California Court of Appeal Aug 25, 2020 No. E074713Unpublished
Filed 8/24/20 In re C.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.O. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E074713
Plaintiff and Respondent, (Super.Ct.Nos. J281549, J281550 & J281551) v. OPINION C.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County
Counsel, for Plaintiff and Respondent.
1
I
INTRODUCTION
C.B. (Mother) and C.O.-N. (Father)1 have a history of domestic violence, abusing
drugs, and neglecting their three daughters: 11-year-old M.O.-B., nine-year-old C.O.-B.,
and three-year-old C.O. As a result, the San Bernardino County Children and Family
Services (CFS) removed their children from their custody and the parents were offered
reunification services. Following numerous attempts to reunify with her children,
Mother’s services were terminated and a Welfare and Institutions Code2 section 366.26
hearing was set.
At the contested section 366.26 hearing, the juvenile court found Mother failed to
meet her burden of proof in demonstrating the parental benefit exception (§ 366.26,
subd. (c)(1)(B)(i)) to termination of parental rights, terminated the parents’ parental
rights, and freed the children for adoption. Mother appeals from the juvenile court’s
order terminating her parental rights. On appeal, Mother argues the juvenile court erred
in not applying the parental benefit exception. We conclude the juvenile court did not err
and affirm the order terminating Mother’s parental rights.
1 Father is not a party to this appeal.
2 All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
2
II
FACTUAL AND PROCEDURAL BACKGROUND3
A. Prior Dependency Actions
The family is known to CFS. Mother had engaged in two formal dependency
cases and one voluntary family maintenance case. On September 2, 2012, M.O.-B. and
C.O.-B. were removed from their parents’ care due to the parents’ substance abuse, the
parents’ criminal history, Mother’s mental health, familial violence, and sexual abuse of
the children by a relative. Mother participated in reunification services and was provided
with substance abuse services, domestic violence services, parenting education, and
counseling services. Mother made substantial progress in her services and successfully
reunified with M.O.-B. and C.O.-B. in October 2013. Mother also participated in
voluntary family maintenance services from September 7 to November 21, 2016.
On August 21, 2017, M.O.-B., C.O.-B., and C.O. were removed from the parents’
custody due to the parents’ substance abuse, criminal history and domestic violence
history, and Mother’s arrest for felony child endangerment. Mother and Father were
offered family reunification services. Mother reunified with the children in July 2018
and was offered family maintenance services. Father’s services, however, were
terminated on July 30, 2018. On January 30, 2019, the juvenile court dismissed the case
3 The factual and procedural background up until the section 366.26 hearing was set is taken from this court’s nonpublished opinion in case No. E074327 (Mother’s prior appeal). (In re C.O. (June 30, 2020, E074327) [nonpub. opn.].)
3
with family law orders giving Mother custody of the children as she had successfully
completed her case plan services.
In addition, Mother has a lengthy criminal history beginning in August 2005. Her
prior criminal history includes offenses for assault with a deadly weapon in August 2005,
possession of methamphetamine in September and December 2005 and May 2006, elder
abuse in June 2006, battery against an elderly person in July 2007 and July 2008, and
child endangerment in July and November 2011, September 2012, and August 2017.
B. Current Dependency Action
The current case is the third dependency action involving Mother and Father. The
family again came to the attention of CFS on June 17, 2019, when a referral was received
alleging general neglect to the children. It was reported that the children fed themselves
while Mother was in her bedroom “‘smoking crystal’” and not attending to the children.
It was also alleged that Mother did not bathe the children as often as she should and that
she yelled, threatened, and cursed at the children when they knocked on her bedroom
door.
Mother denied the allegations but admitted using methamphetamines on June 23,
2019. She explained that she started using methamphetamines about a week ago caused
by an argument with Father and that she stopped using when she realized she was
relapsing. The children denied that Mother was using drugs and reported feeling safe and
well taken care of while with Mother. The reporting party, however, informed the social
4
worker that the children and Mother were lying and that she was concerned about the
children’s safety due to Mother’s current drug use.
On June 26, 2019, at a family team meeting, Mother admitted to using drugs and
reported using several times in June 2019 and several weeks before June 2019. An aunt,
who lived in the family home, noticed Mother’s behavior change in April 2019, which
was indicative of relapse, and Mother continued to decompensate. Mother signed a
declaration agreeing to place her daughters in protective custody. The children were
detained and placed in foster care with Mrs. L., with whom they had already been placed
during a prior dependency case.
