Filed 3/16/15 In re Logan C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LOGAN C., a Person Coming Under the Juvenile Court Law. D066433 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518-551) Plaintiff and Respondent,
v.
IGNACIO C., et al.
Defendants and Appellants.
APPEALS from judgment and order of the Superior Court of San Diego County,
Laura J. Birkmeyer, Judge. Affirmed.
Lelah S. Fisher for Defendant and Appellant Ignacio C.
Rosemary Bishop for Defendant and Appellant Sandra C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Brittany Murphy for Minor. Appellants Sandra C. (Mother) and Ignacio C. (Father) appeal a juvenile court
judgment terminating their parental rights to the minor, Logan C., and choosing adoption
as the appropriate permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory
references are to this code unless noted.) They also appeal the court's denial of Mother's
related modification motion for return of Logan to her care. (§ 388.)
Logan came to the attention of respondent San Diego County Health and Human
Services Agency (the Agency) in October 2012, when he was 10 months old and riding in
the car in which Mother was arrested for transporting methamphetamine and heroin, after
she and her sister visited Father in state prison. The Agency filed a dependency petition
under section 300, subdivision (g), alleging the parents were incarcerated and unable to
arrange appropriate and adequate care for Logan, and he was detained in care and then
with a relative. The petition was amended to add a count under section 300, subdivision
(b), alleging that Mother left Logan unattended and inadequately supervised upon her
arrest. Reunification services were provided for 12 months.
Previously, this court denied Mother's petition for writ review (joined by Father)
of the juvenile court's order terminating reunification services as to both parents at the
12-month stage of the proceedings, and setting a hearing under section 366.26.
(Sandra C. v. Superior Court (June 11, 2014, D065494) [nonpub. opn.]; our prior opn.)
The juvenile court proceeded to hear the section 366.26 petition, terminating parental
rights and denying Mother's concurrent motion for modification under section 388.
Mother, joined by Father, first argues the court abused its discretion when it
denied her motion for modification, based upon her showing of changed circumstances.
2 (§ 388.)1 They then challenge the sufficiency of the evidence to support the court's
finding that no exception to adoption preference (i.e., the beneficial parent-child
relationship, § 366.26, subd. (c)(1)(B)(i)) applies here. (In re Autumn H. (1994)
27 Cal.App.4th 567, 576 (Autumn H.).) We affirm the judgment and order.
I
BACKGROUND
A. Jurisdiction, Disposition, and Termination of Reunification Services
We take some of the background facts occurring before the 12-month hearing
date, as they were set forth and reviewed in our prior opinion. In October 2012, Mother
was arrested after being stopped at a check point when she was returning from the state
prison where Father was incarcerated. Her 18-year-old sister A. and 10-month-old Logan
were with her in the car. Because Mother was not allowed on prison grounds, due to her
probation status for previously attempting to smuggle heroin into jail, the plan had been
that A. would smuggle drugs into the prison and pass them to Father, while he visited
with Logan. However, the drugs remained in the car when A. decided not to go through
with the plan.
When Mother's home was searched after her arrest, police found drug
paraphernalia and marijuana in the room where she and Logan slept. A San Diego
Sheriff's Department deputy informed the Agency that Father was a gang member from
1 Father's counsel filed letters joining in each of Mother's briefs on appeal (except for one portion of her statement of facts referring to certain criminal charges brought against him in October 2013, attempted murder, possession of drugs and firearms). Logan's counsel filed a letter joining in the Agency's respondent's brief. 3 Logan Heights and a member of the Mexican Mafia, who had a significant criminal
history and possessed a lot of power in prison and on the streets.
After the Agency filed the petition under section 300, subdivision (g), it added
allegations that Mother left Logan unattended and inadequately supervised due to her
arrest in October for transporting drugs when he was present. (§ 300, subd. (b).) Mother
admitted she was transporting the drugs at Father's direction and had done so before,
leading to her conviction and probation for trying to smuggle drugs to him. After a short
delay, Logan was detained in the home of Mother's cousin L.M. (the caregiver), and her
fiancé. A jurisdiction and disposition hearing on December 27, 2012 resulted in the
sustaining of the amended petition, with orders for reunification services for both parents,
and continued placement of Logan with the caregiver.
By late April 2013, both Mother and Father had been released from custody.
