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In re C.N. CA4/2 (2014) · DecisionDepot
/ California Court of Appeal In re C.N. CA4/2 Unpublished Filed 7/31/14 In re C.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.N. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E060422 Plaintiff and Respondent, (Super.Ct.No. RIJ1100659)
v. OPINION
S.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
1
In this appeal, S.M. (mother) appeals from orders terminating her parental rights
as to her six children. Mother contends the juvenile court’s conclusion, that the “benefit
exception” under Welfare and Institutions Code1 section 366.26, subdivision (c)(1)(B)(i),
did not apply to prevent the termination of her parental rights, is not supported by
substantial evidence. Instead, she contends the record contains substantial evidence that
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
she did maintain regular visitation with her children, and the children would benefit from
a continued parental relationship. We conclude the record does support the juvenile
court’s orders, and the court did not abuse its discretion by finding that the benefit
FACTS AND PROCEDURAL HISTORY A. Section 300 Petition and Background to Jurisdictional Hearing
On May 9, 2011, the Riverside County Department of Public Social Services
(DPSS) filed a petition alleging mother and father2 failed to supervise or protect their first
five children, and the children were dependants of the court under section 300,
subdivision (b). In particular, DPSS alleged the parents: (1) failed to adequately provide
the children with medical and dental care; (2) failed to immunize some of the children,
which resulted in their inability to attend school; and (3) failed to insure that some of the
1 All additional undesignated statutory references are to the Welfare and Institutions Code.
2 Father is not a party to this appeal.
children, already enrolled in school, actually attended school. DPSS also alleged that
father used controlled substances such as marijuana.
In a report prepared for the detention hearing, the social worker reported that in
April 2011, she responded to a referral about alleged general neglect and physical abuse.
The referring party said the parents hit the children with their hands or a shoe; pulled the
children by the hair; and would not get up with the children or feed them until the
afternoon. It was further alleged that the home was filthy, the older children were not
attending school regularly, and the children were left without adequate supervision while
father played video games and/or smoked marijuana.
The social worker attempted to visit C.N. and D.N. at their elementary school, but
was informed the children were absent. The social worker learned that C.N. had been
absent 19 days since the beginning of the school year and tardy 11 times; D.N. had
missed 31 days and had been tardy 18 times. School records indicated that D.N. had
missed eight days of school in October 2010 because his immunization records were
incomplete. A school official told the social worker that it took the parents that many
days to get D.N. the immunizations required. The same day the social worker visited the
children’s school, an anonymous call to the child abuse reporting line alleged that the
children were not attending school because the parents did not want to get up in the
morning and take them to school. It was also reported that the children were looking for
The following day, the social worker visited C.N. and D.N. at school. D.N. denied
his parents hit or spanked him. Additionally, he told the social worker that he did not
attend school because “his parents just will not take him to school.” C.N. told the social
worker that he does not eat dinner at home, but that he eats cereal after school. The next
day, the social worker spoke to C.N.’s teacher, who said that when she spoke to C.N.
about his attendance, he replied, “my dad wouldn’t get up.”
During an unannounced visit to the parents’ home, father told the social worker it
was “too hard” for him to take the children to school because he and mother had only
recently purchased a vehicle, he worked late nights, and he had a hard time getting up
early. Father assured the social worker that things would improve now that he had a
vehicle. Father admitted that he had disciplined the children by spanking them with a
belt and by making the children kneel for a few minutes. However, father denied that he
and mother would not get up in the morning to feed the children breakfast. Father
indicated that he had not used marijuana “since last year.” The social worker informed
father that he and mother would have to take a drug test that same day. Father tested
positive for the presence of marijuana. Mother tested negative for controlled substances.
