Filed 1/28/22 In re M.E. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.E. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E077620
Plaintiff and Respondent, (Super. Ct. Nos. J279266 & J283488) v. OPINION T.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
Steven O’Neill, Interim County Counsel, and Pamela J. Walls, County Counsel,
for Plaintiff and Respondent.
1 I.
INTRODUCTION
T.B. (Mother) appeals from a juvenile court order terminating her parental rights
to two of her five children, three-year-old M.E. and two-year-old K.E. (Welf. & Inst. 1 2 Code, § 366.26), and an order denying her section 388 petition. Mother contends the
juvenile court abused its discretion in denying her section 388 petition without an
evidentiary hearing. She also argues the court’s order finding the beneficial relationship
exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply should be reversed and
the matter remanded because the court’s findings did not comply with the principles
announced in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). We find no error and
affirm the juvenile court’s orders.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and
Family Services (CFS) on December 31, 2018, after a referral was received alleging
emotional abuse, caretaker absence/incapacity, and general neglect. Mother had been
having “‘mood swings’” and threatening people with a knife. Father had taken then two-
month-old M.E., who was dressed only in a onesie, and placed her in the middle of a
1 All future statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 J.E. (Father) is not a party to this appeal.
2 desert road in 30 degree weather. Father had choked and punched Mother. Mother had
vandalized a taxi cab belonging to the maternal aunt’s boyfriend, causing $1,500 in 3 damages. Both parents were intoxicated and taken into custody.
M.E. was taken into protective custody, and on January 3, 2019, a petition was
filed on behalf of M.E. pursuant to section 300, subdivisions (a) (serious physical harm),
(b) (failure to protect), and (g) (no provision for support). M.E. was formally detained
and removed from parental custody the following day at the detention hearing. Mother
was provided with visitation two times per week for two hours, and CFS was ordered to
provide the parents with services pending the case plan. Mother had a history with
mental illness. When she was taken into custody, she informed the officers that she was
schizophrenic and had many different personalities. She also made bizarre and suicidal
statements, screamed, and inappropriately laughed while in the patrol unit. Mother
acknowledged that she had a history with mental illness and noted that she was not
currently seeing a psychiatrist. She also admitted the domestic violence incident
perpetrated by Father, but noted that it was “‘the first time’” and that she intended to stay
with Father because he supported her.
Father was not interested in participating in pre-dispositional services. Mother had
begun participating in services and was attending Alcoholic Anonymous/Narcotics
3 Father was charged with assault with a deadly weapon, child endangerment, and making criminal threats. Mother was charged with vandalism.
3 Anonymous (AA/NA) and parenting classes. She had three negative drug test results, but
was a no show for two dates.
The jurisdictional hearing was held on April 17, 2019. Neither Mother nor Father
were present in court. The juvenile court found true all allegations in the petition except
for the section 300, subdivision (g) allegations, which the court dismissed.
The contested dispositional hearing was held on June 11, 2019. Both parents were
present. The juvenile court declared M.E. a dependent of the court, formally removed the
child from parental custody, and provided the parents with reunification services and
supervised visitation two times per week for two hours or one time a week for four hours.
The court also ordered the parents to undergo a psychological evaluation, over the
parents’ objections.
By the six-month review hearing, CFS recommended that reunification services
continue for Mother and that services be terminated for Father. Mother had made good
progress with her case plan, and claimed that she was currently not in a relationship with
Father. She was employed and resided in a hotel, but was working on obtaining stable
housing. She had completed a domestic violence program, eight sessions of anger
management classes, four sessions of general counseling, and eight sessions of parenting
education. However, Mother had approximately 12 “‘no shows’” for random drug
testing. She also had not been attending AA/NA meetings, did not appear to be working
on her 12-steps, and had not completed relapse prevention/aftercare classes. Father did
not want to participate in services.