While incarcerated, Mother attended a parenting class, Narcotics Anonymous (NA)
meetings, and an anger management class. She also received a food handler's certificate
and completed drug education classes. Following her release, Mother attended a
substance abuse program called ParentCare, in addition to NA meetings and other
services. Her attendance was spotty and she did not complete the program's required
assignments. She underwent a number of random drug tests with negative results,
although she tested positive for tetrahydrocannabinol (THC) once in June 2013.
Mother consistently visited with Logan while she was in jail and on work
furlough, and she had supervised visits with him after her release. Both of them enjoyed
the visits. Mother was living with her aunt, and her own mother lived there as well.
4 Mother had a dependency background as a child because her mother was a long time
substance abuser.
At the contested six-month review hearing, the court found Mother had made
some progress with her case plan, although Father had not. The court continued
reunification services for both parents.
In Mother's updated case plan, she was expected to address in group therapy her
understanding of what brought this case to the court's attention and to describe in detail
the risk of harm from trafficking drugs in the presence of Logan. She was directed to
write a letter explaining how selling drugs from her home could harm Logan "and exactly
how things would be different in the future so this does not happen again." Both parents
were ordered to participate in dependency drug court.
Father was again briefly incarcerated in August 2013, because his parole officer
found illegal drugs in his home. While out of jail, Father did not participate in
reunification services and he had tested positive for drugs three times. By August 2013,
Mother was pregnant with his second child, and was considering separating from Father.
He was returned to custody October 24, 2013, when he was arrested for attempted
murder, after allegedly shooting and wounding a San Diego police officer who was trying
to arrest him on two felony warrants. Charges of drug, weapons and burglary equipment
possession by a parolee were also filed against him.
By the fall of 2013, the Agency's reports recommended that the court terminate
reunification services for both parents and proceed to a section 366.26 hearing. The
12-month review hearing was continued until February 2014. As of October 2013,
5 Mother had decided not to separate from Father and she visited him in jail as much as she
could. She appeared depressed and had symptoms of PTSD due to her separation from
Logan. She was concerned about how she would handle both caring for her new baby
and successfully reunifying with Logan. She started individual therapy and her therapist
reported that at times, Mother heard voices, and she might have depression with
psychotic features. The therapist thought Mother needed medication for depression, but
Mother refused to take medication because she was due to deliver her new baby in April
2014. The therapist recommended she undergo a psychiatric and psychological
evaluation.
In the court-ordered psychological evaluation in November 2013, Mother told the
evaluator she had trafficked in narcotics when Logan was small, because "I had a new
baby, my husband was in prison, I couldn't make the bills, it was a quick way to make a
lot of money." She told the evaluator she had used marijuana daily between the ages of
12 and 19, but had been abstinent since her arrest in October 2012. Mother met the
criteria for major depressive disorder and was debilitated by her emotional symptoms.
The evaluator concluded that Mother did not appear to have any cognitive or intellectual
impairment that would prevent her from benefitting from services, but it was unlikely she
would meet expected goals by the end of 2013, due to her impaired emotional and
psychological functioning (severe depression exacerbated by symptoms of pregnancy).
A February 2014 Agency addendum report stated that Mother's therapist expected
that Mother would stop being involved with Father if the Agency told her she could not
be with him. The social worker explained, "the Agency could not tell [Mother] who [she
6 could] be in a relationship with, but that is something she would have to decide herself
with the help of her services, including individual therapy." Mother explained she
continued her relationship with Father because "he is still a person and he just made a bad
mistake." She continued to visit him and said he was supportive of her and that they
were in the process of planning a name for their new baby.
Mother changed outpatient programs, since the first one did not work out well for
her, and she started attending Family Harmony West Women's Recovery Center
(Harmony West). Mother's case manager at Harmony West told the social worker that
Mother was sometimes engaged in sessions and sometimes "just sits there . . . and has a
flat affect . . . ."
At the continued 12-month review hearing in February 2014, the court admitted all
of the Agency's reports and an update letter from Harmony West into evidence. The
court took testimony from the social worker and from Mother and her therapist. The
court found the Agency had provided each parent with reasonable services. The court
further found return of Logan to parental custody would create a substantial risk of
detriment to him, and there was no substantial probability of such a return to parental
custody by the 18-month date (in April 2014). Accordingly, the court terminated
reunification services and set a section 366.26 selection and implementation hearing. In
our prior opinion, Mother's petition for writ review of those orders was denied.