The children’s paternal grandmother and aunt told the social worker that they
worried about the children. They said father would hit the children on their heads with
his knuckle and called them stupid. The aunt said the parents constantly fought, and
mother would simply leave the home without the children. She also reported that the
parents threatened to beat the children if they told anyone about the fights. The aunt and
grandmother also told the social worker that father stayed up late at night playing video
games, he would not get up in the morning to feed the children breakfast, and he used
marijuana and possibly methamphetamine. Although they denied that mother used drugs,
the aunt and grandmother told the social worker that mother would not get up in the
morning to feed the children either.
Mother told the social worker that she suffered from seizures and had multiple
doctor appointments. She explained it was difficult to take the children to school without
a vehicle. Mother also said that she and father did not discipline the children. If the
children misbehaved, they would merely tell them “no.” She also told the social worker
that the children have a balanced meal for dinner every night, and that the children eat
cereal before going to bed because “milk helps them sleep.” During a visit to the home
two days later, the social worker told mother about father’s positive drug test. Mother
denied that father used marijuana in the home, but added that she does not know what he
does when he is away. Father came home during the visit. He was surprised by his
positive drug test and again denied using marijuana.
The social worker reported three of the children were behind on their
immunizations, all of the children were behind in their medical and dental care, and the
children did not appear to be adequately fed. Nonetheless, the social worker concluded
that the children could safely remain in the home if the parents were provided with
appropriate services. The social worker recommended the juvenile court find that the
children came within the meaning of section 300, that the children not be detained, and
that the parents be provided with services conditioned on drug testing.
At a detention hearing, the juvenile court made a prima facie finding that the
children came within the meaning of section 300, subdivision (b), ordered that the
children remain in the custody of the parents, and set a jurisdictional hearing. At the
jurisdictional hearing, the juvenile court declared the children to be dependants of the
court pursuant to section 300, subdivision (b), again ordered that the children remain in
the custody of parents, and set a review hearing.
B. Background to Section 387 Petition to Remove Children from the Parents’
In a status review report, a newly appointed social worker reported that mother
had not maintained a stable home for the children during the review period. The
children’s paternal grandmother had accused mother of not properly caring for the
children and eventually asked mother to leave the home. Mother and the children moved
in with the children’s maternal grandmother, but the social worker reported that the home
was infested with cockroaches and was not stable for the children. The social worker
received constant complaints from relatives that the children were not in school and that
mother was not feeding the children.
During the review period, the parents failed to take C.N. to school every day and
the school was in the process of completing a Student Attendance Review Board (SARB)
referral. C.N.’s teacher told the social worker that C.N. had poor grades because of his
lack of attendance, and that he would probably be an average or above-average student if
his attendance improved. On October 12, 2011, the social worker called mother at
9:00 a.m. and learned that the children were still sleeping and not in school. During a
home visit, C.N. told the social worker that he wanted to go to school because he likes to
learn and see his friends. The social worker also reported that D.N. and A.N. had poor
attendance at school, and school officials were in the process of completing SARB
referrals for them as well.
The social worker reported that mother had not made any progress toward
completing her case plan and had failed to utilize the services available to her. However,
the social worker did recommend that mother continue to receive maintenance services
and that the children should continue to be in mother’s custody.
In an addendum report filed before a review hearing, the social worker reported
that mother had made some progress toward completing her case plan. The social worker
learned from school officials that the SARB referrals for the children had been
completed, and school officials had scheduled meetings with the parents. When the
parents did not respond or appear for the meetings, the matter was referred to the district
attorney’s office to place the parents on a three-month attendance watch list.