On June 28, 2019, petitions were filed on behalf of the children pursuant to
section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j)
(abuse of sibling).4
The children were formally detained at the July 1, 2019 detention hearing. Mother
was provided with services pending the jurisdictional/dispositional hearing, visitation
once a week for one hour, and ordered to drug test.
CFS recommended the allegations in the petition be found true as amended, no
reunification services be offered to the parents, and a section 366.26 hearing be set. On
July 1, 2019, Mother tested positive for amphetamines and enrolled in an outpatient drug
program a few weeks later at Cedar House. Mother reported that she began using
4 On July 19, 2019, CFS filed amended petitions on behalf of the children, detailing the prior dependency cases, Mother’s drug use, and Father’s undetermined whereabouts.
5
methamphetamines when she was 17 years old after a physical fight with her sister and
used it continuously for 11 years until she was 28 years old. She stopped using for a
couple of years when CFS got involved and currently only uses “‘a little.’” Mother
blamed her sister-in-law for CFS’s involvement in this case and believed she had shown
significant behavioral changes since her last two cases. Mother desired to engage in
services and noted she had enrolled in parenting education classes and had attended
Alcoholics Anonymous (AA) meetings on her own.
CFS reported that prognosis for family reunification for Mother was “poor based
on her ongoing struggle with sobriety,” “neglect of the children,” and failure to benefit
from services provided to Mother on three different occasions. CFS noted Mother “has
shown she has not only failed to rehabilitate, but she has also resisted prior treatment for
this problem during a three-year period immediately prior to the filing of this petition.”
CFS recommended against providing services to Mother because she had “failed or
refused to comply with a program of drug or alcohol treatment . . . on at least two prior
occasions, even though the programs were available and accessible.”
The children were doing well in Mrs. L.’s home and were bonded to her. There
were no relatives to consider for placement and Mother wanted the children to stay with
Mrs. L. Mrs. L. reported that Mother regularly visited the children, however, during
visits, Mother told the children that they would be returning home in five months.
As of August 14, 2019, Mother continued to engage in services. She noted that
she had six more parenting education classes and four more therapy sessions and that she
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was attending Cedar House three times a week and Narcotics Anonymous (NA) meetings
three times a week. Mother tested negative for drugs on July 24, 2019.
The contested jurisdictional/dispositional hearing was held on August 21, 2019.
The juvenile court found true the allegations in the first amended petition and declared
the children dependents of the court. The court denied reunification services to the
parents pursuant to the bypass provisions of section 361.5, subdivisions (b)(10) and
(b)(13), and set a section 366.26 hearing. In support of its conclusion, the court noted
“the degree of the substance-abuse issue, the length of time of that substance-abuse issue,
and the children’s deserving permanence and stability.” The court provided Mother with
two hours supervised visitation per week with the children.
CFS recommended that the section 366.26 hearing be continued for 60 days to
allow the permanent plan of adoption to be implemented. CFS noted that due to the
children’s “significant relationship” with their foster parent, Mrs. L., it was not in their
best interest to be removed from Mrs. L.’s home. The children had been placed in
Mrs. L.’s home during the prior dependency cases and were bonded to Mrs. L. C.O. had
been placed in Mrs. L.’s care for the most of her young life and considered “her as a
mother.” The older children also called Mrs. L. “‘mom,’” considered their foster home
their home, and viewed their foster family as their family, even though the two older girls
knew Mother is their biological mother and desired to go home with Mother.
Mother continued to regularly visit the children and the visits were “relatively
appropriate.” Mother had to be reminded a few times as to what was appropriate to tell
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the children. For example, Mother had promised the children that they were going to
come home, had informed them how hard she was working to complete her classes, and
had told the older two girls to go to court and beg the judge to send them home. At times,
during once a week phone calls with the children, Mother would call the children while
she was with Father in Mexico. Father’s niece was occasionally in their care during these
phone calls. The calls upset the two older girls because they were not able to be with
Mother and Father but Mother and Father had the niece with them. These contacts also
had at times made it hard for the older girls to accept the prospective adoptive home as
their permanent home.