B. Modification Motion and Permanency Planning Hearing
Mother continued to attend therapy after her reunification services were
terminated. In April 2014, her new baby with Father was born (daughter Luna), and
7 Mother graduated from drug dependency court in July 2014. The updated case plan
allowed Mother's continued supervised visitation with Logan, but Father's visits were
terminated because it distressed Logan too much to go to the jail.
In July 2014, Mother brought a motion under section 388 for return of Logan to
her care, on the grounds that she had made material changes in improving her situation.
Mother had resolved her drug issues and her symptoms of depression and PTSD were
reduced, and she was able safely to care for her new baby. The Agency opposed the
modification request.
The court ruled that Mother had made out a prima facie case for modification, and
it combined the hearing on that request with the hearing on adoption of a permanent plan,
held in July and August 2014. We will defer further outlining the facts on modification
and the permanency planning issues until the discussion portion of this opinion. On a
procedural note, the Agency's preplanning and assessment unit determined that Logan
was adoptable, and that the current caregivers were interested in adopting him.
At the joint hearing on the motion and the petition, the court considered testimony
from Mother's therapist and the assessment social worker. The court heard arguments of
counsel, and read and considered the evidence contained in the motion and the Agency
reports and exhibits. Modification was denied, and the court heard argument on the
permanency planning issues. The court found Logan was adoptable and that none of the
exceptions to adoption found in section 366.26, subdivision (c)(1)(B) applied (no parent
8 or sibling bond [Luna]).2 Adoption was found to be in Logan's best interests, the
parental rights were terminated, and adoption was chosen as his permanent plan. These
appeals followed.
II
MODIFICATION MOTION
A. Introduction
Mother, joined by Father, argues the juvenile court erred or abused its discretion
by denying her section 388 motion seeking placement of Logan with her. In seeking
modification, she referenced the orders from November 2012 that removed Logan from
her care (postdetention; dispositional orders made in December 2012). Mother did not
expressly attack the 12-month review order from February 2014 that maintained Logan's
placement with the caregiver, nor did she seek to have reunification services reinstated.
After this appellate briefing was completed, the Agency filed a letter of errata,
seeking to "clarify" its view that the parents had forfeited any modification arguments by
failing to earlier challenge the December 2012 dispositional orders. We allowed
supplemental briefing. Even assuming the section 388 motion seeking return to Mother's
care could have addressed other orders, we decline to find that any forfeiture of appellate
arguments occurred. The juvenile court's hearing on the modification and termination
2 Although the juvenile court ruled that the sibling exception to termination of parental rights did not apply, due to the lack of common experiences between Logan and Luna, Mother and Father do not make any such arguments about Luna on appeal. Father merely joins in the arguments made by Mother, and points out that if the judgment were to be reversed as to her, it should be reversed as to him as well. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1263.) As we will show, that is not a problematic issue here. 9 issues was comprehensive, and Mother's modification arguments appropriately requested
the trial court to consider the changes of circumstance she was claiming. On appeal, the
modification issues are adequately presented on their merits.
B. Applicable Standards: Two Prongs
A petitioner requesting modification has the burden of proof to show a change of
circumstances or new evidence, and that the proposed modification is in the child's best
interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47; § 388, subd. (a)(1).) The focus
of a modification hearing is whether the petitioner has shown a significant change of
circumstances. (Ibid.) In deciding whether the petition makes the necessary showing, the
juvenile court may consider the entire factual and procedural history of the case. (In re
Justice P. (2004) 123 Cal.App.4th 181, 189.) The court held a full hearing on
modification, after Mother made a prima facie showing. (In re Marilyn H. (1993) 5
Ca1.4th 295, 310.)
We review the grant or denial of a petition for modification under section 388 for
abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D.,
supra, 70 Cal.App.4th at p. 47.) Although the abuse of discretion standard gives the trial
court substantial latitude, " '[t]he scope of discretion always resides in the particular law
being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." ' "
(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, citing City of
Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) We will not disturb a
discretionary decision unless the lower court has exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M.
10 (1994) 7 Ca1.4th 295, 318; In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) The
complaining party must affirmatively establish abuse of discretion; it is never presumed.
