California Court of Appeal Feb 3, 2025 No. E084475Unpublished
Filed 2/3/25 In re N.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 N.P., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY E084475 CHILDREN AND FAMILY SERVICES, (Super.Ct.Nos. J293759, J293760 Plaintiff and Respondent, & J293761)
v. OPINION
Z.O. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynne M. Poncin,
Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant, Z.O.
1
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant, J.P.
Tom Bunton, County Counsel, Helena Rho, Deputy County Counsel, for Plaintiff
and Respondent.
I. INTRODUCTION
Z.O. (Mother) and J.P. (Father) appeal from an order terminating their parental
rights with respect to three children: Ju.P., M.P., and N.P. The only argument asserted on
appeal is that the juvenile court abused its discretion by failing to apply the parental-
benefit exception to termination of parental rights, which generally prohibits the
termination of parental rights where the juvenile court “finds a compelling reason for
determining that termination would be detrimental to the child” because “[t]he parents
have maintained regular visitation and contact with the child and the child would benefit
from continuing the relationship.” (Welf. & Inst. Code1, § 366.26, subd. (c)(1)(B)(i).)
For the reasons set forth below, we find no abuse of discretion and affirm the order.
II. BACKGROUND
A. Facts and Procedural History
Father and Mother are the parents of Ju.P., M.P., and N.P. In July 2022, San
Bernardino County Children and Family Services (CFS) filed a petition pursuant to
section 300 on behalf of all three children, alleging that the children were at risk of harm
as the result of (1) domestic violence in the home; (2) Mother’s untreated mental health
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
issues; (3) both parents’ ongoing struggle with substance abuse; and (4) Mother’s loss of
custody and failure to reunify with respect to the children’s half siblings. In August 2022,
the parties negotiated a mediated agreement with respect to the petitions. As a result, the
juvenile court found true allegations that the children faced a substantial risk of harm due
to domestic violence in the home and the parents unresolved substance abuse issues;
formally ordered the children removed from parents’ custody; and ordered that parents be
given reunification services. However, the parents were unable to reunify within the
statutory time period and the juvenile court set the matter for a selection and
implementation hearing pursuant to section 366.26.
B. Selection and Implementation Hearing
On August 14, 2024, the juvenile court held a contested selection and
implementation hearing. The juvenile court admitted into evidence: (1) status review
report filed by CFS pursuant to section 366.21, subdivision (e); (2) additional information
reports filed by CFS; (3) a bonding study conducted by a clinical psychologist; and
(4) the section 366.26 report filed in advance of the hearing. The juvenile court also
received live testimony from Mother and Father.
1. Six-Month Status Review Report
According to the six-month status review report filed pursuant to section 366.21,
subdivision (e), all three children were placed in the home of maternal grandmother.
Mother had regularly participated in reunification services and visitation, but did not
appear to fully benefit from some of those services, evidenced by ongoing antagonistic
3
communications between Mother, Father, and maternal grandmother. Mother had tested
negative for controlled substances, but Father did not. Additionally, a social worker
reported witnessing ongoing domestic violence between the parents. As a result, CFS
recommended that the children remain in out-of-home placement while parents received
further reunification services.
2. Additional Information Reports
CFS filed an additional information report in February 2024. It informed the court
that Mother and Father had tested negative for controlled substances thus far, but had yet
to complete the full extent of court-ordered testing. However, social workers were
provided a recording of an argument between Mother and Father during an unsupervised
visit for N.P.’s birthday. In the recording, parents were heard yelling and cursing at each
other in front of the children, while Ju.P. pleads with them to stop. Parents then abruptly
ended N.P.’s birthday celebration as a result of their ongoing argument. When a social
worker followed up with parents, Father was apologetic, but Mother was defensive and
made comments that appeared to threaten the social worker with physical violence.2 CFS
was also informed that Mother intended to file a restraining order against Father and that
the children had reported additional incidents of arguing during unsupervised visitation.
2 Specifically, Mother accused the social worker of only reporting negative things about the parents and told the social worker “‘that is why social workers get hurt’” on more than one occasion.
4
CFS filed a second additional information report in July 2024. A social worker
reported on her observations during a supervised visit. During the visit, all parties
engaged in appropriate interaction and showed affection for each other, but the children
“did not appear to have a hard time saying bye to the parents.” Social workers also
reported that following the 18-month review hearing, Mother attempted to influence Ju.P.
to “stop the adoption from happening” by surreptitiously giving Ju.P. a cell phone,
initiating unsupervised contact with Ju.P., and attempting to pressure Ju.P. into expressing
a desire not to be adopted.