On December 6, 2019, less than six months since the children were removed from
her care, Mother filed a section 388 petition, seeking return of the children to her care or,
alternatively, family reunification services and liberalized visitation. In support, Mother
attached letters from Cedar House, certificates of competition, letters in support, sign-in
sheets, a letter noting Mother was seeking mental health services, and a declaration from
Mother. Mother asserted that she had completed the outpatient treatment program at
Cedar House in November 2019, she had consistently tested negative for drugs since
July 2019, and she had maintained her sobriety by enrolling in the aftercare program and
attending AA/NA meetings. She also noted that she had completed a 12-week parenting
program, eight individual counseling sessions, and was seeking mental health services.
Mother claimed that the requested order was in the best interest of the children because
8
she had consistently visited the children, there were no concerns about her visits, and
there was a strong parental bond between her and the children.
On December 6, 2019, the juvenile court denied Mother’s section 388 petition
without an evidentiary hearing, finding the request did not state new evidence or a change
of circumstances and the proposed change of order was not in the children’s best interest.
On December 11, 2019, the juvenile court continued the section 366.26 hearing
for an adoption assessment.
On December 12, 2019, Mother filed a timely notice of appeal from the juvenile
court’s order summarily denying her section 388 petition.5
The section 366.26 report dated February 10, 2020, recommended terminating
parental rights and freeing the children for adoption by Mrs. L. Due to the extensive
relationship the children had with Mrs. L. during the previous and current dependency
proceedings, and because they had maintained contact with Mrs. L. after their second
reunification with Mother, Mrs. L. was classified as a non-related extended family
member (NREFM).
The children continuously resided with Mrs. L. after their removal from their
parents in June 2019. Mrs. L. had been a part of the children’s lives since 2017, when
they were placed with her family during the prior dependency case and had not exhibited
any issues adjusting to the home. The social worker observed all three children were
5On June 30, 2020, this court affirmed the juvenile court’s order denying Mother’s section 388 petition in case No. E074327.
9
very comfortable with Mrs. L., and the children looked to Mrs. L. for their daily needs.
The social worker believed Mrs. L. took good care of the children.
Mrs. L. met the children’s emotional, medical, developmental, and educational
needs. Mrs. L. reported that all three children slept and ate well. The children enjoyed
playing with their tablets and playing in the backyard with age appropriate toys. Mrs. L.
also took M.O.-B. and C.O.-B. to counseling sessions. Mrs. L. reported that M.O.-B.
exhibited anxiety symptoms, such as rocking back and forth, fidgeting, and biting her
nails. Mrs. L. believed M.O.-B. and C.O.-B. needed more frequent therapy sessions.
In addition, Mrs. L. was attached to the children and loved them. Mrs. L. wished
to legalize her parental relationship with the children because she did not want them
moving from home to home. Permanency and stability were the key considerations for
Mrs. L. Mrs. L., therefore, was not interested in legal guardianship. Mrs. L. explained
that she “‘fel[t] like [they had] a mother-daughter relationship’” and that “[the children]
call[ed] [her] mom even when their mother [was] around.” The social worker observed
that the children clearly appeared to share a parent-child relationship with Mrs. L. and
that the children and Mrs. L. had developed a mutual attachment.
When asked about the prospect of being adopted, M.O.-B. and C.O.-B. responded
that they liked living with Mrs. L. and called her “‘mom.’” However, they also wanted to
return to Mother. M.O.-B. and C.O.-B. asserted that they wanted to stay with Mrs. L., if
they could not return to Mother. C.O. was too young to express her feelings about
adoption.
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Mother maintained consistent visits with the children during the reporting period,
and the visits were “relatively appropriate.” Mrs. L. was open to maintaining supervised
contact with Mother as long as the visits were appropriate and were in the children’s best
interest.
By February 4, 2020, CFS moved Mother’s supervised visits to a more structured
environment at the Foster Family Agency because of Mother’s continued inappropriate
comments to the children and her conduct during the visits. Mother instructed the older
children to tell the court they did not want to be adopted and to beg the judge to send
them home. Furthermore, Mother reportedly attempted to steal an item from a store at
the mall during one of the visits with the children. Mother also stated that she wanted a
maternal aunt to adopt the children. However, the phone number provided by Mother
was incorrect and the maternal aunt never contacted the social worker. CFS suspected
that Mother was attempting to convince the maternal aunt to take the children, as the
maternal aunt had never expressed interest in placement of the children with her during
any of the dependency proceedings. In addition, CFS did not believe it was in the
children’s best interest to be moved “due to the significant bond that they ha[d] with their
current foster mother who [was] now more of a NREFM to the children.”