(In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
It is not our role to reweigh the evidence. "It is the trial court's role to assess the
credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the
evidence. We have no power to judge the effect or value of the evidence, to weigh the
evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or
the reasonable inferences which may be drawn from that evidence." (In re Casey D.,
supra, 70 Cal.App.4th at pp. 52-53.)
C. Evidence at Hearing
In Mother's modification petition under section 388, she presented evidence that
since her reunification services were terminated in February 2014, she continued to
participate and to progress in individual therapy. Her new baby, Luna, was born in April
2014 and she was successfully caring for her. Her feelings of depression had improved,
and she had consulted her OB/GYN on that subject, and was monitoring the situation
with a checklist. Mother's regular weekly supervised visits with Logan were maintaining
the parental bond, and Logan was getting to know the baby. Mother was distancing
herself from Father, as she had told a police investigator looking into the charges against
him in October 2013.
The Agency filed an addendum report in opposition to the section 388 petition.
At the hearing, the court heard testimony from Mother's therapist Estela Bobadilla,
who noted that Mother called on her as needed for support. Mother demonstrated
11 understanding that untreated depression would affect her children negatively. The
therapist noted that in July 2014, Mother graduated from drug court (278 days clean and
sober).
The therapist believed that Mother had worked on her "power and control" issues
related to Father, and that Mother did not show any symptoms of codependency. Mother
believed she could avoid influence from Father and would be able to avoid situations
which could cause removal of her children. The therapist had discussed the issues that
Mother had with Father during only about 10 percent of their time in sessions. She
understood that Mother continued to visit him in jail, and that Mother would have
divorced Father if the Agency told her to do so.
The court heard testimony from the social worker that the Agency's investigation
had not found any safety threats if Mother retained custody of her new baby. In the
opinion of the social worker, the benefits of adoption for Logan would outweigh any
benefits of maintaining his bonds with Mother or Father. The Agency noted that
Mother's participation in the drug treatment program was rated at "fair," and that it was
unclear how Mother was actually demonstrating progress in therapy.
For example, Mother was prioritizing her relationship with Father, by visiting him
in jail once or twice daily around the time that Luna was born in April 2014, and
throughout the next few months. Mother told the social worker that she and Father just
took their relationship day by day.
The social worker's observations of weekly visits between Mother and Logan led
her to conclude that it was a comfortable but not a significant relationship. Logan called
12 Mother by her first name, while he referred to his caregiver and her fiancé as Mama and
Papa. At the end of a May 2014 visit, Logan said, "No go" when Mother explained to
him it was time to go home, but then he kept playing and eventually left, waving goodbye
to her while his back was turned.
The trial court denied Mother's section 388 petition. The court observed that she
had made progress in dealing with her depression and in being able to take care of her
new baby, but Mother continued to identify Father as one of her support people, and there
was no showing that Mother had developed insights into what she would do if Father
remained in custody and requested her assistance, such as breaking the rules. It appeared
to the court that Mother did not want to address those issues.
With regard to the strength of the bond between Logan and his parents, or Logan
and the caregiver, the court ruled that changing the placement back to Mother would not
be in the best interests of Logan, according to the weight of the evidence. Logan had
been through trauma through his separation from Mother, and in visiting Father in jail,
and the caregivers had worked hard to address the behavioral byproducts, with success.
Logan was cooperative with Mother but did not look to her for his needs.
D. Analysis on Changed Circumstances and Best Interests
On appeal, Mother initially contends that the juvenile court abused its discretion in
ruling that no material changes in her circumstances had been demonstrated, especially
after the time of the 12-month review hearing. Mother essentially argues that the critical
issues were her ability to safely parent an infant, to regularly visit Logan, and to show
mental health improvement, and they should have been given greater weight. She claims
13 the court downgraded those efforts and erroneously faulted her for not completing all the
written and oral assignments for her intensive drug program, and for continuing her
regular visits to Father in jail. Mother argues she had only minor deficiencies in meeting
the Agency's expectations.
In her case plan, Mother was required to participate in weekly therapy to address
self-esteem issues and her poor decisionmaking that had placed Logan at risk at the time
of her arrest. After her services were terminated, Mother continued to discuss with her
therapist how to achieve empathy with her children and place their needs before her own.
She was then able to progress beyond resolving her depression and parenting issues to
reach the issues about her relationship with Father, such as power and control. Mother
understood that Father would be incarcerated for a lengthy period of time and she would
have to support her children without him. By June 2014, her therapist felt that she would
be able to avoid Father's influence.
