, the juvenile court found Father had not met any of the
factors outlined in Caden C., supra, 11 Cal.5th 614. As to Mother, the court found
Mother met the first prong of the parent-child relationship exception by having regular
visitation and contact with the children. However, Mother did not meet the second and
third prongs of those factors. The court explained the children did not struggle at the end
of their visits with Mother and did not have the substantial, positive emotional attachment
needed to overcome the preference for adoption. The court also found that even if there
was a bond between Mother and the children, “it’s clear to the [c]ourt that it would not
cause great harm or be detrimental to any of the children if [it] were to sever parental
rights.” The court thus concluded Mother failed to meet her burden in establishing the
parental beneficial exception to termination of parental rights applied. The court found
the children to be adoptable and terminated the parents’ parental rights. The parents
timely appealed.
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III.
DISCUSSION
Mother contends the juvenile court erred by finding the parents failed to establish
the parental benefit exception to adoption did not apply. Father joins Mother’s argument,
and asserts if Mother’s parental rights are reversed, the same result should apply to him.
A. Legal Principles
“To guide the court in selecting the most suitable permanent arrangement” for a
dependent child “who cannot be returned to a parent’s care,” section 366.26 “lists plans
in order of preference and provides a detailed procedure for choosing among them.”
(Caden C., supra, 11 Cal.5th at pp. 629-630; see § 366.26, subd. (b); In re A.L. (2022) 73
Cal.App.5th 1131, 1149.) If the court finds that the child “is likely to be adopted” and
that “there has been a previous determination that reunification services be terminated,
then the court shall terminate parental rights to allow for adoption.” (Caden C., supra, at
p. 630; see § 366.26, subd. (c)(1); In re Katherine J. (2022) 75 Cal.App.5th 303, 316
(Katherine J.).) “But if the parent shows that termination would be detrimental to the
child for at least one specifically enumerated reason, the court should decline to terminate
parental rights and select another permanent plan.” (Caden C., supra, at pp. 630-631; see
§ 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A); In re B.D. (2021) 66 Cal.App.5th 1218, 1225.)
One of those reasons, the parental benefit exception, requires the parent to
establish by a preponderance of the evidence (1) “the parent has regularly visited with the
child,” (2) “the child would benefit from continuing the relationship,” and (3)
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“terminating the relationship would be detrimental to the child.” (Caden C., supra, 11
Cal.5th at p. 629; see § 366.26, subd. (c)(1)(B)(i); In re L.A.-O. (2021) 73 Cal.App.5th
197, 206.) “The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, at p. 632; see Katherine J., supra, 75
Cal.App.5th at p. 316.)
To establish the second element, that the child would benefit from continuing the
parental relationship, the parent must show the child has a “substantial, positive,
emotional attachment to the parent—the kind of attachment implying that the child would
benefit from continuing the relationship.” (Caden C., supra, 11 Cal.5th at p. 636; see In
re J.D. (2021) 70 Cal.App.5th 833, 854 (J.D.).) The “focus is the child,” and “the
relationship may be shaped by a slew of factors, such as ‘[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.’” (Caden C.,
supra, at p. 632; see J.D., supra, at p. 854.) “[C]ourts often consider how children feel
about, interact with, look to, or talk about their parents.” (Caden C., supra, at p. 632; see
In re J.D., supra, at p. 854.)
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at p.
633; see Katherine J., supra, 75 Cal.App.5th at p. 317.) “When it weighs whether
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termination would be detrimental, the court is not comparing the parent’s attributes as
custodial caregiver relative to those of any potential adoptive parent(s). . . . Accordingly,
courts should not look to whether the parent can provide a home for the child.” (Caden
C., supra, at p. 634; see Katherine J., supra, at p. 317.) “When the relationship with a
parent is so important to the child that the security and stability of a new home wouldn’t
outweigh its loss, termination would be ‘detrimental to the child due to’ the child’s
beneficial relationship with a parent.” (Caden C., supra, at pp. 633-634, italics omitted;
see Katherine J., supra, at p. 317.)
B. Standards of Review
A “substantial evidence standard of review applies to the first two elements. The
determination that the parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is
essentially a factual determination. It’s likewise essentially a factual determination
whether the relationship is such that the child would benefit from continuing it.” (Caden
C., supra, 11 Cal.5th at pp. 639-640; see Katherine J., supra, 75 Cal.App.5th at pp. 317-
318; In re L.A.-O., supra, 73 Cal.App.5th at p. 206.)
“The third element—whether termination of parental rights would be detrimental
to the child—is somewhat different. As in assessing visitation and the relationship
between parent and child, the court must make a series of factual determinations. . . . [¶]
Yet the court must also engage in a delicate balancing of these determinations as part of
assessing the likely course of a future situation that’s inherently uncertain. . . . The court
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makes the assessment by weighing the harm of losing the relationship against the benefits
of placement in a new, adoptive home. And so, the ultimate decision—whether
termination of parental rights would be detrimental to the child due to the child’s
relationship with his parent—is discretionary and properly reviewed for abuse of
discretion.” (Caden C., supra, 11 Cal.5th at p. 640; see Katherine J., supra, 75
Cal.App.5th at p. 318; In re L.A.-O., supra, 73 Cal.App.5th at p. 206.)