The contested section 366.26 hearing was held on February 10, 2020. At that
time, the juvenile court heard testimony from M.O.-B., C.O.-B., and Mother. After
counsel explained the difference between legal guardianship and adoption, M.O.-B., who
was 10 years old at the time, testified that she preferred being adopted “[b]ecause it’s like
11
stable than [sic] legal guardianship.” She explained that she preferred a future that was
more stable and that she understood adoption was the best option for her. Nonetheless,
M.O.-B. also enjoyed her visits with Mother and wanted to continue to visit Mother.
During the visits, M.O.-B. recalled she would “[d]ance, talk, and sit down with
[Mother].” M.O.-B. further reported that sometimes she cried when the visits ended and
that she missed Mother. She explained that she would be “[s]ad” if she could not see
Mother anymore and that she loved Mother. M.O.-B. also testified that she called Mother
“‘mom,’” but she also called Mrs. L. “mom” because “[Mrs. L.] [took] care of us and she
lov[ed] us.” M.O.-B. recalled the recent incident at the mall where Mother shoplifted two
toys for the children and believed Mother’s conduct “[was] bad.”
On re-cross-examination, M.O.-B. stated that she would rather live with Mother in
the future than be adopted because she loved her, “was safe with her and she took care of
[the children] very well.” However, she noted that if she could not go home with Mother,
she preferred staying with Mrs. L. and being adopted.
C.O.-B. testified that Mrs. L. was “a good mom and [took] care of [the children]
good.” When asked if C.O.-B. preferred legal guardianship over adoption, the child
responded she wanted to be “[a]dopted.” C.O.-B. felt that Mrs. L. was her mom
“[b]ecause she [took] care of us, and she lov[ed] us.” C.O.-B. also reported that she had
“[g]ood” visits with Mother and believed Mrs. L. would continue to allow the children to
visit Mother after they were adopted. C.O.-B. enjoyed spending time with Mother,
hugged Mother, and cried at visits but she did not know how much time she wanted to
12
spend with Mother. C.O.-B. noted that she wanted to go home to her Mother because she
missed her and loved her. She also reported being “[s]ad” at the thought she could not
visit Mother.
On re-cross-examination, C.O.-B. testified that she wanted to live with Mother in
the future because she loved Mother, Mother “didn’t hurt [them],” and Mother fed them,
took care of them, and “did everything that [they] needed.” However, if she could not
return to Mother, she preferred to be adopted.
Mother testified that prior to the most recent, third removal, the children resided in
her custody and that she was the primary caregiver. Mother disagreed with the plan of
adoption and preferred legal guardianship. She stated that the children were attached to
her and showed their affection by sleeping with Mother and hugging her. The children
also participated in family time by watching television and movies with Mother.
Mother further explained that she maintained supervised visits with the children,
twice a week for two hours. She had supervised phone calls once a week for 10 minutes
when the case began. Mother also saw the children by means of FaceTime for five to 10
minutes once a week. Mother described M.O.-B. and C.O.-B. being “happy” during the
beginning of their visits. At the end of visits, M.O.-B. cried and wanted to go home, and
C.O.-B. did not speak but cried at least once and asked to go home during the last visit.
Mother believed C.O.-B. was happy because “she’s with a good foster lady.” Mother
hugged C.O. a lot, kissed her, and fed her. Mother stated that she loved the children and
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believed the children would suffer emotionally if they could not maintain contact with
her.
Mother believed termination of parental rights would be detrimental to the
children “[b]ecause I want to be in their life, and they⸺I want them to be with me. It’s
what they want, right⸺they want to come home.” On cross-examination, Mother
acknowledged that she had only had supervised visitation with the children and that this
was the children’s third removal.
CFS argued for termination of parental rights. The children’s counsel joined
CFS’s argument and pointed out that Mother’s role in the children’s lives was contrary to
that of a parent. Mother’s counsel believed a lesser permanent plan was appropriate
based on the parental beneficial relationship exception.