At a review hearing conducted on February 9, 2012, the juvenile court found that
the children were still dependants of the court under section 300, and family maintenance
On March 29, 2012, DPSS filed a supplemental petition under section 387 alleging
that the parents had failed to comply with their case plan. DPSS requested that the
juvenile court order the children placed with their paternal grandmother. According to
the petition, the parents had engaged in domestic violence in the presence of the children,
they had failed to maintain proper dental care for the children, and they had not been
successful at making sure the children attended school regularly. In a detention report
filed the same day, the social worker reported that she spoke to C.N. during a visit to the
home. She was told that C.N. had been living with his paternal grandparents for
“a while,” and he liked living there because his grandmother woke him up in the
morning, fed him breakfast, and took him to school. Before living with the grandparents,
C.N. told the social worker that he had been living at “Tia’s house” and sleeping on the
living room floor. C.N. said that he wanted to stay with his grandmother, and asked the
social worker to “please, please tell my mom and dad that.” D.N. also told the social
worker that he wanted to stay at his grandmother’s house because his grandparents did
not fight like his parents did.
At one point, mother took the three youngest children with her to live with her
sister-in-law and left C.N. and D.N. with their paternal grandmother. She wanted to live
with all five children at the grandparents’ house, but the grandmother was no longer
willing to allow mother to live there. The social worker talked to mother about her
transient lifestyle, after which mother agreed that the best situation for the children would
be for them to live with their paternal grandparents while she worked on her case plan.
The social worker therefore took the children into her custody and placed them with their
The juvenile court made a prima facie finding that the children came within the
meaning of section 387, found the children were at a substantial risk of suffering physical
or emotional harm if they remained in the parents’ custody, and ordered the children
detained. The court placed the children in the temporary custody of their paternal
grandparents, ordered reunification services, and authorized supervised visits for the
In a jurisdiction/disposition report filed in support of the section 387 petition, the
social worker reported that, since being placed with their grandparents, the children had
perfect school attendance, with C.N. appearing tardy only once. The social worker
reported that the children were bonded with their paternal grandparents, having spent a
lot of time with them over the years. The children adjusted well to their placement in the
grandparents’ home, and the grandparents reported that the children were happy and at
The social worker reported that she had attended a supervised visit at a park
between the parents and the children, and observed that the parents and children
interacted positively. The parents failed to appear for a later visit, due to
miscommunication with the grandparents, so the social worker referred them for weekly
visits at the DPSS office. As of the April 30, 2012, jurisdiction/disposition report, mother
had not made any progress toward completion of her case plan. The social worker also
reported that the paternal grandmother was willing and able to adopt the children if the
parents did not reunify with them.
At the hearing on the supplemental petition conducted on April 30, 2012, the
juvenile court found that the children came within the meaning of section 387, and it
sustained the petition. The children were determined to be dependants of the juvenile
court, and the court indicated their current placement with the grandparents was
appropriate. The court also ordered reunification services for the parents and continued
C. New Petition and Termination of Reunification Services In a six-month status review report filed on October 17, 2012, the social worker
reported that mother continued to live a transient lifestyle and was not consistent in
taking her seizure medication. The children continued to do well in their placement, and
their school attendance was good. Mother made adequate though incomplete progress
toward her case plan and visited the children regularly. The social worker also reported
On March 14, 2013, DPSS filed an amended petition alleging that newborn J.N.
was a dependant of the court within the meaning of section 300, subdivisions (b) and (j),
and alleged the parents had not complied with their case plan and had failed to reunify
with the other children. DPSS also alleged that mother had unresolved mental health
issues and refused to participate in or consent to appropriate treatment. Further, mother
had engaged in criminal activities and had an outstanding arrest warrant.
In a status review report, the social worker recommended services to the parents
be terminated and requested the juvenile court set a hearing for selection of a permanent
placement, pursuant to section 366.26. The social worker reported the children continued
to do well in school and in their placement with the paternal grandparents. However,
C.N. told the social worker that he wanted to “go home.” C.N. and D.N. were in therapy
for issues related to loss and abandonment. Mother failed to utilize medical and
reunification services, and she had failed to complete her case plan. The parents visited
with the children twice a week, helped them with their homework and chores, and had
attended C.N., D.N., and A.N.’s weekend soccer games. The paternal grandmother
reported the visits went well.
