California Court of Appeal May 31, 2024 No. E082762Unpublished
Filed 5/31/24 In re E.G. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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, unless 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 E.G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E082762
Plaintiff and Respondent, (Super.Ct.No. J290856-58)
v. OPINION
D.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Kristina M. Robb, Deputy County Counsel for
Plaintiff and Respondent.
1
In this juvenile dependency appeal following the termination of parental rights,
defendant and appellant D.G. (Father) contends that the trial court should have applied 1 the beneficial parental relationship exception. We disagree and affirm.
I. BACKGROUND
In October 2021, plaintiff and respondent San Bernardino County Children and
Family Services (the Department) filed section 300 petitions for three children: E.G. 2 (born 2021), A.G. (born 2020), and J.G. (born 2017). In part, the petitions alleged
Father struck the children’s half-sibling with a belt (see § 300, subd. (a)) and has an
untreated substance abuse problem impairing his ability to provide care (see § 300, subd.
(b)(1)). Deputy sheriffs had served a search warrant on the parents’ residence and
“located approximately 100 to 150 grams of methamphetamine in the garage near . . . a
firearm that was loaded with the hammer cocked back, ready to be fired.” The juvenile
court found the described allegations to be true and ordered family reunification services.
Reunification services were provided through Father’s 18-month review hearing.
Father, who was arrested the same day the house was searched, was released in August
2022.
1 Undesignated statutory references are to the Welfare and Institutions Code. 2 The Department filed petitions for four half-siblings as well, but they are not parties to this appeal. The seven children share a mother, but this appeal concerns only Father.
2
The Department’s 18-month report noted Father tested positive for
methamphetamine in October 2022 and methamphetamine and marijuana in December
2022. Father was placed in an outpatient substance abuse treatment program but was
dismissed three months later for nonattendance. Visitation appeared to be regular if not
more frequent than what court orders allowed. The children regularly visited the paternal
grandmother for unsupervised overnight visits. But because Father lived at the paternal
grandmother’s house yet was allowed only two supervised visits a week with the
children, the Department was concerned Father was violating his visitation order by 3 remaining at the house when the children were there. Father acknowledged a continuing
need for intensive services for his substance abuse. The juvenile court terminated
Father’s reunification services at the contested 18-month review hearing.
The Department recommended the court terminate Father’s parental rights and set
adoption as the children’s permanent plan. Father testified at the section 366.26 hearing.
He said he visited the children every week and that they recognize him and call him dad.
He said the children run up to him, calling “‘Daddy, Daddy,’ with open arms,” and he felt
a bond with them. The paternal grandmother also testified that the children love Father
and have a bond with him.
3 A later report stated that although paternal grandmother “is aware that Father is only authorized two hours per week, supervised,” “it appears she is allowing the Father unlimited access to the children.”
3
The children’s foster mother also testified at the hearing. When she stated that
Father would sometimes show up to his visits “intoxicated,” the court admonished Father
to stop making audible comments and warned that he would have to leave if he continued
to do so. When the foster mother continued, stating that Father would appear “very tired,
very sleepy,” and perhaps “coming off a high,” Father blurted expletives and was ejected
from the courtroom.
The juvenile court terminated Father’s parental rights and found the beneficial
parental relationship exception did not apply. In doing so, the court found the foster
mother “to be more credible” than Father and the paternal grandmother.
II. DISCUSSION
A. Applicable Law
At a section 366.26 hearing, the juvenile court selects and implements a permanent
plan for a dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53 (Celine R.).) “In
order of preference the choices are: (1) terminate parental rights and order that the child
be placed for adoption (the choice the court made here); (2) identify adoption as the
permanent placement goal and require efforts to locate an appropriate adoptive family;
(3) appoint a legal guardian; or (4) order long-term foster care.” (Id. at p. 53.)
“Whenever the court finds ‘that it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption.’” (Ibid.)
To avoid termination of parental rights, a parent must prove one or more statutory
exceptions apply. (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).) “One of the
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exceptions, the beneficial parental relationship exception, applies when (1) ‘the parent
has regularly visited with the child’; (2) ‘the child would benefit from continuing the
relationship’; and (3) ‘terminating the relationship would be detrimental to the child.’”
(In re M.V. (2023) 87 Cal.App.5th 1155, 1183 (M.V.); see § 366.26, subd. (c)(1)(B)(i).)
Like all the statutory exceptions, the beneficial parental relationship exception applies
only “‘in exceptional circumstances.’” (Caden C., supra, at p. 631.)
“The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632.)
Second, “the parent must show that the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that the child would benefit
from continuing the relationship.” (Caden C., supra, 11 Cal.5th at p. 636.) “Again here,
the focus is on the child. And the relationship may be shaped by a slew of factors, such
as ‘[t]he 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.’” (Id. at p. 632.)