Following arguments, the juvenile court found the children were specifically and
generally adoptable. The court also found that Mother had not met her burden of
establishing the parental benefit exception, noting Mother’s testimony was not credible in
some instances. The court believed Mother had been asking the children to state they did
not want to be adopted and that they wanted to return home. The court acknowledged
that Mother and the children shared an emotional bond from which the children would
derive an incidental benefit. The court, however, concluded that was not sufficient to
establish the exception. The court further concluded that Mother failed to show severing
the natural parent-child bond would deprive the children of a substantial, positive
emotional attachment such that the children would be greatly harmed. The court
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considered the wishes of the children consistent with their ages and noted the children’s
need for permanency and stability. The court also noted that the children and Mrs. L. had
indicated Mrs. L. was willing to allow the children to maintain contact with Mother, and
Mother had testified Mrs. L. had looked after the children well and that she got along
with Mrs. L. The court thereafter terminated parental rights and freed the children for
adoption.
On February 11, 2020, Mother timely filed a notice of appeal challenging the
findings and orders made at the section 366.26 hearing.
III
DISCUSSION
Mother asserts the juvenile court erred in failing to apply the parental benefit
exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(i),
because there was substantial evidence that she maintained regular visitation with the
children and that the children would benefit from continuing the parent-child relationship.
We disagree.
The Legislature prefers adoption where possible. (In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent
bears the burden of proving one of the exceptions to terminating parental rights exists.
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) “Because a section 366.26 hearing
occurs only after the court has repeatedly found the parent unable to meet the child’s
needs, it is only in an extraordinary case that preservation of the parent’s rights will
15
prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.)
The parental benefit or beneficial relationship exception applies where “‘[t]he
parents . . . have maintained regular visitation and contact with the minor and the minor
would benefit from continuing the relationship.’” (In re Derek W. (1999) 73 Cal.App.4th
823, 826.) The parent has the burden of proving that the exception applies. (Ibid.)
“‘Sporadic visitation is insufficient to satisfy the first prong . . .’ of the exception.
[Citation.] Satisfying the second prong requires the parent to prove that ‘severing the
natural parent-child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed. [Citations.] A
biological parent who has failed to reunify with an adoptable child may not derail an
adoption merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.’ [Citation.]” (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The issue for purposes of the statutory beneficial relationship exception “is not
whether there was a bond between [parent] and [child]. The question is whether that
relationship remained so significant and compelling in [the child’s] life that the benefit of
preserving it outweighed the stability and benefits of adoption. The ‘“benefit”’ necessary
to trigger this exception requires that ‘“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
16
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.”’ [Citations.]” (In re
Anthony B. (2015) 239 Cal.App.4th 389, 396-397 (Anthony B.).)
“‘[T]he emotional attachment between the child and parent must be that of parent
and child rather than one of being a friendly visitor or friendly nonparent relative, such as
an aunt.’” (In re Jason J. (2009) 175 Cal.App.4th 922, 938 (Jason J.).) The parent must
show “more than frequent and loving contact” or pleasant visits. (In re Dakota H. (2005)
132 Cal.App.4th 212, 229.) “‘A biological parent who has failed to reunify with an
adoptable child may not derail adoption merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation with the
parent. [Citation.] A child who has been adjudged a dependent of the juvenile court
should not be deprived of an adoptive parent when the natural parent has maintained a
relationship that may be beneficial to some degree, but that does not meet the child’s
need for a parent.’” (Jason J., at p. 937, italics omitted.)
The beneficial relationship must be examined on a case-by-case basis, taking into
account the many variables that can affect the parent-child relationship, including the age
of the child, the portion of the child’s life spent in the parent’s custody, and the positive
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and negative effects of interaction between parent and child. (Anthony B., supra, 239
Cal.App.4th at pp. 396-397; In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)
“We apply the substantial evidence standard of review to the factual issue of the
existence of a beneficial parental relationship, and the abuse of discretion standard to the
determination of whether there is a compelling reason for finding that termination [of
parental rights] would be detrimental to the child. [Citations.]” (Anthony B., supra, 239
Cal.App.4th at p. 395; In re Noah G. (2016) 247 Cal.App.4th 1292, 1300-1301 (Noah
G.).)
Whether there is a beneficial parent-child relationship is a factual issue; thus, the
substantial evidence standard applies to this component of the court’s decision. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) But whether there is a compelling reason
to determine the child would suffer detriment if parental rights are terminated is a
“‘quintessentially’ discretionary decision” (id. at p. 1315), because it requires the court to
“determine the importance of the relationship in terms of the detrimental impact that its
severance can be expected to have on the child and to weigh that against the benefit to the
child of adoption.” (Ibid.)