3. Section 366.26 Report and Additional Information
In its section 366.26 report, CFS recommended that the juvenile court terminate
Mother and Father’s parental rights and select a permanent plan of adoption for the
children. CFS reported that Ju.P. was almost age 12, M.P. was almost age 10 and N.P.
was age 2. The children had been placed with maternal grandparents for nearly two years
and “appear[ed] comfortable and well-adjusted to the home environment.” Both maternal
grandparents expressed that they had an emotional bond with the children and further
expressed their desire to adopt the children. A social worker interviewed both Ju.P. and
M.P. regarding the prospect of adoption. M.P. stated she felt “‘relieved’” by the prospect
that she might be adopted by her maternal grandparents, and Ju.P. expressed that she
would prefer permanent adoption if she could not be fully returned to her parents’
custody.
5
CFS also filed a final additional information report on the date of the
section 366.26 hearing. CFS reported that Mother had recently been arrested and charged
with inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) as the result of
a domestic violence incident involving Father. CFS also reported that during a
supervised visit the week prior to the hearing, Mother appeared to engage in an argument
with M.P. in which mother made disparaging comments regarding maternal
grandmother’s ability to care for the children and M.P. verbally defended her maternal
grandmother in response.
4. Bonding Study
According to the bonding study, a clinical psychologist documented her
observations during a single supervised visitation session between Mother and the
children. Based upon these observations, as well as the review of various reports, the
psychologist opined that the children “engage in healthy attachment behaviors toward
Mother”; that “[o]verall, the interactions between Mother and her children were positive,
playful, reciprocal, and appropriate”; and that “severing contact could be detrimental”
“[e]ven if not immediately destabilizing.”
5. Live Testimony by Parents
Mother testified she had consistently participated in visits and had positive
interactions with the children during visits. Prior to removal, Mother took the children to
school, assisted with homework, accompanied them to recreational activities, and took
them to medical appointments. When asked to describe what harm she believed the
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children would suffer if the juvenile court were to terminate parental rights, Mother stated
only: “Every child needs their parent. I know they need them in a healthy way.”
On cross-examination, Mother was asked to specifically describe what special
educational needs had been identified for her children, but she provided only generalized
statements in response.3 Mother also admitted that she continues to reside in the same
home as Father, despite the fact that her inability to reunify was in part due to ongoing
domestic violence between them.4
Father testified that he had maintained consistent visitation with the children
during the dependency proceedings. He admitted that at one point the family had
progressed to unsupervised visitation but reverted back to supervised visits after he tested
positive for controlled substances. Father testified that he felt bonded with the children,
the children displayed affection towards him, and the children called him “Dad.”
6. Findings and Order
After the presentation of evidence, the parties argued only whether the parental-
benefit exception set forth in section 366.26, subdivision (c)(1)(B)(i), applied such that
selection of a permanent plan other than adoption was appropriate. Following argument,
3 Specifically, Mother was asked: “Can you describe to me what is [sic] the specifics of the IEP [individualized education program] or generally what’s in the IEP?” Mother responded: “In class, [M.P.]’ll get pulled out for certain amount of hours per week to help her needs and her goals and what they need to help her with to meet those goals.”
4 Mother was specifically asked about an incident related to N.P.’s birthday party that was detailed in the reports submitted to the juvenile court and admitted that contributed to her inability to reunify.
7
the juvenile court found that both parents had maintained regular visitation and contact
with the children and both parents had established the existence of a substantial positive
relationship with their children. However, the juvenile court found that the parents had
failed to establish that any detriment that could be suffered by terminating parental rights
outweighed the benefits of adoption.
Specifically, the juvenile court explained: “In this particular case, based on the
whole history of the case and the continued domestic violence that has essentially
continued throughout this whole case, including in front of the children, that the benefits
of adoption and the stability of the grandparent’s home, keeping the sibling relationship
together, and any sibling relationship they have with any of their siblings who have
already been adopted, that that stability in comparison with the instability based on the
parents[’] ongoing domestic violence, that it far outweighs any detriment the kids would
suffer. And the two older children have been consulted and wish to be adopted.”
The juvenile court ordered the termination of Mother and Father’s parental rights
and selected a permanent plan of adoption for the children. Mother and Father appeal
from the order terminating their parental rights.
III. DISCUSSION
The only claim of error asserted on appeal is that the juvenile court abused its
discretion in determining that the parental-benefit exception set forth in section 366.26,
subdivision (c)(1)(B)(i), did not apply. We conclude that the record does not show an
abuse of discretion and affirm the order.
8
A. General Legal Principles and Standard of Review
“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and
implement a permanent plan for the child.’ [Citations.] To guide the court in selecting
the most suitable permanent arrangement, the statute lists plans in order of preference and
provides a detailed procedure for choosing among them. [Citation.]” (In re Caden C.