4 Mother’s psychological evaluation revealed that she had a history of mental
illness, inconsistency in taking her prescribed medications, problems with anger
management, history of substance use, and abuse since adolescence. The psychologist
diagnosed Mother with “mood regulation difficulties, specifically Bipolar I Disorder,” in
which she had periods of depressive and manic episodes. She was also diagnosed with
“Attention-Deficit/Hyperactivity Disorder, Alcohol Use Disorder, and Amphetamine-
Type Substance Use Disorder, in sustained remission.” The psychologist concluded that
Mother’s history of substance abuse and her failure to recognize it as a problem placed
her at risk for relapse and that her substance abuse exacerbated her mood disorder and
compromised her ability to manage anger. The psychologist recommended that Mother
receive psychoeducation regarding her mental illness and to help manage her mood,
referrals for medication consultation with a psychiatrist, and continued participation in
individual counseling and substance abuse treatment, anger management, domestic
violence, and parenting classes.
Mother regularly visited M.E. with no concerns. During visits, Mother engaged
with M.E. in a loving and positive manner, played with the child, and actively attended to
the child’s basic needs.
At the six-month review hearing on December 11, 2019, the juvenile court
continued Mother’s reunification services and terminated Father’s services.
Five days later, on December 16, 2019, CFS filed a petition on behalf of K.E.
pursuant to section 300, subdivisions (b), (g) and (j). Four days earlier, CFS had received
5 a referral alleging general neglect after Mother had accidently revealed to a visitation
monitor that she had given birth to a baby in November 2019. Mother reluctantly signed
a declaration authorizing temporary detention of then one-month-old, K.E. She was
emotional, denied hiding K.E. from CFS, and did not understand why K.E. had to be
detained since she was doing “‘everything’” asked of her by CFS. Mother also stated that
since CFS had never asked her about her pregnancy, “she did not feel the need to openly
discuss it.” The social worker explained that Mother had missed multiple drug tests,
which was a cause for concern. Mother was a “no show” for random drug testing on
August 8, 2019, August 16, 2019, November 14, 2019, November 20, 2019, and
December 9, 2019.
On December 17, 2019, K.E. was formally detained and placed in the same foster
home with M.E. K.E. appeared safe and well cared for at the time of her removal.
Mother had unsupervised visits with K.E. at the CFS office and was reported to be
attentive to the child and properly engaged. While Mother had made progress on her
reunification plan, she still had not completed a relapse prevention program and failed to
consistently drug test. She also needed to complete a parenting program tailored to the
age group of her children. In addition, despite not being in a relationship with Father,
Mother had relied on Father financially to support her. Father was also present at K.E.’s
birth. It also appeared that Mother had not been compliant with her psychotropic
medication and she had not completed her individual counseling. CFS believed that
6 Mother had not fully benefitted from the services provided to her, but noted that Mother
was working diligently towards reunifying with both children.
CFS’s review of Mother’s child welfare history revealed that Mother had a son,
J.W., who was in the care of the Los Angeles County Department of Children and Family
Services (LA DCFS) from September 2015 through October 2017. Mother was offered
reunification services through LA DCFS. Her services were eventually terminated and
J.W. was placed with the maternal grandmother under legal guardianship. When CFS
inquired about J.W., Mother stated that it was not CFS’s business to know about her son.
CFS also discovered that Mother had another child in the state of Texas. When CFS 4 inquired about this child, Mother reported the child was adopted.
On December 2, 2020, Mother informed CFS that she was pregnant and due in
March 2021. She claimed that she was receiving prenatal care and did not know the
identity of the father.
On February 13, 2020, Mother submitted a waiver of rights form, and the parties
participated in mediation. At mediation, CFS agreed to provide additional reunification
services to Mother, and Mother agreed to complete counseling, parenting classes,
domestic violence classes, and consistently drug test. Mother also agreed to attend
4 CFS later discovered that Mother had a prior dependency case in New Mexico involving J.W. and another child, Z. J.W. was with the maternal aunt when she was arrested for dealing methamphetamines. The children had been abandoned by Mother after she had been arrested and incarcerated in Texas and New Mexico. When J.W. was detained, he had an injured top lip, burn or scald marks on both his feet and numerous bruises or marks on his buttocks and on the back of both thighs. Mother failed to visit J.W. or to participate in reunification services.
7 psychiatric appointments and work with CFS in securing a shelter or transitional housing
as soon as possible.
On February 13, 2020, the juvenile court found the allegations in K.E.’s petition
true except the section 300, subdivision (g) allegations, which were dismissed. The court
declared K.E. a dependent of the court and provided Mother with reunification services
and unsupervised visitation a minimum of one time a week for two hours.
