California Court of Appeal Aug 11, 2021 No. E076538Unpublished
Filed 8/11/21 In re K.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.B. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY E076538 CHILDREN AND FAMILY SERVICES, (Super.Ct.Nos. J274064, J274065) Plaintiff and Respondent, OPINION v.
K.M. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant K.M.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant A.B.
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Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel,
for Plaintiff and Respondent.
K.M. (mother) and A.B. (father) appeal from an order terminating their parental
rights to their son and daughter. They contend that the juvenile court erred by declining
to find that the parental-benefit exception applied. (See § 366.26, subd. (c)(1)(B)(i).)1
We see a lot of cases raising the identical contention in which it would have been
an abuse of discretion to find that the parental-benefit exception did apply. This is not
“[I]n assessing whether termination would be detrimental, the trial court must
decide whether the harm from severing the child’s relationship with the parent outweighs
the benefit to the child of placement in a new adoptive home. [Citation.]” (In re
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Caden C., supra, 11 Cal.5th at p. 632.) The court asks, “does the benefit of placement in
a new, adoptive home outweigh ‘the harm [the child] would experience from the loss of
[a] significant, positive, emotional relationship with [the parent?]’ [Citation.]” (Id. at
p. 633.)
“[A] substantial evidence standard of review applies to the first two elements.” (In
re Caden C., supra, 11 Cal.5th at p. 639.) But “the ultimate decision — whether
termination of parental rights would be detrimental to the child due to the child’s
relationship with his parent — is discretionary and properly reviewed for abuse of
discretion.” (Id. at p. 640.) “A court abuses its discretion only when ‘“‘the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’”’ [Citation.]” (Id. at p. 641.)
“‘[B]ecause 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 prevail over the Legislature’s preference for
adoptive placement.’ [Citation.]” (In re Breanna S. (2017) 8 Cal.App.5th 636, 646,
disapproved on other grounds in In re Caden C., supra, 11 Cal.5th at pp. 637, fn. 6, 638,
fn. 7.)
The juvenile court errs if it considers “the prospective adoptive parents’
willingness to allow the children to have continued contact with mother.” (In re C.B.
(2010) 190 Cal.App.4th 102, 128 accord, In re E.T. (2018) 31 Cal.App.5th 68, 78.) Here,
there was some evidence, albeit disputed, that the aunt would allow the children to
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continue to visit the mother. However, there is no indication that the juvenile court
considered or relied on this evidence.
The juvenile court also errs if it considers “a parent’s continued struggles with the
issues that led to dependency,” except as it relates to the “interaction between parent and
child.” (In re Caden C., supra, 11 Cal.5th at pp. 637-639.) Again, there is no indication
that the juvenile court did so.
C. Application to These Facts.
The juvenile court’s finding that the mother did not have the necessary beneficial
relationship with the children is supported by substantial evidence. The children had
been out of her custody for more than three years. Her visitation was supervised. Most
recently, it took place at the Agency’s offices. (See In re Jeremy S. (2001) 89
Cal.App.4th 514, 523 [parental-benefit exception is hard to prove when visitation has
been supervised], disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396,
413-414.) When given the opportunity of an in-home visit with the children at Christmas
2020, she refused it, because she resented her sister reducing the visit from two hours to
one, even though her refusal would hurt the children more than her sister. She had told J.
he could phone her if he ever wanted to talk to her, but he never did.
The mother’s interactions with the children during visits — talking, playing
games, watching movies — could be those of a babysitter rather than a parent. She asked
J. if she could help him with his homework, but he declined because he did it at day care
and the aunt helped him with it. She was asked whether she ever “redirect[ed] them or
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correct[ed] their behaviors”; she said once, when K. slapped her, she told her not to do
that. She could not give any other examples. She had advised J. to be more “into . . .
education” than “into girls,” but he was “not listening” to her.
On redirect, the mother’s attorney specifically asked her how her visits were those
of a parent rather than “if you were just another relative or a friend . . . ?” She answered
that she taught the children “educational stuff,” but then she trailed off, “it’s hard to
explain . . . . I don’t know how to explain it . . . .”
Moreover, the juvenile court’s conclusion that termination of parental rights would
not be detrimental was not arbitrary, capricious, or patently absurd. The children had
settled in with the aunt and had become “quite attached” to her. When a visit ended, J.
was “okay”; K. wanted the mother to come with her, but it does not appear that she was
distressed when the mother did not. There was no evidence that either child suffered
from missing the mother in between visits.
The strongest evidence in the mother’s favor was J.’s testimony, “As long as I see
my mom, I’m okay with getting adopted.” If he could not visit the mother anymore, he
would be “[a] little sad . . . .” He looked forward to visits and wished they could be
longer. This testimony was undercut, however, by the fact that he had been told he could
phone the mother whenever he wanted, but he had no done so. The juvenile court could
reasonably find that J. would be, as he said, “[a] little sad”; however, this harm would be
outweighed by the benefit of permanence with a loving and “dedicated” caregiver. And
K. would not be harmed at all.
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The mother’s discussion of the evidence is unduly conclusory. For example, she
says: “Both children identified mother as their true parent — she was not merely a
‘friendly visitor.” The portions of the record cited, however, show only that (1) J. and K.
called the mother “Mom” or “Mommy”; (2) in the mother’s opinion, both J. and K. saw
her as their mother, although she had trouble explaining how she could tell; and (3) in the
opinion of minors’ counsel, J. “holds [the mother] out to be his mom and . . . holds [the
aunt] out to be his aunt . . . .”
This conclusory approach obscures the possibility that the juvenile court could
have drawn different conclusions from the evidence. The cited portions of the record
also show that K. also called the aunt “Mommy”; K. sometimes called the mother by her
first name; and J. had written a letter to the aunt calling her “Mom.” In any event, the
juvenile court specifically found that “[t]he title ‘Mom’ . . . is not enough . . . .” It did not
have to accept the mother’s poorly supported opinion, and it did not have to accept
minors’ counsel’s representations as evidence at all.
The juvenile court had the benefit of observing J. and the mother, both
individually and together. (Cf. In re C.B., supra, 190 Cal.App.4th at p. 126 [juvenile
court noted, “It was clear . . . , by the eye contact and the smiles, that the children were
happy to be sitting in the same room as the parents.”].)
We therefore conclude that the juvenile court made a tough call as best it could;
the call that it made was supported by the evidence and consistent with the applicable
law.
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III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in determining that the parental-benefit exception did not apply and that termination of parental rights was appropriate. The record supported the finding that the children's need for permanency outweighed the harm of severing the parental relationship.
Issues
Did the juvenile court err in finding that the parental-benefit exception to the termination of parental rights did not apply?
Did the juvenile court abuse its discretion in determining that the benefit of adoption outweighed the harm of terminating the parental relationship?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In this situation, under the deferential abuse of discretion standard of review, we must affirm.”
“The juvenile court’s finding that the mother did not have the necessary beneficial relationship with the children is supported by substantial evidence.”