Filed 10/10/23 In re S.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.P., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E081330
Plaintiff and Respondent, (Super.Ct.No. J287288)
v. OPINION
L.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, Joseph R. Barrell, Deputy County Counsel for
Plaintiff and Respondent.
1 Defendant and appellant L.P. (Mother) appeals after the termination of her
parental rights to S.P. (born Nov. 2018, hereinafter Minor) at a Welfare and Institutions
Code section 366.261 hearing. Mother contends on appeal that (1) the juvenile court
erred by denying her section 388 petition without a hearing; and (2) the juvenile court
erred by finding the beneficial-parental bond exception to termination of parental rights
did not apply.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
On November 3, 2020, the San Bernardino County Children and Family Services
(Department) received a 10-day response referral for Minor due to the death of a sibling,
Z.P., who was born in November 2019 and died less than one year later. Mother had two
other children, S.H., who was born in June 2011, and L.J., born in June 2010
(collectively, Siblings). It was reported that Z.P. had died while in Mother’s care.
Law enforcement who responded to the call of Z.P.’s death on November 4, 2020,
spoke with Mother. Mother reported having a party at the residence on the prior day.
Responding officers found beer cans throughout the residence, baggies of marijuana on
the floor, pills on window sills, and an unknown white substance on the kitchen counter.
Mother appeared to be intoxicated. Mother advised law enforcement that on November
3, 2020, at approximately 4:00 a.m., Mother gave Z.P. Tylenol because Z.P. had a cold.
Mother and Z.P. both slept on the floor in the living room. At around 9:00 a.m. the next
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 morning, Mother woke up and helped her other children get ready for school. She
noticed that Z.P. was sleeping on her stomach. Mother went back to sleep until 1:30 p.m.
When Mother awoke, she tried to wake Z.P., but she was deceased. Law enforcement
arrived at approximately 2:00 p.m. An autopsy had to be conducted on Z.P. in order to
determine the cause of death.
A social worker from the Department visited Mother’s home on November 12,
2020. Mother reluctantly allowed the social worker into her home. There was no
furniture in the living room. Mother stated that she lived alone in the home with Minor
and Siblings. Mother was evasive when questioned about Z.P.’s death and did not
express any emotion regarding her death. Mother reported that she and Z.P. routinely
slept together on blankets in the living room; she did not have a crib. Mother was not
sure how many people were in her home on the night of Z.P.’s death. She was having a
birthday party for Minor and only relatives were in attendance. She admitted drinking
“one beer” that night. She denied using drugs. Mother denied that there were any illegal
substances in her home when law enforcement arrived.
An interview warrant had to be obtained for the social worker to speak with Minor
and Siblings as Mother did not make the children available to the Department. Minor and
Siblings appeared in dirty clothes and messed-up hair. They immediately denied that
Mother ever hit them. They felt safe in the home. They all reported that the night of
Z.P.’s death, Mother had a party for Minor for his birthday. When they woke up the next
day, they attended online school and then discovered that Z.P. had not woken up. They
all went to the hospital with Mother and Z.P. was announced deceased. S.H. was the
3 father of Siblings; Minor’s father was reported by Mother to be D.J., who was serving a
life sentence in prison. Mother had no prior history with the Department and no known
criminal history.
A detention warrant was obtained and Minor was detained. Minor was placed
with maternal aunt, Ms. S., on November 13, 2020.
The Department filed a section 300 petition against Mother for Minor on
November 17, 2020 (Petition). The father was stated to be D.J. It was alleged in the
Petition under section 300, subdivision (b), failure to protect, that Mother was under the
influence while caring for Minor, which impacted her ability to care for him, and she was
unable to provide a safe living environment for Minor based on dangerous substances
being found that were easily accessible to him which impacted Mother’s ability to care
for him. It also was alleged pursuant to section 300, subdivision (f), that Z.P. died while
in Mother’s care and the cause of death was unknown; and pursuant to section 300,
subdivision (g), that D.J.’s whereabouts were unknown and he failed to provide support
to Minor. Mother denied any Indian ancestry.
A detention hearing was held with Mother present on November 18, 2020. The
juvenile court found a prima facie case that Minor came within section 300 and that
detention should be outside the home. S.H. was present and requested custody as a
nonoffending parent.