Mother regularly participated in her services, but continued to struggle with
consistently drug testing, remaining employed, and obtaining stable housing. CFS had
provided Mother assistance with housing at Mama’s House in Palm Desert that provided
housing, counseling, substance abuse treatment, employment assistance, and assistance in
educational goals. Mother, however, declined this placement, stating “‘I’ll think on it,
but look I got me this far, being where I am and I am positive I will continue to do it.’”
Mother claimed she later called the director and was informed there were no longer any
openings and to call back in three weeks.
CFS also helped Mother secure financial assistance from the welfare office and
childcare. Mother wanted the children’s caregivers to provide childcare after
reunification, but the caregivers were unable to do so. Father had been released from jail
and was providing some financial support. Mother claimed that she had stabilized and
was compliant with her psychotropic medication, but the social worker discovered her
medication was untouched and had expired. Mother stated she did not need the
medication. Mother was participating in counseling and parenting classes, but had not
8 yet completed them. In addition, she had seven no-shows for random drug testing.
Mother’s visits with the children, however, were consistent with no reported concerns
noted.
By the June 2020 18-month review hearing in M.E.’s case, Mother was staying
temporarily with the maternal aunt. CFS provided Mother with several housing resources
however, Mother claimed that she did not receive a letter notifying her of the availability
of an apartment. She also claimed to not receive a call back from another housing
resource. She did not want to go to Mama’s House because it was a shelter and she had
the financial means to find an alternative place. She was working at Stater Brothers and
Burger King. Mother continued to insist she could obtain housing on her own, even after
the social worker warned her the 18-month review hearing was approaching and she was
running out of time. When the social worker followed up with Mother on July 24, 2020
concerning housing, Mother informed the worker that she was no longer residing with the
paternal aunt and was staying at different hotels each night. Mother stated that she had
not pursued the housing resources CFS had provided. The social worker gave Mother
another local resource that provided mental health services and housing. Mother had
missed three random drug tests during the reporting period; two conflicted with her work
schedule and one because she forgot a mask. She had completed her parenting and anger
management classes and was almost done with her counseling requirement. She had also
been compliant with her psychotropic medication.
9 Mother continued to regularly visit the children. The caregivers had allowed
Mother to have visits in their home rather than video visits due to the pandemic. During
the visits, Mother began to ask the caregivers to change the children and to complete
other tasks for her. In addition, Mother had Father drive her to a visit when the
caretaker’s address was confidential. CFS thus requested the visits return to supervised
visits.
On June 30, 2020, the juvenile court ordered the visits to return to supervised and
continued the 18-month review hearing to October 7, 2020.
On August 13, 2020, the juvenile court continued Mother’s reunification services
in K.E.’s case. Mother’s visits continued to be supervised one time a week for two hours,
and she consistently visited the children. During the visits, Mother met the children’s
needs. The only concern noted was Mother’s failure to bring activities for the children to
engage in during the visits.
By October 2020, Mother had missed two drug tests in June 2020. She had been
laid off from her jobs and was receiving unemployment. Mother believed she may be
pregnant again and had applied for pregnancy benefits. Mother’s counselor
recommended six more counseling sessions to allow Mother to meet her goals. Mother
was initially hesitant, believing she had met her case plan requirements, eventually
agreed to participate in additional sessions.
At the October 7, 2020 18-month review hearing in M.E.’s case, the juvenile court
terminated Mother’s reunification services. The court found that it was not in M.E.’s best
10 interest to set a section 366.26 hearing at that time and ordered a permanent plan of foster
care with return home. The court granted Mother reunification services under M.E.’s
permanent plan for a period not to exceed six months and provided Mother with
supervised visitations once a week for two hours. 5 In February 2021, Mother gave birth to her fifth child, J.B. By March 2021, CFS
recommended Mother’s reunification services be terminated and a section 366.26 hearing
be set for K.E. and M.E. with a specific goal of adoption. Mother had received 14
months of services for K.E. and 25 months of services for M.E. Nonetheless, Mother
continued to deny any domestic violence issues with Father, failed to take any
responsibility for the incidents that led to the children’s removal, and blamed CFS for
K.E.’s removal. She reported that she was compliant with taking her psychotropic
medication, even though she had not seen a psychiatrist in five months and complained of
having days where she could not get out of bed. She would not disclose the prescriber of
her medication or sign a release to allow CFS to confirm her claim that she was
compliant with her medication. She also continued to have an unstable living situation.