(2021) 11 Cal.5th 614, 630 (Caden C.).) “Where possible, adoption is the Legislature’s
preferred permanent plan . . . ‘“ . . . because it gives the child the best chance at [a full]
emotional commitment from a responsible caretaker.”’” (In re Andrew M. (2024) 102
Cal.App.5th 803, 814 (Andrew M.).)
“However, there are several exceptions to this rule. [Citation.] One such
exception applies if ‘[t]he court finds a compelling reason for determining that
termination would be detrimental to the child’ because ‘[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.’” (In re L.A.-O. (2021) 73 Cal.App.5th 197, 206 (L.A.-O.).) “[T]o
establish the parental-benefit exception, a parent must prove three elements: ‘(1) regular
visitation and contact, and (2) a relationship, the continuation of which would benefit the
child such that (3) the termination of parental rights would be detrimental to the child.’
[Citations.]” (Ibid., italics omitted.)
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The juvenile court’s determination regarding the parental-benefit exception is
reviewed under a hybrid standard of review. (Andrew M., supra, 102 Cal.App.5th at
p. 815; Caden C., supra, 11 Cal.5th at pp. 640-641.) “‘The first two elements involve
factual determinations to which the substantial evidence standard of review applies.
[Citation.] The final step, determining whether termination of parental rights would be
detrimental to the child, is reviewed for abuse of discretion.’” (Andrew M., at p. 815;
L.A.-O., supra, 73 Cal.App.5th at p. 206.) An abuse of discretion occurs when the
juvenile court makes “‘“‘“an arbitrary, capricious, or patently absurd determination”’”’”
(L.A.-O., at p. 207) such that “‘“no reasonable person could agree with it.”’” (Andrew
M., at p. 815.)
B. Application
In this case, the juvenile court found that Mother and Father had established the
first two elements of the parental-benefit exception to termination of parental rights and
parents do not challenge these findings on appeal. Instead, parents contend only that the
juvenile court abused its discretion in determining that termination of parental rights
would not be detrimental to the children. We disagree.
The juvenile court’s determination with respect to the third factor of the parental-
benefit exception to termination of parental rights is a “subtle, case-specific inquiry” that
seeks to determine whether “the benefit of placement in a new, adoptive home
outweigh[s] ‘the harm [the child] would experience from the loss of [a] significant,
positive, emotional relationship with [the parent].’” (Caden C., supra, 11 Cal.5th at
10
p. 633.) In this case, the record discloses numerous factors that weighed in favor of
finding that termination of parental rights would not, on balance, be detrimental to the
children.
First, CFS documented repeated, ongoing domestic violence between parents.
One such incident disrupted N.P.’s birthday celebration which was captured on an audio
recording and another argument involved Mother directly arguing with M.P.5 Thus, the
record not only shows that parents had not resolved the issues that led to dependency, but
also that these unresolved issues could continue to negatively impact the children.
Potential ongoing negative effects from unresolved domestic violence is a factor that may
weigh against finding detriment from severance of the parental relationship. (Caden C.,
supra, 11 Cal.5th at pp. 637-638; In re Katherine J. (2022) 75 Cal.App.5th 303, 321-322
[ongoing substance abuse and domestic violence in the home diminishes the potential
benefits a child may have from maintaining a parental child relationship]; In re A.L.
continued struggles with substance abuse to the extent it impacts the quality of any
potential ongoing relationship with parent].)
5 On the audio recording, the parents were heard yelling and cursing at each other and Ju.P. yelled at them to stop arguing. Father was apologetic about the incident. Mother was hostile and upset at the social worker when she was interviewed about the incident. Mother made veiled threats to the social worker by repeatedly saying, “‘that is why social workers get hurt.’”
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Second, N.P. was only two years of age at the time of the hearing and had been
placed with maternal grandparents for almost the entirety of his life. The fact that a child
is “very young and never lived with the parents” and “his only interactions with them
were during hours-long visits” is a factor that weighs against finding detriment. (Andrew
M., supra, 102 Cal.App.5th at pp. 818-819.) While Ju.P. and M.P. were older and had
lived with both parents prior to the dependency, both expressed a desire or willingness to
be adopted when interviewed by social workers. Contrary to Mother’s contention that
this constituted an improper factor, this court has held that a dependent child’s expressed
desire to be adopted is a factor that can be considered when determining whether a child
will suffer detriment from severance of a parental relationship. (In re I.E. (2023) 91
Cal.App.5th 683, 693-694 (I.E.).)
Third, although CFS documented appropriate and affectionate interaction between
parents and the children during visits, the children did not have difficulty separating from
parents when visits ended. The relative ease with which a child can be separated from a
parent after visits is a factor that weighs against finding detriment. (A.L., supra, 73
Cal.App.5th at pp. 1158-1159.)