In this case, the juvenile court heard testimony from Mother, M.O.-B. and C.O.-B
and considered the evidence presented by the parties. The court, however, found that the
parental benefit exception did not apply. Substantial evidence supports the juvenile
court’s finding that the parental exception did not apply.
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Although Mother regularly visited and made contact with the children, the record
amply shows Mother failed to establish that she shared a beneficial parental relationship
with the children. By the time of the section 366.26 hearing on February 10, 2020, the
children had spent approximately 31 months out of Mother’s care and custody. For C.O.
that meant she had spent more than half of her young life in foster care, while, M.O.-B
and C.O.-B spent almost half of their lives removed, returned, and re-removed from
Mother’s care and custody. M.O.-B and C.O.-B recognized the instability in their lives
and testified they wanted stability and permanency.
The children also testified that they loved Mother, missed her, and cried when
visits ended, and they would be sad if they could not see her. They further stated that
Mother had never harmed them, they felt safe with her, and wanted to live with Mother.
However, M.O.-B and C.O.-B also acknowledged that they loved and cared for Mrs. L.
and that they called her “mom.” While, as the juvenile court found, “there [was] an
emotional bond between the children and the mother” and the children derived some
benefit from that relationship, the evidence of frequent and loving contact was not
sufficient to establish that Mother occupied a parental role in the children’s lives. (In re
Breanna S. (2017) 8 Cal.App.5th 636, 646.)
Contrary to Mother’s claims that she had never harmed her children, the record
shows the children had suffered trauma and instability for years as a result of Mother’s
unresolved substance abuse issues. CFS has been involved in the family’s life since 2012
and the children were removed from Mother’s care three times. For over 18 years,
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Mother has repeatedly been unable to maintain her sobriety, even after she received
numerous services during the course of several dependencies and voluntary services.
Under similar circumstances several courts have found the beneficial relationship
exception inapplicable. (See Noah G., supra, 247 Cal.App.4th at pp. 1302, 1304 [in
considering the beneficial relationship exception, “the juvenile court could properly focus
on the mother’s unresolved substance addiction issues because the children became
dependents of the court due to her drug abuse”; citing mother’s continuing drug abuse as
“evidence continuing the parent-child relationship would not be beneficial”].)
Furthermore, even if Mother had demonstrated the existence of a beneficial
parental relationship, the juvenile court did not abuse its discretion by determining that
the benefit of maintaining the children’s relationship with Mother was outweighed by the
benefits of adoption. Although Mother’s interaction with the children during supervised
visitation was positive, there is little in the record to support the conclusion that the
children would be harmed, much less “‘greatly harmed,’” by termination of parental
rights. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) Mrs. L. occupied the role of the
parent in the children’s lives in the second and third dependencies. The children looked
to Mrs. L. for their daily needs. Mrs. L. provided for the children’s medical, emotional,
and educational needs. All three children appeared to meet their developmental
milestones, slept and ate well, and appeared to be well and happy in Mrs. L.’s home.
Mrs. L. also took M.O.-B and C.O.-B to counseling sessions, and she noted the children
needed additional, more frequent therapy sessions.
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Moreover, the children and Mrs. L. were mutually attached. C.O. had been placed
with Mrs. L. for most of her life and considered Mrs. L. her mother. M.O.-B. called
Mrs. L. “‘mom’” because “[Mrs. L.] [took] care of us and she lov[ed] us.” C.O.-B. also
felt that Mrs. L. was her mom “[b]ecause she [took] care of us, and she lov[ed] us.”
Mrs. L. explained that “‘[the children] call[ed] [her] mom even when their mother [was]
around.’” The children also considered Mrs. L. and her family as their own family. The
record demonstrates that it was in the children’s best interest to be adopted by Mrs. L.
Mother simply did not meet her burden of showing that the bond between her and
the children was so strong and beneficial that it outweighed the benefit the children
would receive from having a stable, adoptive home. Mother bore the burden of showing
that her relationship with the children “promotes the well-being of the child[ren] to such a
degree as to outweigh the well-being the child[ren] would gain in a permanent home with
new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Mother relies on In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.) to support
her position the juvenile court should have ordered legal guardianship as the appropriate
permanent plan for the children. In that case, the appellate court reversed the juvenile
court’s order terminating the mother’s parental rights, holding that compelling reasons
existed to apply the parental relationship exception to termination of parental rights, and
remanded the matter to the lower court, suggesting that the court order legal guardianship
as the appropriate permanent plan for the child. (Id. at pp. 471-473.)