She refused to reside temporarily in a shelter or program referred to her by CFS, despite
the program allowing Mother to reside there with her children, because it interfered with
her lifestyle. Mother insisted that she could find housing on her own, but was alternating
from living with family and friends to hotel rooms.
5 Mother’s fifth child J.B. was detained and placed with her half-siblings, M.E. and K.E.
11 Mother’s visits had previously been ordered unsupervised, but reverted to
supervised in June 2020 once the caregivers reported Mother was not overseeing the
children’s basic needs. During visits, Mother fell asleep while the children played
unattended and had to be woken up at the end of visits. She also sat on the floor and
directed then two-year-old M.E. to throw away the diapers and clean up the food and
toys. Mother, however, made efforts to engage with the children, did their hair, and
played with them. She reported that she did not know why she had children so close in
age as she could not manage three babies.
On March 9, 2021, the juvenile court granted the caregivers’ petitions for de facto
parent status. The caregivers were also designated as the children’s educational rights
holders. M.E. had been placed with the caregivers since December 12, 2019, and K.E.
since May 27, 2020. Both children were very bonded and attached to the caregivers and
looked to them to have their needs met. They also looked to their caregivers for comfort
and care and were thriving in their caregivers’ home. The caregivers were meeting the
children’s medical and developmental needs and desired to provide them with stability
and safety in a loving home. The children called their caregivers “dad” or “daddy.” The
caregivers were willing to have Mother maintain a relationship with the children, if
appropriate and in the children’s best interests.
On March 9, 2021, the juvenile court terminated Mother’s services under M.E.’s
plan, ordered a permanent plan of adoption for M.E., and set a 366.26 hearing. The court
also terminated Mother’s reunification services for K.E. and set a 366.26 hearing in
12 K.E.’s case. The juvenile court explained it was not terminating Mother’s services
because of her housing difficulties, but due to her failure to benefit from the services
provided to her.
On August 5, 2021, the same day as the section 366.26 hearing, Mother filed a
section 388 petition, seeking a return of the children to her custody, or in the alternative,
reinstatement of reunification services. As a change of circumstances, Mother alleged
that she had completed parenting classes, a domestic violence program and anger
management classes, had attended AA/NA meetings, and had obtained stable housing. In
support, she attached certificates of competition and a copy of a lease. Mother claimed it
was in the children’s best interest to be raised by their biological mother.
On August 9, 2021, CFS informed the court that Mother continued to be reliant on
the eldest child M.E. during visits. While she remained seated, Mother had directed M.E.
to pick up food and water bottles during visits. She had also directed M.E. to assist her
with the younger children. Although Mother played music for the children and sang with
them, her interaction with the children was minimal. Mother tended to remain seated in
one spot during visits. The children had been observed to regress during visits with
Mother, and when their caregiver arrived, the children eagerly ran to their caregiver to
leave. Mother had reported to the visitation monitor that she heard voices when off her
medication, but that when she took her medication, she was sleepy. She had also stated
that if she had a choice, she would not have had the children and would chose M.E. over
the other children because M.E. was more bonded to her. In addition, despite not having
13 a driver’s license, Mother drove to her visits. CFS was concerned whether Mother would
be able to meet the children’s needs if she reunified with the children. CFS worried that
Mother still struggled with her mental health and aggression, as well as the children’s
lack of bond to Mother.
On August 11, 2021, the juvenile court denied Mother’s section 388 petition. The
court found the request did not state new evidence or a change of circumstances and that
it was not in the children’s best interests. The court thereafter proceeded to the contested
section 366.26 hearing in K.E. and M.E.’s cases.
At the conclusion of the section 366.26 hearing, citing Caden C., supra, 11 Cal.5th
614, the juvenile court found that although Mother had consistently visited the children,
Mother had not developed a significant bond or relationship to the children such that the
severance of that relationship would be detrimental to the children. The court concluded
that the children were not bonded to Mother, but to their caregivers as their parental
figures, and that the parental relationship between Mother and the children was incidental
and not significant. The court also determined that the benefits of maintaining a parent-
child relationship were not outweighed by the benefits of adoption. The court thus found
the beneficial parental relationship exception to adoption did not apply, terminated
parental rights, and concluded the children were adoptable. Mother timely appealed.