Finally, CFS documented that the children had positive emotional bonds with
maternal grandparents and were well adjusted in their prospective adoptive home. The
existence of positive emotional bonds with a prospective adoptive family may be
considered as a factor that weighs against a finding of detriment. (See In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1342 [“the juvenile court did not abuse its discretion by
12
considering the child’s bond with his prospective adoptive parents or comparing this bond
with the bonding between [the child] and his father”]; In re Dy.P. (2022) 76 Cal.App.5th
153, 168 [recognizing that a child can have emotional bonds to parents and caregivers
and suggesting the juvenile court must balance these considerations instead of merely
determining who has a primary bond].)
On appeal, Mother argues that the bonding study constitutes evidence weighing in
favor of finding that severance of the parental relationship would be detrimental. We do
not disagree. Indeed, the record shows that the juvenile court considered the bonding
study, credited it as evidence that could support a finding that termination of parental
rights could be detrimental, but ultimately determined that it did not outweigh the other
factors suggesting that adoption would be more beneficial. However, under our
applicable standard of review, a reviewing court is not authorized to “‘substitute its own
judgment as to what is in the child’s best interests for the trial court’s determination in
that regard.’” (Caden C., supra, 11 Cal.5th at p. 641.) And we cannot conclude that the
juvenile court’s determination was arbitrary, capricious, or patently absurd given the
numerous factors we have already identified that weighed against a finding that
termination of parental rights would be detrimental to the children.
Finally, we briefly address Mother’s contention that the juvenile court relied on
improper factors by improperly considering preservation of the sibling relationships. We
disagree with this characterization of the record. In referencing sibling relationships, the
juvenile court did not profess to be motivated by a desire to maintain any specific sibling
13
relationship. Instead, the juvenile court made clear that it was comparing the emotional
stability that the children derived from their relationships in comparison to the instability
derived from their relationship with parents.6 This is not improper. The juvenile court’s
weighing process should seek to determine “what life would be like for the child in an
adoptive home without the parent in the child’s life.” (Caden C., supra, 11 Cal.5th at
p. 633.) This includes considering the extent to which the stability offered by a new
home “may alleviate the emotional instability” caused by separation with a parent and the
extent to which a new home may provide “a new source of stability that could make the
loss of a parent not, at least on balance, detrimental.” (Id. at p. 633; see I.E., supra, 91
Cal.App.5th at p. 693 [not improper to consider the extent to which a dependent child has
adjusted to a prospective adoptive home and the emotional attachments the child may
have to that home].) Here, the juvenile court could reasonably consider that any potential
emotional instability caused to the children by a separation from the parents may well be
alleviated by the source of stability offered by new prospective parents and their siblings.
Thus, comparing the emotional stability offered by the prospective adoptive home with
6 Specifically, the juvenile court’s mention of sibling relationships was bookended by its express reference to stability, stating: “the benefits of adoption and the stability of the grandparent’s home, keeping the sibling relationship together, and any sibling relationship they have with any of their siblings who have already been adopted, that that stability in comparison with the instability based on the parents[’] ongoing domestic violence, that it far outweighs any detriment the kids would suffer.”
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the relative instability of the parental relationship does not constitute consideration of an
improper factor.7
Because the record discloses numerous factors upon which the juvenile court
could and did rely to conclude that any detriment posed by termination of parental rights
would not outweigh the benefits of stability in an adoptive home, we cannot say that the
juvenile court abused its discretion in reaching this conclusion. Where the record shows
that the juvenile court’s determination did not exceed the bounds of reason, we have no
basis to reverse its order.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
CODRINGTON Acting P. J.
MENETREZ J.
7 We acknowledge that “[w]hen it weighs whether termination would be detrimental, the [juvenile] court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s).” (Caden C., supra, 11 Cal.5th at p. 634.) However, consideration of a dependent child’s emotional attachments to the extent they may provide stability in a child’s life and minimize any detriment from severance of a parental relationship does not constitute a comparison of the parents’ capabilities as custodial caretakers.
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AI Brief
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Holding. The juvenile court did not abuse its discretion in declining to apply the parental-benefit exception to the termination of parental rights, as the court reasonably determined that the benefits of adoption and the stability of the children's current placement outweighed any detriment from the loss of the parental relationship.
Issues
Did the juvenile court abuse its discretion by failing to apply the parental-benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)?
Did the juvenile court improperly consider sibling relationships when weighing the detriment of terminating parental rights?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the juvenile court found that the parents had failed to establish that any detriment that could be suffered by terminating parental rights outweighed the benefits of adoption.”
“we cannot conclude that the juvenile court’s determination was arbitrary, capricious, or patently absurd given the numerous factors we have already identified that weighed against a finding that termination of parental rights would be detrimental”