California Court of Appeal Nov 3, 2021 No. E077131Unpublished
Filed 11/3/21 In re N.D. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.D., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E077131
Plaintiff and Respondent, (Super.Ct.No. J281490)
v. OPINION
G.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel,
for Plaintiff and Respondent.
1
G.M. (mother) filed a petition under Welfare and Institutions Code section 388
(unlabeled statutory references are to this code) asking the juvenile court to order
additional reunification services for her. The court denied the petition without holding an
evidentiary hearing. The court then terminated parental rights, freeing mother’s minor
son, N.D., for adoption. (§ 366.26.) Mother appeals from the orders denying her section
388 petition and terminating her parental rights. We affirm.
Conclusory allegations are not sufficient to make a prima facie showing. (In re Edward
H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) “A ‘prima facie’ showing refers to
those facts which will sustain a favorable decision if the evidence submitted in support of
the allegations by the petitioner is credited.” (Ibid.) In determining whether a prima
facie showing has been made, “the court may consider the entire factual and procedural
history of the case.” (In re K.L. (2016) 248 Cal.App.4th 52, 62 (K.L.).) We review for
abuse of discretion the summary denial of a section 388 petition. (In re A.S. (2009) 180
Cal.App.4th 351, 358.)
To demonstrate that she made a prima facie showing of materially changed
circumstances, mother argues that she reengaged in services “in order to learn the source
of her mistakes in 2020” and to demonstrate to “the court that she had made the needed
changes once and for all.” She also argues that it was her “honest and sincere
participation in the services and her conscious decision to cut [N.D.’s father] out of her
life, which provided the prima facie evidence needed to warrant a hearing be set on the
petition.” The record does not support mother’s arguments, and it amply supports the
13
juvenile court’s determination that mother failed to make a prima facie showing of a
material change in circumstances.
Before mother’s services were terminated on January 12, 2021, mother completed
the following services: 24 individual therapy sessions, 24 anger management classes, 12
hours of a domestic violence program and another 20 domestic violence classes, 12
parenting classes, and 11 family therapy sessions with M.B. Despite mother’s
participation in those services over the course of 18 months, the court found that mother
had not made substantial progress toward addressing the underlying issues that led to
removal because mother continued to have a relationship with N.D.’s father and to be
dishonest about it.
After mother’s services were terminated, she enrolled in another domestic
violence education course and attended four of 10 classes. She also attended an
additional six individual therapy sessions with a different therapist. Mother reported to
the therapist that her children were removed because law enforcement was called after
she had an “altercation” in front of her house with her former partner, which had not
caused her to be injured. She claimed that law enforcement officers did not believe her
claim that coincidentally she had accidentally fallen and suffered bruising the day before,
so law enforcement filed a report with CFS for domestic violence. Mother also told the
therapist that she had “abided by the court’s orders to keep her children away from their
father.”
14
Given the extensive services in which mother participated for 18 months without
making substantive progress, her participation in four additional domestic violence
sessions and six additional individual counseling sessions, in which she continued to
deny and minimize the domestic violence, did not constitute a prima facie showing of a
material change in circumstances. Moreover, in light of mother’s continued denial and
minimization and also considering mother’s dishonesty to previous therapists and to CFS
about her contact with N.D.’s father despite video evidence to the contrary, the juvenile
court acted well within its discretion by concluding that mother’s unsubstantiated claim
to her new therapist that she was not in contact with N.D.’s father also did not make a
prima facie showing of materially changed circumstances. The court consequently did
not abuse its discretion by concluding that the allegations in the petition did not warrant
an evidentiary hearing.
Additionally, mother also failed to make a prima facie showing that additional
services would be in N.D.’s best interest. On the face of the petition, mother alleged that
additional reunifications services would be in N.D.’s best interest because “a child needs
his/her mom. I am a great mother.” These conclusory allegations about the general
needs of all children and mother’s assessment of her parenting skills are not sufficient to
make a prima facie showing that it would promote N.D.’s best interests for mother to
receive an additional six months of reunification services. (Edward H., supra, 43
Cal.App.4th at p. 593; K.L., supra, 248 Cal.App.4th at p. 62.)
15
At this stage in the proceedings—“on the eve of the section 366.26 permanency
planning hearing—[N.D.’s] interest in stability was the court’s foremost concern and
outweighed any interest in reunification.” (Edward H., supra, 43 Cal.App.4th at p. 594.)