Mother also points to the evidence that her previous use of marijuana had been a
coping mechanism for her depression, and she now understood how to use other coping
mechanisms and had remained drug free. Even though she had substantially complied
with her drug recovery services, she did not complete their reporting requirements, but
under her particular circumstances, that was not a material parenting issue. Further,
Mother had obtained housing with her aunt and thus she now had a greater support
system, beyond Father, should her depression return. From this evidence, Mother argues
that changed circumstances were demonstrated.
14 Mother correctly states that the mere diagnosis of a parent's mental illness does not
constitute detriment to a child in his or her custody. (See In re James R. (2009) 176
Cal.App.4th 129, 136.) The trial court commended Mother for her efforts in addressing
her depression issues, particularly after her reunification services were terminated, and
her depression issues evidently did not play a large role in the court's reasoning. Even so,
by the time that the juvenile court decides that a parent's reunification services should be
terminated, the dependency focus has shifted from reunification toward how best to
promote the circumstances of permanency and stability for the child. (In re J.C. (2014)
226 Cal.App.4th 503, 527.) Mother was required to establish how her requested
modification would advance Logan's need for permanency and stability. (Ibid.)
Although her evidence shows that Mother may be changing, in light of the entire
record, we are not persuaded that Mother showed sufficiently changed circumstances on
the essential issues that brought Logan into the dependency system. The trial court had
an ample basis in the record to have ongoing serious concerns about the intertwined
issues of Mother's relationship with Father, and her tenuous stability as a parental figure
for Logan. The court noted at the hearing that it remained unclear why, in therapy,
Mother had not more completely discussed her problems with Father in the context of her
parenting issues, except that it appeared she did not wish to address those issues and any
risk that they continued to pose to Logan.
In deciding whether ordering placement of Logan with Mother was in his best
interests, the court specifically addressed the modification factors set out in In re
15 Kimberly F. (1997) 56 Cal.App.4th 519. These include (1) the seriousness of the
problem leading to the dependency; (2) the relative strength of the child's bonds with the
parent and with the caretaker; (3) the degree to which the problem could be easily
resolved.3 (Id. at p. 532.)
The court evaluated the seriousness of the problem leading to dependency as high,
because of Logan's exposure to the potentially dangerous situations of arrest and drug
violence. Mother came to understand how the serious offenses of drug use and
trafficking posed risks to her children, and argues that since she too had suffered from her
poor choices, she presumably was unlikely to reoffend. However, Mother's choices to
transport drugs more than once showed some pattern or willingness to accommodate
Father's wishes above her own, and it remained unclear in the record whether she had
broken free from that influence, to the degree necessary to minimize risk to Logan.
The second factor in the modification decision is the strength of the relative
bonding between Logan and Mother, and Logan and his caretakers. (In re Kimberly F.,
supra, 56 Cal.App.4th 519, 532.) Mother points out that she maintained her relationship
with him through weekly visitation, cared for him during visits, and showed knowledge
of his age appropriate behavior. However, the Agency's social worker had reason to
characterize Mother as a friendly visitor to Logan, not dominantly a parental figure, as
3 Mother points to recent legislation to suggest that as of April 2015, she (a person with a felony drug conviction), may be eligible for additional government financial support, restored welfare and food stamps (CalWORKS and CalFresh) benefits. She asks that we take judicial notice of this change pursuant to Evidence Code section 452, subdivision (c). It is not necessary to do so to resolve the issues presented on appeal. 16 shown in the visitation observations. The court noted that Logan was doing well in the
caregivers' home, although he had previously suffered from trauma and separation
anxiety. Moving him back to Mother's care would likely undermine his stability and was
probably not going to help him, in light of the significant and related issues that Mother
still needed to address concerning the impact Father has upon her life and those of her
children.
The third factor from In re Kimberly F., supra, 56 Cal.App.4th 519, 532 addresses
the relative ease with which dependency issues can be resolved. Although Mother had
made significant progress in understanding when it was important to put the interests of
her children above her own, her insights gained through therapy suggested that the family
problems were not over and could possibly resurface. We are not authorized to reweigh
the evidence. The trial court resolved conflicts in the evidence and concluded that
reasonable inferences should be drawn that the required changed circumstances had not
been demonstrated, to enable the court to grant the motion as promoting Logan's best
interests. (See In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) It was not an abuse
of discretion to find that a preponderance of the evidence did not support the granting of
the modification motion.