On March 15, 2013, the juvenile court made a prima facie finding that J.N. was a
dependant of the court under section 300, subdivisions (b) and (j), and ordered him
detained. In a jurisdiction/disposition report prepared for the amended petition, the social
worker reported that J.N. had been placed with his paternal grandparents and siblings.
In an addendum report filed on April 19, 2013, the social worker recommended
that (1) the juvenile court sustain the amended petition and find J.N. to be a dependant of
the court under section 300, subdivisions (b) and (j); (2) family reunification services not
be offered to the parents with respect to J.N.; and (3) services should be terminated as to
the other children. The court set a hearing under section 366.26 to choose an appropriate
permanent placement for the children.
The social worker reported the parents had regularly visited the children twice a
week, and again noted the visits went well. However, after J.N. was placed in the
grandparents’ home and visitation was increased to two extra hours a day, both the
parents and grandparents complained about visits. A family member told the social
worker that father would get angry at the grandmother if she did not drive him to the
visits or loan him her vehicle. C.N. told the social worker, “[the parents] don’t come
when they say. They lie to us.” When asked about this, the parents told the social
worker it was difficult for them to visit because they had to take the bus and they were
busy completing their services. The grandmother again expressed her willingness and
desire to adopt the children. Finally, the social worker reported that the children
continued to do well in their placement, and they were receiving appropriate care.
On May 1, 2013, the juvenile court found that J.N. was a dependant of the court
under section 300, subdivisions (b) and (j), and it sustained the petition. The court further
ordered that J.N. was to remain in the custody of his grandparents. The court also denied
reunification services and set a hearing under section 366.26 for the permanent placement
of J.N. The court then terminated reunification services for the remaining children and
set a hearing under section 366.26 for selection of their permanent placement.
D. Background to Section 366.26 Hearing and Termination of Parental Rights
In a report filed for the section 366.26 hearing, the social worker reported that
C.N. said he wanted to stay with his grandmother and was angry at his parents because
they would tell him they were coming to visit and then not show up or call. C.N.’s
therapist told the social worker that C.N. continued to have issues related to loss and
abandonment. D.N. also continued to receive therapy for similar issues. The social
worker reported that all six children had adjusted well to their placement with the
grandparents and had demonstrated a healthy attachment to them. The social worker also
reported the children were affectionate with the grandparents, and the grandparents
continued to meet the needs of the children and provided a loving family life. The
grandparents also informed the social worker that they were ready to move forward with
With respect to adoptability, the social worker concluded the children were likely
to be adopted, but reported C.N. appeared confused about whether he wanted to be
adopted or not. C.N. enjoyed a loving relationship with his parents and with his
grandparents, as well as with his extended family. The social worker reported that C.N.,
D.N., and A.N. complained that the parents failed to show up for visits, which affected
the children emotionally. During a visit on May 15, 2013, the social worker observed
mother; mother did not go to or hold J.N. the whole time the parents visited the children.
C.N. told the social worker he was worried he might have to go back to living with his
parents. The following month, the grandmother told the social worker that the parents
had only been visiting once a week and, most of the time, they would fail to show up.
The social worker recommended that visitation be reduced to once a month to reduce the
trauma to the children from missed visits. At a hearing conducted on August 29, 2013,
the juvenile court adopted the social worker’s recommendation and reduced visitation to
In an addendum report, the social worker reported the children had been living
with their grandparents for 20 months and were well adjusted in their new home. During
visits, the social worker observed the grandparents showing love and attention to the
children. Although the children were adjusting well, C.N. showed some resistance to
staying permanently with his grandparents, and he continued to express his hope that
father would find a home so the children could live with him. When C.N. told the social
worker he worried about not being able to spend time with his parents, she told him that
his adoption by his grandparents would not end his relationship with his parents. The
other children told the social worker they liked living with their grandparents. When the
children were told adoption by their grandparents would mean they would live there for a
long time, they expressed their desire to continue living with their grandparents. The
social worker also reported the grandparents had a strong and close bond with the
In a final addendum report, the social worker reported the parents’ visitation
continued to be sporadic and, as a result, the children suffered.