21
In Scott B., supra, 188 Cal.App.4th 452, the child suffered from attention deficit
hyperactivity disorder and autism, needed special education services, had behavior
problems at school, had problems interacting with his peers, and had bladder control
issues. (Id. at pp. 455-456.) “He was nearly nine years old when he was placed with his
foster family and thus had spent nearly all of his life living with Mother. After he was
removed from her care he had consistent weekly visits with her and he looked forward to
the visits.” (Id. at p. 471.) The child’s court-appointed special advocate reported that
Scott and his mother had a very close bond and that disrupting that relationship would be
detrimental to Scott. (Ibid.) Scott also “repeated[ly]” insisted that he preferred to live
with his mother. (Ibid.) The Court of Appeal concluded that these facts presented “a
compelling reason for finding that termination of parental rights is detrimental to the
minor.” (Ibid.)
The court further concluded: “Mother provides stability to Scott’s life. That is
what adoption is supposed to do, but it may not in this case. Given Scott’s strong
emotional attachment to Mother, his continued precarious emotional state, and his history
of regressing and running away when he is stressed, there is a very good chance that he
will have a meltdown if his usual frequent visitation with Mother does not continue. The
only way to avoid that serious emotional and developmental setback and ensure that
Scott’s usual visitation with Mother continues is by court order. The only way to have
such an order is to have Scott’s permanent plan be legal guardianship or long-term foster
care. Between the two plans, legal guardianship is the Legislature’s stated preference as
22
it provides much more stability for a minor child . . . .” (Scott B., supra, 188 Cal.App.4th
at p. 472.) The court agreed with the department’s statement that “‘what is at stake is the
fundamental question of whether [the child] will continue to thrive, as he has done since
being placed with [his foster mother].’ Termination of parental rights is unnecessary
given that a legal guardianship will provide [the child] with stability in his life.” (Ibid.,
fn. omitted.)
The facts of Scott B. are distinguishable from those here. Unlike in this case, in
Scott B., there was substantial evidence that the child was at risk of suffering a serious
emotional and developmental setback were he no longer able to see his mother. The
same cannot be said here. Here, the children do not have any special needs, and there is
no evidence to suggest that the children were at risk of suffering developmental setbacks.
Moreover, Mrs. L. met all the children’s emotional, medical, and educational needs.
Mother admitted that Mrs. L. was a good caregiver. Furthermore, although the two older
girls were conflicted on being adopted, the children showed no potential emotional
setback when the social worker discussed the issue of adoption with them. Upon learning
that they might be adopted, M.O.-B. and C.O.-B. continued to thrive in the care of
Mrs. L. and clearly stated that they wished to remain with her and be adopted “[b]ecause
it’s like stable than [sic] legal guardianship.” C.O. spent most of her life with Mrs. L. and
knew Mrs. L. as the only stable parent in her life.
23
Mother showed no substantial, positive attachment to the children such that
severing the parent-child bond would greatly harm the children. M.O.-B. and C.O.-B.
testified that they would be sad if they did not see Mother again, but there was no
evidence to suggest they would be greatly harmed. Indeed, they wanted to be adopted if
they could not return home. Even if Mother had demonstrated a beneficial parental
relationship, the juvenile court did not abuse its discretion by determining that its benefits
were outweighed by those of adoption. Mrs. L. wished to adopt the children and provide
them with permanency and stability. The children had been removed from Mother’s care
three times. The juvenile court was well within the bounds of reason to conclude that the
children’s permanency and stability outweighed the benefits of a continued relationship
with Mother under a lesser permanent plan.
Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) is also not
helpful. There, the sole issue was whether the father occupied a parental role in his
daughter’s life. In concluding that he did, the appellate court relied on circumstances that
simply are not present in this case. Unlike Mother here, the father in S.B. was his
daughter’s primary caregiver for three years, which was well over half of her life. (Id. at
pp. 293, 298.) In addition, a bonding study revealed a “‘fairly strong’” bond between the
father and his daughter—one that was reflected during visits when she would nestle into
his neck and whisper that she loved him and missed him and wanted to live with him.