III
TERMINATION OF PARENTAL RIGHTS
A. Introduction; Applicable Standards
When the court determines a dependent child is likely to be adopted, the burden
shifts to the parent to show that termination of parental rights would be detrimental to the
17 child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re C.F.
(2011) 193 Cal.App.4th 549, 553; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) As
relevant here, the adoption preference will not apply if termination of parental rights
would be detrimental to the child because the parent has "maintained regular visitation
and contact with the child and the child would benefit from continuing the relationship."
(§ 366.26, subd. (c)(1)(B)(i).)
On review, the appellants bear the burden of demonstrating a lack of substantial
evidence to support the trial court's findings and orders. (In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.) In reviewing the sufficiency of evidence, the reviewing court
makes presumptions in favor of the order, views the evidence in the light most favorable
to the prevailing party, and gives the order the benefit of every reasonable inference. (In
re C.F., supra, 193 Cal.App.4th 549, 553; Autumn H., supra, 27 Cal.App.4th 567, 576.)
The Agency seems to argue for an adapted or hybrid approach for review of such a
decision about the beneficial parental relationship exception. In In re J.C., supra, 226
Cal.App.4th 503, the court applied the substantial evidence standard of review to the
factual issues of whether the parent had maintained regular visitation and contact with the
child and whether the parent proved an existing beneficial parental relationship with the
child. However, as to the weighing test, in which the juvenile court balances the parent-
child relationship against the benefits the child would derive from adoption, the abuse of
discretion test should be applied to evaluate a " ' " 'quintessentially discretionary
decision.' " ' " (Id. at p. 531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
18 Certainly, there is a discretionary component to the trial court's determination of a
"benefit from continuing the relationship" under the terms of section 366.26, subdivision
(c)(1)(B)(i). Based on the respective showings, the court must balance "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." (Autumn H., supra, 27
Cal.App.4th at p. 575.) The court must find "a compelling reason for determining that
termination would be detrimental to the child," (§ 366.26, subd. (c)(1)(B)(i)), due to the
parent's regular visitation and contact with the child, coupled with benefit to the child
from continuing the relationship. (In re C.F., supra, 193 Cal.App.4th 549, 553.)
The weight of authority still applies the substantial evidence test to appeals from
decisions about the beneficial parental relationship exception. (Autumn H., supra, 27
Cal.App.4th 567, 575-577.) In doing so, the appellate court does not redetermine the
credibility of witnesses or reweigh the evidence presented. (In re L.Y.L., supra, 101
Cal.App.4th at p. 947.)
B. Second Prong Criteria and Analysis
The juvenile court appropriately noted that Mother had satisfied the first prong or
requirement under section 366.26, subd. (c)(1)(B)(i)), that a parent continue regular
visitation and contact with the child, and we accept that finding here. As to Father, the
court deemed that he had sufficiently attempted to participate in supervised visitation at
jail, even though it had been terminated because of its very upsetting effect on Logan. It
is also not disputed that Logan is likely to be adopted, despite his minor speech delays
related to learning two languages. The caregivers were interested in adopting him, but if
19 they were unable to do so, there were 116 approved San Diego County families interested
in adopting a child with Logan's characteristics.
We accordingly evaluate the record for evidence on the court's finding that there
would be no substantial, overriding benefit gained by Logan if his child-parent
relationship with Mother were to be continued. (Autumn H., supra, 27 Cal.App.4th at
pp. 575-576.) Father makes no such personal claim, only joining in Mother's. The
evidence received by the juvenile court on Mother's section 388 petition was also
considered with the section 366.26 issues.
As described in Autumn H., the beneficial relationship exception must be
examined on a case-by-case basis, taking into account the many variables that can affect
the parent-child relationship. (Autumn H., supra, 27 Cal.App.4th. at pp. 575-576; In re
J.C., supra, 226 Cal.App.4th 503, 532.) Among the variables to be considered in
evaluating the benefits in a parental relationship are the child's age, the amount of time
the child spent in the parent's care, whether the interactions are positive or negative, and
whether the child has particular needs that the parent can satisfy. (In re Angel B. (2002)