On January 13, 2014, mother filed petitions under section 388 requesting the court
set aside its orders terminating reunification services and setting a section 366.26 hearing.
She also requested the court grant her additional reunification services. The juvenile
court summarily denied the petitions.
During the section 366.26 hearing on January 14, 2014, counsel for mother asked
the juvenile court to consider guardianship for the children instead of adoption. Counsel
relied on the benefit exception, contending C.N.’s resistance to adoption and his hope to
reunify with his parents showed that a close bond existed. Counsel also argued that
mother had maintained visitation with the children. The juvenile court interjected that
mother had only visited occasionally and added that the visits were inconsistent.
Nonetheless, counsel argued that mother’s visits had been regular when they were
scheduled at the grandparents’ home, and that termination of parental rights would be
detrimental to the children because of the strong bond between them. Father’s counsel
also argued that the benefit exception applied. Counsel asked that the juvenile court
inform the grandmother that she had the discretion to allow continued visitation with the
parents if father’s parental rights were terminated. Mother’s counsel joined in the latter
request, and both minors’ counsel and counsel for DPSS agreed that the court could
permit appropriate visitation after the adoptions.
The juvenile court found that the benefit exception in section 366.26,
subdivision (c)(1)(B), did not apply because visitation with the parents was inconsistent
and at times inappropriate, and because termination of parental rights would not be
detrimental to the children. The court therefore terminated mother and father’s parental
rights. The court authorized appropriate visitation at the discretion of the social worker
and caregivers until the adoptions were finalized.
DISCUSSION “Section 366.26 provides that if parents have failed to reunify with an adoptable
child, the juvenile court must terminate their parental rights and select adoption as the
permanent plan for the child. The juvenile court may choose a different permanent plan
only if it ‘finds a compelling reason for determining that termination [of parental rights]
would be detrimental to the child [because]: [¶] (i) 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).)” (In re Marcelo B. (2012) 209 Cal.App.4th
“Regular visitation exists where the parents visit consistently and to the extent
permitted by court orders.” (In re I.R. (2014) 226 Cal.App.4th 201, 212, citing In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1537.) “‘Sporadic visitation is insufficient to
satisfy the first prong . . .’ of the exception.” (In re Marcelo B., supra, 209 Cal.App.4th
at p. 643, quoting In re C.F. (2011) 193 Cal.App.4th 549, 554.)
Mother contends she regularly visited the children from the time they were
detained, and argues her visits only tapered off somewhat after the birth of J.N. The
uncontested reports in the record support the juvenile court’s conclusion that mother’s
visits were inconsistent and at times inappropriate.
Soon after the children were removed from the parents’ custody, mother missed a
supervised visit at a park, perhaps due to miscommunication with the grandparents.
Although in the status review report filed March 14, 2013, the social worker reported the
parents had been visiting the children twice weekly, helped them with their homework,
and watched the children’s soccer games on weekends, the next month she reported the
parents had problems getting to the visits after they were increased two hours each day.
Moreover, C.N. told the social worker that the parents had lied to the children about
coming to visit. In a report filed for the section 366.26 hearing, the social worker again
reported C.N., D.N., and A.N. complained that their parents promised to come for visits
but failed to show up, which affected them emotionally. During one visit, the social
worker noted mother did not attempt to hold J.N. during the entire visit. As a result of
the trauma to the children from the missed visits, the juvenile court adopted the social
worker’s recommendation and reduced visitation to once a month. And in her final
addendum report, the social worker reported the parents’ visitation continued to be
sporadic, and the children were suffering as a result. On this record, we cannot agree
with mother that her visits were consistent.
Even if we were to conclude that the record shows mother visited the children
consistently, the record supports the juvenile court’s conclusion that termination of
parental rights will not be detrimental to the children.