After 18 months of services, mother continued to be dishonest to her therapist about the
nature and extent of the domestic violence in her relationship with N.D.’s father. It
would not have promoted N.D.’s stability and thus would not have promoted his best
interest for mother to be provided an additional six months of reunification services to see
if mother could and would be honest about that relationship so as to make meaningful
progress toward providing N.D. with a safe home.
For all of these reasons, we conclude that the trial court did not abuse its discretion
by denying mother’s section 388 petition without holding an evidentiary hearing.
B. Parental Bond Exception
Mother argues that the juvenile court erred by terminating her parental rights,
because the parental bond exception applied. We disagree.
When the juvenile court finds that a dependent child is likely to be adopted, it
must terminate parental rights and select adoption as the permanent plan unless it finds
that adoption would be detrimental to the child under one of several exceptions.
(§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).) The
exceptions allow “‘the court, in exceptional circumstances [citation], to choose an option
other than the norm, which remains adoption.’” (Caden C., supra, at p. 631, quoting In
re Celine R. (2003) 31 Cal.4th 45, 53.)
16
Under the parental bond exception, the parent bears the burden of proving three
elements by a preponderance of the evidence: “(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.” (Caden C., supra, 11
Cal.5th at pp. 631, 636 [construing § 366.26, subd. (c)(1)(B)(i)].)
We review for substantial evidence the juvenile court’s findings on whether the
parent has regularly visited and whether a beneficial parental relationship exists. (Caden
C., supra, 11 Cal.5th at pp. 639-640.) Whether termination of parental rights would be
detrimental to the child because of the beneficial parental relationship is reviewed for
abuse of discretion. (Id. at p. 640.) But we review any factual findings underlying that
decision for substantial evidence. (Ibid.)
In determining whether the parental bond exception applies, “the court balances
the strength and 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.” (In re Autumn
H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); Caden C., supra, 11 Cal.5th at p. 633.)
When “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.” (Caden C., at p. 632.)
17
The parent must show that his or her relationship with the child “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.” (Autumn H., supra, 27
Cal.App.4th at p. 575.) “A showing the child derives some benefit from the relationship
is not a sufficient ground to depart from the statutory preference for adoption.” (In re
Breanna S. (2017) 8 Cal.App.5th 636, 646, disapproved on another ground in Caden C.,
supra, 11 Cal.5th at pp. 637, fn. 6., 638, fn. 7.) In determining whether severing the
parental relationship would be detrimental, the court may consider issues ranging from
“the specific features of the child’s relationship with the parent and the harm that would
come from losing those specific features to a higher-level conclusion of how harmful in
total that loss would be.” (Caden C., at p. 640.) The court must also assess “how a
prospective adoptive placement may offset and even counterbalance those harms,” and in
that regard the court may consider “findings ranging from specific benefits related to the
child’s specific characteristics up to a higher-level conclusion about the benefit of
adoption all told.” (Ibid.)
The trial court found and it is undisputed that mother maintained regular visitation
and contact with N.D., and the contacts were loving. We agree that these finding are
supported by substantial evidence. Assuming for the sake of argument that N.D. would
benefit from continuing his relationship with mother, we analyze whether N.D. shared
such a “substantial, positive attachment” to mother that the harm in severing the parental
18
relationship would “outweigh[] ‘the security and the sense of belonging a new family
would confer.’” (Caden C., supra, 11 Cal.5th at pp. 636, 633.)
The juvenile court did not abuse its discretion by determining that any benefits
derived from N.D.’s relationship with mother did not outweigh the benefit of stability
through adoption. The record reflects that N.D. enjoyed visiting with mother and loved
mother. According to mother, N.D. cried when it was time to say goodbye to mother and
did not understand why he could not stay with her. That evidence shows that mother
shared an emotional bond with N.D. and that he enjoyed visiting with mother. But “[a]
parent must show more than frequent and loving contact or pleasant visits.” (In re C.F.