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at p.
633.) “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
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‘detrimental to the child due to’ the child’s beneficial relationship with a parent.” (Id. at
pp. 633-634.)
“We review the court’s findings using a hybrid approach: for the first two
elements, which require factual findings (parental visitation and the child’s emotional
attachment), we apply the substantial evidence of review.” (M.V., supra, 87 Cal.App.5th
at p. 1184.) But where the juvenile court found the parent failed to carry his or her
burden of proof, the question is more properly stated not in terms of substantial evidence,
but rather “whether the [appellant parent’s] evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’” (In re I.W. (2009) 180
Cal.App.4th 1517, 1528 (I.W.), disapproved on another ground by Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) We apply the abuse of discretion standard to the
juvenile court’s “weighing of the relative harms and benefits of terminating parental
rights” for the third element (M.V., supra, 87 Cal.App.5th at p. 1184), but the substantial
evidence standard applies for any factual determinations made here as well. (Caden C.,
supra, 11 Cal.5th at p. 640.) “[T]he ultimate decision—whether termination of parental
rights would be detrimental to the child due to the child’s relationship with his [or her]
parent—is discretionary and properly reviewed for abuse of discretion.” (Ibid.) We will
not reverse the juvenile court’s order as an abuse of discretion unless the court made an
arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 300.)
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B. Postjudgment Factual Contentions
We begin with a factual claim Father makes for the first time on appeal. He
claims that, two months after his parental rights were terminated, the foster mother was
arrested for armed robbery. He argues the foster mother’s arrest shows the trial court
erred in finding the foster mother’s testimony to be credible and should have instead
found the beneficial parental relationship exception to apply.
In In re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.), our Supreme Court held an
appellate court “general[ly]” may not “consider postjudgment evidence that was never
before the juvenile court, and rely on such evidence outside the record on appeal to
reverse the judgment.” (Id. at p. 400.) Like the case before us, Zeth S. involved an
appeal following the termination of parental rights where the appellant parent claimed the
beneficial parental relationship exception should have applied. (Id. at p. 403.) The
postjudgment evidence there involved “an unsworn statement by minor’s appellate
counsel that maternal grandfather may have felt pressured into choosing adoption of his
grandson over legal guardianship.” (Id. at p. 407.)
Overturning a line of cases that had held postjudgment evidence should be
“routinely and liberally considered” in juvenile dependency appeals, Zeth S. observed
that such liberal consideration would be “at odds” with both the “procedural limitations
which section 366.26 imposes on review of judgment terminating parental rights” as well
as “generally applicable rules of appellate procedure.” (Zeth S., supra, 31 Cal.4th at pp.
7
412-413; see id. at pp. 408-409 [discussing cases].) It therefore found the appellate court
erred by considering the postjudgment evidence.
In applying the general rule, however, Zeth S. acknowledged exceptions may be
warranted in “rare and compelling” cases. (Zeth S., supra, 31 Cal.4th at p. 400.)
Specifically, it noted one case where it had previously made such an exception because
“all of the parties were in agreement . . . the minor in that case was no longer
adoptable . . . , thereby undermining the foundational basis of the trial court’s order
terminating [the] mother’s custody and control over the minor.” (Id. at p. 413, fn. 11,
italics removed, citing In re Elise K. (1982) 33 Cal.3d 138; see Celine R., supra, 31
Cal.4th at p. 53 [“Whenever the court finds ‘that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for adoption’” unless
statutory exception applies].) However, beyond that specific scenario, “the nature and
scope of any exception to the general rule [of nonadmissibility] must await a case in
which the facts squarely present the issue.” The Court noted that, on the facts before it,
“the postjudgment evidence in question did not even directly relate to, much less
undermine, the juvenile court’s finding of the adoptability of the minor.” (Zeth S., supra,
at p. 413, fn. 11.; see also id. at p. 406 [“It is particularly noteworthy that no party to this
appeal has ever questioned or challenged the trial court’s critical finding, made at the
termination hearing below, that the minor Zeth was adoptable”].)
Contrary to what Father asserts, this is not a “rare and compelling” case justifying
consideration of the foster mother’s arrest. For one, Father’s only support for his claim is
8
a newspaper article. Because it is offered to prove the foster mother was arrested, the
article is hearsay, and Father fails to show any exception to the hearsay rule applies. (See
Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1266; see also Zeth S., supra, 31 4 Cal.4th at p. 413, fn. 11 [postjudgment sworn statement offered was “not evidence”].)