The appellate courts are divided on the appropriate standard of review of the
juvenile court’s conclusion that the benefit exception does not apply. Some courts have
applied the abuse of discretion standard while others have applied the substantial evidence
test. (See In re Scott B. (2010) 188 Cal.App.4th 452, 469.) Recently, some courts have
taken a middle approach, applying the substantial evidence test to the juvenile court’s
factual finding of whether there exists a beneficial parent-child relationship, and applying
the abuse of discretion standard to the juvenile court’s “‘“quintessentially” discretionary
decision’” that termination of parental rights will not be detrimental to the child. (In re
K.P. (2012) 203 Cal.App.4th 614, 621-622, quoting In re Bailey J. (2010) 189
Cal.App.4th 1308, 1315.) We need not decide which approach is correct because under
either standard the juvenile court did not err.
In re Autumn H. (1994) 27 Cal.App.4th 567, is the seminal case regarding
exceptions to the preference for adoption. There, the court held that parent-child
relationships that can prevent termination of parental rights are ones that promote
“. . . 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 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.” (Id. at p. 575.)
“The 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-
Adoption cannot be thwarted simply because a child would derive some benefit
from continuing the parent-child relationship, and adoption should be ordered when the
court finds that the relationship maintained through visitation does not benefit the child
significantly enough to outweigh the strong preference for adoption. (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.) The juvenile court may reject a parent’s claim
simply by finding that the relationship maintained during the visitation does not benefit
the child significantly enough to outweigh the strong preference for adoption. To apply
the exception, the court must find compelling reasons to apply the exception. Only in an
extraordinary case will the preservation of parental rights prevail over the Legislature’s
preference for adoption. (Ibid.)
As mother contends, the record demonstrates the children have a loving
relationship with their parents. However, the record does not demonstrate that the
children are so strongly bonded to mother that termination of her parental rights would
be detrimental to the children. No bonding study was conducted. The record shows that
C.N. and D.N. had emotional issues of loss and abandonment because the parents would
promise to visit the children, but failed to show up, not because of the prospect of being
unable to live with their parents. In contrast, the record contains ample evidence that the
children adjusted well during their 20-month placement with the grandparents before the
section 366.26 hearing, and the children had formed a strong and loving bond with the
Mother contends that C.N.’s confusion about whether or not he wanted to be
adopted is evidence that termination of her parental rights would be detrimental to the
children. True, C.N. expressed his hope that he would be reunited with his parents, but this
must be balanced against C.N.’s statements to the social worker that he was happy living
with his grandparents and wanted to stay there because they provided him with a caring
and loving home, and they made sure he got to school every day. Indeed, C.N. told the
social worker he was worried that he might have to go back with his parents. Therefore,
we conclude the record supports the juvenile court’s conclusion that termination of parental
rights would not be detrimental to the children, and we find no abuse of discretion.
Finally, relying on In re C.B. (2010) 190 Cal.App.4th 102 and In re S.B. (2008)
164 Cal.App.4th 289, mother contends the juvenile court improperly relied on the
prospect of continued visitation after adoption when concluding that termination of
parental rights would not be detrimental to the children. We are not persuaded. The
juvenile court properly concluded that the children would not benefit from a continued
parental relationship with mother when it terminated her rights. Only at the end of the
hearing did the court order that the social worker and grandparents had discretion to
permit the parents to visit with the children pending finalization of the adoptions.
Nothing in the record suggests, let alone establishes, that the prospect of continued
visitation with the parents “backboned” the juvenile court’s decision. In fact, mother’s
argument is inconsistent because, as she concedes, although the juvenile court ordered
that the grandparents would be given preference over other prospective adoptive parents,
there was no guarantee the grandparents would end up being the adopted parents. Even if
the grandparents were willing to allow continued visits, other prospective adoptive
parents might not be so generous.
III.
DISPOSITION
NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.