C. Analysis
In this case, at the section 366.26 hearing, the juvenile court expressly conducted
the analysis under Caden C. on the record before finding the exception inapplicable. We
find that the juvenile court did not err in finding the parental benefit exception did not
apply.
We agree with the juvenile court that Father failed to establish any of the factors
outlined in Caden C. We also agree with the juvenile court that Mother had established
she maintained regular visitation and contact with the children. The record indicates that
Mother consistently visited the children, especially after her services were terminated, but
not in the first six months of the dependency. The record shows Mother maintained
consistent contact with the children from August 2023 to April 2024.
In any event, Mother, who had the burden of proving the applicability of the
parental benefit exception (§ 366.26, subd. (c)(1)(B)(i); Caden C., supra, 11 Cal.5th at p.
635), did not introduce any evidence the children had a substantial, positive, and
emotional attachment to her. (Compare In re D.M. (2021) 71 Cal.App.5th 261, 271 [the
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father testified that the children wanted to return to him and that the youngest child cried
when their visits concluded]; J.D., supra, 70 Cal.App.5th at p. 856 [the mother
introduced logs of her virtual visits with her son that detailed the depth of their bond].)
Nor was there any evidence suggesting the children had such an attachment. While the
children were happy to see Mother, they did not cry when the visits ended and easily said
goodbye to Mother at the end of visits. (Compare In re B.D., supra, 66 Cal.App.5th at p.
1229, fn. 4 [evidence of the way the children greeted their parents with hugs and
expressed sadness at the end of visits suggested the parents had a “beneficial
relationship” with their children].) To the contrary, the evidence showed a relationship
that, at times, may have been harmful to the children. While in her custody, Mother
engaged in substance abuse and repeated incidents of domestic violence with Father. In
addition, while in Mother’s care, Mother often neglected the children’s needs and left the
home for days at a time without informing MGM of her whereabouts. And when she did
return, Mother appeared to be under the influence, had bruises on her face, and fought
with MGM to take the children. These episodes could not have been a positive
experience for the children. (See Caden C., supra, at p. 637 [“A parent’s struggles may
mean that interaction between parent and child at least sometimes has a ‘“negative”
effect’ on the child.”]; In re A.L., supra, 73 Cal.App.5th at p. 1159 [evidence the father’s
prior substance abuse had a negative impact on the child “was germane to the court’s
assessment of ‘“the strength and quality”’ of the parent-child relationship”].)
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The children were removed from Mother on two separate occasions. When they
were initially removed from parental custody on March 7, 2021, Y. was four years old
and A. was two years old. M. was a newborn when she was initially removed from the
parents on March 11, 2022. The girls were returned to Mother’s custody on in April
2023, but removed once again about three months later in July 2023. By the time of the
section 366.26 hearing on April 9, 2024, Y. was six years old, A. was four years old, and
M. was two years old. They had spent most of their young lives out of Mother’s custody.
The children required stability and security for longer periods of time than merely
months, something Mother was unable to provide given her history with substance abuse
and inability to leave Father who continued to abuse her. Meanwhile, the maternal
grandparents provided love, care, permanency, stability, and security to the girls who
were thriving in their home.
Finally, for the third element, the court considers whether the termination of
parental rights would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 631.)
In determining whether termination would be detrimental, “the question is . . . whether
losing the relationship with the parent would harm the child to an extent not outweighed,
on balance, by the security of a new, adoptive home.” (Id. at p. 634.) “Because
terminating parental rights eliminates any legal basis for the parent or child to maintain
the relationship, courts must assume that terminating parental rights terminates the
relationship. [Citations.] What courts need to determine, therefore, is how the child
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would be affected by losing the parental relationship—in effect, what life would be like
for the child in an adoptive home without the parent in the child’s life.” (Id. at p. 633.)
Nothing in the record suggests the children would be detrimentally affected by
having Mother’s rights terminated and being adopted by their maternal grandparents.
Rather, the record indicates it would be detrimental for the girls to return to Mother’s care
as evidenced by her failure to benefit from the services she received and continuing to
live with Father. Mother had allowed Father to have unsupervised contact with the
children, and as recently as February 2024, Mother reported that she lived with Father
and was seven months pregnant with Father’s unborn child. The girls were bonded to
their maternal grandparents, who had been providing them with ongoing care and love
since their birth, and had strong, positive attachments to them. Y. and A. had verbalized
their love for the maternal grandparents and wanted their maternal grandparents to adopt
them. They understood what it meant to be adopted and consistently voiced their desire
to remain with the maternal grandparents. Although M. was non-verbal, she was
observed to be physically and emotionally attached to MGM. M. stayed near MGM and
hugged her for comfort. Indeed, due to their maternal grandparents’ commitment, the
girls were thriving in their home. The stability, security, and sense of belonging the girls
felt in MGM’s home was evidenced by Y. and A.’s verbal expression of who they wanted
to live with and where they wanted to live. The evidence in the record is clear that the
children will not suffer any detriment from the termination of parental rights. The
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juvenile court did not abuse its discretion in finding the parental benefit exception did not
apply.
IV.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the termination of parental rights, holding that the parents failed to satisfy the parental benefit exception because they did not demonstrate that the children would suffer great harm or detriment from severing the parental relationship.
Issues
Did the juvenile court err in finding the parental benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court also found that even if there was a bond between Mother and the children, “it’s clear to the [c]ourt that it would not cause great harm or be detrimental to any of the children if [it] were to sever parental rights.””