14 III.
DISCUSSION
A. Denial of Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section
388 petition seeking return of the children to her care, or alternatively, reinstatement of
services and increased visitation without an evidentiary hearing. Mother argues she made
the requisite prima facie showing entitling her to a hearing. We disagree.
We review the juvenile court’s denial of Mother’s section 388 petition without an
evidentiary hearing for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075,
1079.) The denial must be upheld unless we can determine from the record that the
juvenile court’s decision exceeded the bounds of reason. When two or more inferences
can reasonably be deduced from the facts, we have no authority to substitute our decision
for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
A petition to modify a juvenile court order under section 388 must allege facts
showing new evidence or changed circumstances exist and that changing the order will
serve the child’s best interests. (§ 388, subd. (a)(1)-(2); In re Nolan W. (2009) 45 Cal.4th
1217, 1235.) Courts must liberally construe a section 388 petition in favor of its
sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, section 388
requires a petitioner to make a prima facie showing of both elements to trigger an
evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance,
the parent makes a prima facie showing of changed circumstances, the juvenile court can
15 still deny the petition without an evidentiary hearing if the parent fails to make a prima
facie showing that the relief sought would promote the child’s best interests. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188-190; see In re Alayah J. (2017) 9
Cal.App.5th 469, 478; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.)
“‘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.’” (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section
388 petitions with general, conclusory allegations do not suffice. Otherwise, “the
decision to grant a hearing on a section 388 petition would be nothing more than a
pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “In
determining whether the petition makes the necessary showing, the court may consider
the entire factual and procedural history of the case.” (In re Jackson W. (2010) 184
Cal.App.4th 247, 258.)
Here, Mother’s section 388 petition stated that she had completed a parenting
program, a domestic violence program, and anger management classes and that she had
attended AA/NA meetings and obtained stable housing. She claimed it was in the
children’s best interest to be raised by their biological mother. The petition failed to
explain why return of the children to her care or reinstatement of reunification services
would be in the best interest of the children. This failure was fatal to Mother’s claim
under section 388. The petition must show how a change of order would be in the best
interest of the children. Moreover, as multiple Courts of Appeal have recognized,
16 completion of programs at a late stage in proceedings, while commendable, is not a
substantial change of circumstances within the meaning of section 388. (In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223; In re A.S. (2009) 180 Cal.App.4th 351, 358
[completion of classes and participation in counseling not enough to show changed
circumstances where father still unable to “provide the children a stable, safe, permanent
placement”].) Thus, the juvenile court did not abuse its discretion in summarily denying
Mother’s section 388 petition.
Parent and child share a fundamental interest in reuniting up to the point at which
reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, overruled on
other grounds in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) By the time of a
section 366.26 hearing to select and implement a child’s permanent plan, however, the
interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated, the court’s
focus shifts from family reunification toward promoting the child’s needs for permanency
and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable
presumption that continued foster care is in the best interests of the child. (Id. at p. 310.)
“A court hearing a motion for change of placement at this stage of the proceedings must
recognize this shift of focus in determining the ultimate question before it, that is, the best
interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Here, the evidence established that the children had spent most of their young lives
with their caregivers. M.E. had been placed with the caregivers when she was a year old,
17 since December 12, 2019, and K.E. when she was six months old, since May 27, 2020.
Both children were very bonded and attached to the caregivers and looked to them for
comfort and to have their needs met. They were thriving in their caregivers’ home, and
the caregivers, who desired to adopt them, were meeting the children’s needs.
Meanwhile, there was no evidence to suggest the children were bonded to Mother or that
Mother had benefitted from the services provided. She continued to live an unstable
lifestyle, questioned why she had the children, minimized her mental health issues,
acknowledged that she had no bond with the younger children, and was reliant on M.E.
and the caregivers during visits.