(2011) 193 Cal.App.4th 549, 555 (C.F.).) Contrary to mother’s suggestion, there was no
evidence that the relationship was so significant as to outweigh the security and stability
of an adoptive home. (Cf. Caden C., supra, 11 Cal.5th at pp. 633-634 [“When the
relationship with a parent is so important to the child that the security and stability of a
new home wouldn’t outweigh its loss, termination would be ‘detrimental to the child due
to’ the child’s beneficial relationship with a parent”]; id. at p. 635 [when a child has
“‘very strong ties’” with a parent and termination of parental rights “‘is likely to be
harmful to the child, courts should retain parental ties if desired by both the parents and
the child’”].) Although N.D. enjoyed his visits with mother, there was substantial
evidence that he was bonded to paternal great-grandmother, whom he considered a
parental figure. The relationship mother enjoyed with N.D. during their visits is not
19
sufficient to demonstrate that mother and N.D. shared such a substantial, positive
emotional attachment that terminating mother’s parental rights would greatly harm N.D.
Mother also did not present any evidence that N.D. would be greatly harmed by
severance of the parental relationship, or that the security and stability of a new home
would not outweigh the loss of that relationship. Mother stated that N.D. would cry when
his visits with mother ended and that he would tell her that he wanted to stay with her,
but there was no evidence that N.D. would continue to cry after the visits or that he
otherwise expressed any sadness about not being able to be with her. There also was not
any evidence demonstrating that how N.D. felt when the visits ended otherwise affected
his behavior or general emotional well-being. (Cf. Caden C., supra, 11 Cal.5th at p. 633
[losing the parental relationship might result in “emotional instability and preoccupation
leading to acting out, difficulties in school, insomnia, anxiety, or depression”].) On the
contrary, the evidence demonstrates that N.D. was thriving and well-adjusted in his
placement with paternal great-grandmother, with whom he had lived since he was one
month old.2
2 Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), In re E.T. (2018) 31 Cal.App.5th 68 (E.T.), and In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.) is misplaced. In S.B., there was evidence (apart from the parent’s testimony) in the form of a bonding study and a social worker’s opinion that termination of parental rights would be detrimental. (S.B., supra, at p. 295; see also C.F., supra, 193 Cal.App.4th at pp. 558- 559 [same appellate court observing that “S.B. is confined to its extraordinary facts”]; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2021) § 2.171[5][i][C], p. 2-694 [S.B. should be viewed as a “the result of a very unique factual situation”].) Similarly, in Scott B., the social worker opined that terminating parental rights would cause detriment to the child, who was 11 years old and was removed when he was nine years old. (Scott B., supra, at p. 471.) Finally, in E.T., there was evidence that the
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In challenging the juvenile court’s decision not to apply the parental bond
exception, mother argues that the court failed to take into account “all of the unique
circumstances of the situation,” including the purported unsuitability of paternal great-
grandmother to be N.D.’s adoptive parent because of her age and alleged health issues.
The argument lacks merit. The only health issue of paternal great-grandmother’s that
mother identified in her testimony and in her section 388 petition is that paternal great-
grandmother was experiencing problems with her eyesight. CFS did not report that
paternal great-grandmother was having any issues with her vision and otherwise reported
that all of her medical conditions were controlled by medication. Moreover, CFS was
aware of paternal great-grandmother’s age and nevertheless recommended that it was in
N.D.’s best interest to remain with paternal great-grandmother. It was well within the
juvenile court’s discretion to discredit mother’s unsubstantiated allegations about paternal
great-grandmother’s health and to credit CFS’s determination that it was in N.D.’s best
interest to live with paternal great-grandmother given her age and known health issues.
For all of these reasons, we conclude that the juvenile court did not abuse its
discretion by concluding that the benefit N.D. would receive from adoption was not
outweighed by any detriment N.D. might suffer from the termination of mother’s parental
rights.
mother had gained significant insight through participation in services, and there was no evidence that she minimized or lied about the trauma that led to her children’s removal. (E.T., supra, at pp. 77-78.)
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DISPOSITION
The May 14, 2021, order denying mother’s section 388 petition is affirmed. The
May 27, 2021, order terminating mother’s parental rights to N.D. is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
22
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in summarily denying the mother's section 388 petition for additional services, nor did it err in terminating parental rights after finding the mother failed to meet her burden under the parental bond exception.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 petition without an evidentiary hearing?
Did the juvenile court err in finding that the mother failed to meet her burden of proof for the parental bond exception under section 366.26?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court found that mother did not demonstrate a change of circumstances and that the requested change would not be in N.D.’s best interest.”
“Enrolling in addition[al] services is a positive step but is insufficient to show a change in circumstances.”
“The court found that mother had not carried her burden of demonstrating that she occupied a parental role in N.D.’s life.”