More importantly, whether the foster mother has been arrested does not
conclusively determine whether the trial court erred in terminating Father’s parental
rights. As in Zeth S., where the Court found it “particularly noteworthy” that no one
questioned the trial court’s adoptability finding (Zeth S., supra, 31 Cal.4th at p. 406), here
Father has not contended the finding that the children are likely to be adopted has been
undermined in any way. Father argues the foster mother’s arrest shows the juvenile court
erred in crediting her testimony at the section 366.26 hearing over his own. It is improper
to infer a person committed a crime simply because they were arrested for it. Moreover,
as we now discuss, the beneficial parental relationship exception does not apply, even if
we give the foster mother’s testimony no evidentiary weight at all.
4 Father suggests that we “could take judicial notice . . . of the foster mother’s arrest record.” Father in effect asks this court to obtain a document it does not have so we may take judicial notice of a factual representation within it. We decline Father’s suggestion, at least in part because Father has not provided us with the arrest record, something he would have been required to do had he actually moved for judicial notice. (Cal. Rules of Court, rule 8.252(a)(3).) Even if we did take judicial notice, however, it would at most show that the foster mother has been accused of a crime, not that she in fact committed one.
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C. Beneficial Parental Relationship Exception
In terminating Father’s parental rights, the juvenile court found Father “failed to
meet the burden of proof as to the second and third elements” of the beneficial parental
relationship exception. As previously noted, the second element of the exception—that
“the child has a substantial, positive, emotional attachment to the parent” such that “the
child would benefit from continuing the relationship” (Caden C., supra, 11 Cal.5th at p.
636)—will be found on appeal only if Father’s evidence “was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’” (I.W., supra, 180
Cal.App.4th at p. 1528.)
Father has not shown his evidence was of such a character and weight as to 5 compel a finding that the children are attached to him. The young ages of the children
when they were removed from Father’s care (4 years, 1 year, and 7 months), as well as
Father’s incarceration for 10 months of the reunification period, weigh strongly in favor
of the juvenile court’s ruling. (See Caden C., supra, 11 Cal.5th at p. 632 [parent-child
relationship “may be shaped by a slew of factors, such as ‘[t]he age of the child [and] the
portion of the child’s life spent in the parent’s custody”].) The only evidence Father has
is testimony from two people, himself and his mother (the paternal grandmother), saying
there was a bond. Even if uncontradicted, the juvenile court was not required to accept
5 Because Father’s failure to satisfy the second and third elements are dispositive, we do not address whether he satisfied the first element.
10
these statements at face value. “The trier of fact is not required to believe even
uncontradicted testimony.” (Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66
Cal.App.5th 1112, 1123.) “A witness may, of course, be disbelieved if there is any
rational ground for doing so, and the interest of a party in the result of a case will in some
circumstances justify the trier of fact in disregarding his testimony.” (Leonard v.
Watsonville Community Hospital (1956) 47 Cal.2d 509, 518.) That Father and the
paternal grandmother’s self-serving statements were the only evidence means the juvenile
court could reasonably have found the second element of the exception to be lacking.
Father also fails to show the juvenile court abused its discretion in considering the
third element, “whether ‘termination would be detrimental to the child due to’ the
relationship.” (Caden C., supra, 11 Cal.5th at p. 633.) Indeed, despite devoting a two-
page section of his opening brief to this element, Father does not argue the juvenile court
abused its discretion on the third element at all. Rather, after reciting case law for one
page, Father simply describes the events surrounding his ejection from the termination
hearing before concluding that terminating the parental relationship would cause the
children harm. His reply brief similarly contains no concrete discussion of the third
element, which, it bears repeating, calls for weighing the parental relationship against
“the security and stability of a new home.” (Caden C., supra, 11 Cal.5th at p. 633).
Arguably, father has forfeited his challenge to the third element. (See Hernandez v. First
Student, Inc. (2019) 37 Cal.App.5th 270, 277 [“We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or fail to disclose the
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reasoning by which the appellant reached the conclusions he wants us to adopt’”].) In
any case, his conclusions do not follow from his premises, so his argument is
unpersuasive.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
12
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the termination of parental rights, holding that the father failed to meet his burden of proof to establish the beneficial parental relationship exception. The court found no abuse of discretion in the trial court's determination that the father failed to demonstrate a substantial, positive emotional attachment between himself and the children or that termination would be detrimental to them.
Issues
Whether the trial court erred in finding the beneficial parental relationship exception did not apply to the termination of parental rights.
Whether the appellate court should consider postjudgment evidence regarding the foster mother's arrest to challenge the trial court's credibility findings.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In terminating Father’s parental rights, the juvenile court found Father “failed to meet the burden of proof as to the second and third elements” of the beneficial parental relationship exception.”
“The trier of fact is not required to believe even uncontradicted testimony.”