Our role as a reviewing court is to assess whether the court below committed error
based on the record before it, and we do not reweigh evidence or rely on evidence that
was not in the court’s record at the time it made its order. (In re James V. (1979) 90
Cal.App.3d 300, 304.) Based on the record before the juvenile court, we find the court
did not abuse its discretion in denying the section 388 petition without an evidentiary
hearing.
B. Beneficial Relationship Exception
Mother contends the juvenile court’s order finding the beneficial relationship
exception to adoption did not apply should be reversed and the matter remanded because
the court’s findings did not comply with the principles articulated in Caden C., supra, 11
Cal.5th 614.
18 Section 366.26 governs the proceedings at which the juvenile court must select a
permanent placement for a dependent child. The express purpose of a section 366.26
hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26,
subd. (b).) If the court determines it is likely the child will be adopted, the statute
mandates termination of parental rights unless the parent opposing termination can
demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) &
(B).) In other words, the court must select adoption as the permanent plan unless “the
parent shows that termination would be detrimental to the child for at least one
specifically enumerated reason.” (Caden C., supra, 11 Cal.5th at p. 630.) The
exceptions allow “‘the court, in exceptional circumstances [citation], to choose an option
other than the norm, which remains adoption.’” (Id. at p. 631, quoting In re Celine R.
(2003) 31 Cal.4th 45, 53.)
Mother contends the exception found in section 366.26, subdivision (c)(1)(B)(i),
i.e. the beneficial relationship exception, applied in her case. Recently, in Caden C., our
Supreme Court explained, for this exception to apply, a parent is required to show “(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 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.’” (Id. at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit from
19 continuing the relationship.’ [Citation.] Again here, the focus is 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.’” (Ibid., quoting
In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) “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, at p. 633.)
The Supreme Court’s decision in Caden C. focuses primarily on the third element.
The court rejected reliance on whether the parents have complied with their reunification
services or case plan and explained, “Because terminating parental rights eliminates any
legal basis for the parent or child to maintain the relationship, courts must assume that
terminating parental rights terminates the relationship. [Citations.] What courts need to
determine, therefore, is how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an adoptive home without
the parent in the child’s life. [Citation.] . . . [T]he effects might include emotional
instability and preoccupation leading to acting out, difficulties in school, insomnia,
anxiety, or depression [or] . . . a new, stable home may alleviate the emotional instability
and preoccupation leading to such problems, providing a new source of stability that
could make the loss of a parent not, at least on balance, detrimental. [¶] In each case,
then, the court acts in the child’s best interest in a specific way: it decides whether the
20 harm of severing the relationship outweighs ‘the security and the sense of belonging a
new family would confer.’ [Citation.] ‘If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination would ‘harm[]’ the child,
the court should not terminate parental rights.” (Caden C., supra, 11 Cal.5th at p. 633,
quoting Autumn H., supra, 27 Cal.App.4th at p. 575.)
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, italics added; accord, Caden C., supra, 11 Cal.5th at p. 632 [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.”].) “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, at pp. 637, fn. 6., 638, fn. 7.) “A parent must
show more than frequent and loving contact or pleasant visits.” (In re C.F. (2011) 193
Cal.App.4th 549, 555.)
We review the juvenile court’s findings as to whether the parent has maintained
regular visitation and contact with the child and the existence of a beneficial parental
relationship for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We
21 review the third step—whether termination of parental rights would be detrimental to the
child due to the child’s relationship with his or her parent—for abuse of discretion. (Id.
at p. 640.) We do not reweigh the evidence, evaluate the credibility of witnesses or
resolve evidentiary conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, the juvenile court found that Mother had met the first element of regular or
consistent contact with the children. Substantial evidence in the record supports that
Mother maintained regular visitation and contact with the children. The court then
addressed the second element and impliedly the third element, noting Mother had not met
these elements.