97 Cal.App.4th 454, 467.)
At the permanency stage, the bond the child shares with the parent and the harm
that might arise from terminating parental rights must be balanced against what is to be
gained in a permanent stable home, and "it is only in an extraordinary case that
preservation of the parent's rights will prevail over the Legislature's preference for
adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We look to
whether severing Mother's relationship with her natural child would harmfully deprive
20 the child of a substantial, positive emotional attachment. (In re J.C., supra,
226 Cal.App.4th at pp. 528-529; see In re C.F., supra, 193 Cal.App.4th 549, 553-554.)
Even without day-to-day contact and interaction, a parental relationship may be so
"strong and beneficial" that "termination of parental rights would be detrimental to the
child." (In re C.F., supra, 193 Cal.App.4th 549, 555, fn. 5.) More than "some measure
of benefit" must be conferred through the relationship with the parent. (Id. at pp. 558-
559.) " 'Interaction between [a] natural parent and child will always confer some
incidental benefit to the child.' " (Id. at p. 555.) The parent must show he or she occupies
a parental role in the child's life, resulting in a significant, positive, emotional attachment
between child and parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
These proceedings addressed the issue of substantial or incidental benefit from this
parent-child relationship in several ways. Logan was less than a year old when these
issues were brought before the court, and there were continuing concerns about Mother's
likelihood to comply with Father's wishes and perceived needs over Logan's needs.
Coping with Father and their new baby were significant remaining challenges in Mother's
life, and the Agency's assessment report stated that Mother wavered back and forth on
whether she wants to continue her relationship with Father. Mother sometimes gave
conflicting accounts of the extent of her visitation with Father, and 90 percent of her time
in therapy did not include discussing her problems with Father with the counselor.
With respect to the emotional attachment between Mother and son, the author of
the Agency's assessment report, social worker King, observed five visits in mid-2014,
and observed that they laughed and had a good time, and Logan asked Mother for help
21 when necessary. Although Logan had suffered from separation anxiety when he first left
Mother's care, he no longer had a problem separating from her. After visits, Logan
looked forward to going home to his caregivers, calling them Mama and Papa, and was
not upset to leave Mother (calling her "Sandy") behind. The social worker described
Mother as appearing to be a friendly visitor with Logan. The evidence showed that
Mother and Logan had comfortable and familial-style interactions, but that the
relationship had not progressed beyond friendly, supervised visitation. This was
significant evidence that Mother's interactions with Logan had not created an overriding
strong parental bond, and that he would not be caused emotional harm if they no longer
regularly occurred. (In re Angel B., supra, 97 Cal.App.4th 454, 468.) Likewise, Logan
was not observed to relate to Father as a parental figure.
The trial court had the responsibility of analyzing the evidence about all the
circumstances in Logan's life, and had an adequate basis to conclude that he did not have
any special needs that Mother especially would satisfy. To the extent Mother relies on In
re S.B. (2008) 164 Cal.App.4th 289, she cannot show the required similarities. In S.B.,
this court stated that the beneficial relationship exception does not require that a parent
establish that a child's primary attachment was to him or her. (Id. at p. 299.) Since we
issued our opinion in S.B., we have published other cases that seek to discourage any
improper and inaccurate reliance upon that opinion. (See In re Jason J. (2009) 175
Cal.App.4th 922, 937.) We have expressly limited the holding of S.B.: "[W]e once again
emphasize that S.B. is confined to its extraordinary facts. It does not support the
proposition a parent may establish the parent-child beneficial relationship exception by
22 merely showing the child derives some measure of benefit from maintaining parental
contact." (In re C.F., supra, 193 Cal.App.4th 549, 558-559.)
Mother did not show that her relationship with Logan amounts to an extraordinary
case, such as one in which an older child's enduring bond with a parent is entitled to be
preserved despite the parent's shortcomings, because it would be harmful to the child to
interfere with that enduring bond. (See, e.g., In re Scott B. (2010) 188 Cal.App.4th 452,
471.) Mother did not bring forward evidence to show that her relationship with Logan
would promote his well-being to such a degree " 'as to outweigh the well-being the child
would gain in a permanent home with new, adoptive parents.' " (In re J.C., supra, 226
Cal.App.4th at pp. 528-529.) The court performed the appropriate balancing analysis,
and substantial evidence supports its finding that the second prong of the beneficial
parent-child relationship exception was not met. (§ 366.26, subd. (c)(1)(B)(i).)
DISPOSITION
The judgment and order are affirmed as to both Appellants.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.