(Id. at pp. 295, 298.) Finally, the father had complied with “‘every aspect’” of his case
plan, “immediately” obtaining and maintaining sobriety and seeking medical and
24
psychological services as soon as his daughter was removed from his care. (Id. at
p. 298.) Here, Mother’s efforts to resolve the issues that led to the dependency
proceedings fall drastically short of the father’s in S.B. In addition, the children had been
removed from Mother’s care three times due to the same issues. Furthermore, unlike
S.B., the evidence in the record does not show that Mother and the children had an
emotionally significant relationship such that severing the parent-child bond would
greatly harm the children. Therefore, the facts in S.B. are not analogous to those in this
case.
Mother also relies on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) and
In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.) to support her position that
the children would benefit from a continued parent-child relationship with her. Neither
case aids Mother’s argument because Mother has only had supervised visits with the
children.
Although the Amber M. court concluded the juvenile court erred by declining to
apply the beneficial relationship exception, the evidence there was markedly different
from the facts of this case. In Amber M., supra, 103 Cal.App.4th 681, all three children
spent a significant time with the mother prior to removal, including the oldest child
spending her first five years in the mother’s care. (Id. at p. 689.) Moreover, in Amber
M., the child advocate, bonding psychologist, and one of the children’s individual
therapists opined the mother had a strong bond with the children, and the court noted that
“[t]he common theme running through the evidence from the bonding study psychologist,
25
the therapists, and the [child advocate] is a beneficial parental relationship that clearly
outweighs the benefit of adoption.” (Id. at p. 690.) The court also noted “[t]he social
worker, the only dissenting voice among the experts, provided no more than a
perfunctory evaluation of Mother’s relationship to the children.” (Ibid.) Contrary to
Mother’ claim, the evidence here, as previously discussed, is markedly different. We
conclude Amber M. is factually distinguishable.
Mother also compares this case to Brandon C., supra, 71 Cal.App.4th 1530, an
appeal by a child welfare agency from a juvenile court’s decision to apply the beneficial
parent-child relationship exception and order legal guardianship. In Brandon C., the
appellate court affirmed the juvenile court’s order selecting guardianship with the
paternal grandmother as the permanent plan for twin boys, rather than adoption, after
finding the parent-child relationship exception to termination of parental rights applied.
Noting the governing legal standard, the appellate court stated, “Courts have required
more than just ‘frequent and loving contact’ to establish the requisite benefit for this
exception.” (Id. at pp. 1533-1534.) Evaluating conflicting evidence under the substantial
evidence standard of review, the court concluded the evidence was sufficient to support
the juvenile court’s guardianship order. (Id. at p. 1538.)
That analysis, which properly deferred to the juvenile court’s assessment of the
nature of the interaction between parent and child, fails to demonstrate the court in this
case was compelled to find Mother’s relationship with the children, while loving and,
perhaps, frequent, was parental in nature. The juvenile court’s decision in Brandon C.,
26
affirming the application of the exception, does not support the court’s contrary decision
here, which is based on different facts. Furthermore, Brandon C. is factually
distinguishable because in that case the caregiver (the paternal grandmother) was elderly,
had multiple health problems, and told the court she “did not think it would be in the
boys’ best interest to terminate their relationship with mother and father.” (Brandon C.,
supra, 71 Cal.App.4th at p. 1533.)
There is no indication here that Mrs. L. has any similar barriers to caring for the
children, and Mrs. L. stated she wished to adopt the children and provide them with a
stable, loving home. Moreover, the children and Mrs. L. were mutually attached, the
children loved and cared for Mrs. L., and they called Mr. L. “mom” even when Mother
was around. In addition, the two older girls said they desired to be adopted by Mrs. L. if
they could not be returned to Mother’s care. The juvenile court here properly considered
all the facts, including the testimony of Mother, M.O.-B. and C.O.-B., Mother’s
numerous failed reunification efforts, and the children’s need for stability and
permanency, before rejecting the beneficial parental relationship exception.
Based on the foregoing, the juvenile court did not err in determining that Mother
failed to establish that the beneficial parental relationship exception to termination of
parental rights applied.
27
IV
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
MILLER Acting P. J.
FIELDS J.
28
AI Brief
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Holding. The court held that the mother failed to meet her burden of proving the parental benefit exception to the termination of parental rights, as she did not demonstrate that her relationship with the children was so significant that its preservation outweighed the benefits of adoption.
Issues
Did the juvenile court err in finding that the mother failed to establish the parental benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court, however, concluded that was not sufficient to establish the exception. The court further concluded that Mother failed to show severing the natural parent-child bond would deprive the children of a substantial, positive emotional attachment”
“A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.”