The court explained as follows: “The first prong by mom is met, not really by
dad. The second prong hasn’t been met by them. At this issue with the Cayden [sic] C.
language where it appears that we’re carving out something that is different than
occupying a parental role, because it’s possible to have a significant relationship, a
parental bond with the child while not occupying that role. That’s kind of the way I read
that case anyway. Maybe I’m wrong, but it seems like they’re trying to make a
distinction, that, hey, wait a second, maybe we don’t necessarily have to prove a parental
role, but we have to prove a significant relationship or something like that, a significant
bond. [¶] But in either case, here . . . in this case, we only have – it is a distinguished
role because I only have evidence of Mother’s perception of the relationship. Clearly all
of the evidence sort of stands, as you pointed out, that the children are clearly strongly
bonded to their caregivers as their parental figures as evidenced by reactions and things
22 like that. Even, I think, as testified to by mom so clearly, I don’t find that there is a
significant relationship or bond there. There is an incidental bond for sure, and I don’t
know the specular of qualification between incidental to significant wherein having a
parent that visits and they know that’s their parent, where does that fit, but that’s where
this is. [¶] This isn’t significant. It is definitely incidental. There is some benefit. It
could be beyond incidental. I’m not sure, frankly, but I think this is part of that whole
sliding scale that we’re just kind of looking at, but it’s not even close to significant to
raise a point that would satisfy this proposed new prong that we’re talking about. And
also there is no parental role fulfilled, so . . . I understand that we’re kind of getting away
from that language of parental role. I understand we’re kind of looking beyond. I’m just
kind of talking about both things. In any event, neither is satisfied.”
While the juvenile court did not artfully explain its reasoning of the principles
announced in Caden C., we disagree with Mother that the court did not comply with the
principles articulated in Caden C., supra, 11 Cal.5th 614 or that the matter must be
remanded. Assuming for the sake of argument that the children would benefit from
continuing their relationship with Mother, the issue is whether the children shared such a
“substantial, positive attachment” to Mother that the harm in severing the parental
relationship would “outweigh[ ] ‘the security and the sense of belonging a new family
would confer.’” (Caden C., supra, at pp. 636, 633.) The juvenile court did not abuse its
discretion by determining that any benefits derived from the children’s relationship with
Mother did not outweigh the benefit of stability through adoption. Under the balancing
23 test set forth in Autumn H. and approved by in Caden C., we conclude the juvenile court
acted within its discretion in terminating Mother’s parental rights.
It was undisputed Mother loved the children and had generally positive visits with
them. The record also shows that the children enjoyed their visits with Mother. But, as
previously noted, “[a] parent must show more than frequent and loving contact or
pleasant visits.” (In re C.F., supra, 193 Cal.App.4th at p. 555.) 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 the children presumably loved Mother and enjoyed their visits with her, there
was substantial evidence that the children were bonded to their caregivers, whom they
considered parental figures. This is especially likely considering M.E. had been placed
with the caregivers since age one, and K.E. since age six months, and had been in their
caregivers’ home for most of their young lives.
The relationship Mother enjoyed with the children during their visits is not
sufficient to demonstrate that Mother and the children shared such a substantial, positive
emotional attachment that terminating Mother’s parental rights would greatly harm the
24 children. The extent of Mother’s influence over the children was necessarily limited; the
record supports that the caregivers acted as primary influential parental figures in the
minds of these young children. They did not look to Mother to attend to their physical,
developmental, emotional, and other daily needs. (Cf. Autumn H., supra, 27 Cal.App.4th
at p. 575 [positive emotional attachment results from an adult’s attention to a child’s
needs for physical care, nourishment, comfort, affection, and stimulation, typically
arising from day-to-day interaction, companionship, and shared experiences].)
Further, the record supports that the children’s well-being would greatly improve
when permanently adopted by fully attentive parents. Since being placed with their
caregivers, the children were thriving due to excellent care by their caregivers. (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”].) Perhaps most importantly, adoption would bring the
children stability and permanency.
Mother also did not present any evidence that the children 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. There was no evidence that
terminating Mother’s parental rights would be detrimental to the children. Mother did
not, for example, offer a bonding study or other evidence showing that termination of
parental rights would have a significant detrimental effect on the children’s lives. In fact,
the social worker reported that the children digressed during visits with Mother.
25 The record fails to show that Mother’s relationship with the children was so
beneficial to them that it outweighed the benefit they would gain from being adopted.
(Autumn H., supra, 27 Cal.App.4th at p. 575; Caden C., supra, 11 Cal.5th at pp. 631,
633-634, 636.) Accordingly, the juvenile court did not err in finding that the beneficial
relationship exception does not apply in this case.
IV.
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
FIELDS J.