B. JURISDICTION/DISPOSITION REPORT AND HEARING
The jurisdiction/disposition report was filed on December 4, 2020. The
Department recommended that Minor remain out of the home and that reunification
4 services not be granted to Mother for Minor pursuant to section 361.5, subdivision (b)(4),
death of another child. Siblings had been placed with S.H. and it was recommended that
the dependency be dismissed as to them. Z.P.’s cause of death was still unknown.
Mother was interviewed on December 2, 2020, regarding the party on the night of
Z.P.’s death. She claimed to have had only one glass of wine and it did not impact her
ability to care for Minor, Siblings, and Z.P. The white powder in the kitchen was chalk.
There were beer cans in the apartment because she collected cans and did not have a trash
bag. She denied that she smoked marijuana; she never saw marijuana in her house. D.J.
was in prison for attempted murder until June 2043. L.J. reported that she had observed
Mother consume beer, but not every day.
The Department stated that Mother had not accepted responsibility for her actions,
which led to the removal of Minor and Siblings from her care. Mother had attended only
one visit with Minor. The Department had been unable to get Mother to schedule any
other visits. Mother had one negative drug test. Mother reported that D.J. had not been
present at Minor’s birth and never provided for Minor. The Department recommended
that D.J. be named the alleged father.
An autopsy was performed on Z.P. The coroner could not determine the cause or
manner of death. There were no signs of trauma nor any other obvious signs of death.
The police report from the night of Z.P.’s death was attached to the
jurisdiction/disposition report. The reporting officer noted that there were several empty
beer cans in the apartment along with baggies of marijuana. There was some type of
crushed up pill found in the living room. When Mother was interviewed, the officer
5 noted a strong odor of alcohol coming from Mother. Paternity testing for D.J. was
ordered.
Additional information was provided to the juvenile court on February 3, 2021,
and May 4, 2021. Mother was referred to a substance abuse treatment program. Further,
photographs of Mother’s apartment on the night of Z.P.’s death were submitted, which
included photographs of a white substance, marijuana baggies on the floor, pills on a
windowsill, and beer cans. There was just a mattress and blanket on the living room
floor. The home was very unkempt and dirty. Paternity testing revealed that D.J. was not
the biological father of Minor and it was recommended he be removed from the case.
The autopsy report was submitted to the juvenile court. Toxicology reports showed that
no substances were in Z.P.’s system that would have caused her death. The cause of
death was “unexplained sudden death.”
The jurisdiction/disposition hearing was to be held on May 5, 2021. Mother was
present. D.J. was excluded as a possible father of Minor; Mother named B.T. as the
possible father of Minor. The matter was continued in order for B.T. to be noticed of the
hearing. The Department was now recommending that Mother be granted reunification
services.
An addendum report was submitted on June 21, 2021. The Department
recommended that the allegations in the Petition be found true and that Mother be granted
reunification services. Siblings were placed with S.H. and the dependency should
dismissed as to them. Minor had been moved to the foster home of Ms. D. Mother had
been engaged in a drug treatment program and tested negative on a drug test.
6 It had been reported that Mother was unable to handle Minor during visits. He had
been observed climbing on furniture, throwing himself on the floor, punching and
screaming at Mother when she tried to redirect him. Visits had been described as
“chaotic and out of control.” Minor had been diagnosed with trauma/stress related
disorder. He was frequently irritable and threw tantrums. He was aggressive toward
other children. B.T. could not be located. Mother was making some progress in her drug
treatment program but had not completed all of her requirements. The treatment program
was extended to August 19, 2021. Mother completed her parenting class but it was
recommended that she continue in individual therapy.
The jurisdiction/disposition hearing was held on August 10, 2021. D.J. was
declared a nonparty and B.T. was named the alleged father. The juvenile court adopted
all the findings and orders in the jurisdiction/disposition report. The juvenile court found
that ICWA did not apply. Reunification services were granted for Mother. Siblings were
placed with S.H. and the dependency as to them was dismissed. The section 300,
subdivisions (g), and (f), allegations in the Petition were dismissed. All of the section
300, subdivision (b), allegations were found true for Minor and Siblings against Mother.
C. REVIEW REPORTS AND HEARINGS
The Department filed a review report on February 8, 2022. It was recommended
that reunification services be continued. Minor had been moved to the foster home of
Mr. and Mrs. W. He had been in the placement for five months and was adjusting well.
He was much calmer since he had been in their care. Mother reported feeling depressed
and had a hard time processing the death of Z.P. Mother hoped to marry S.D., a man
7 with whom she had been living with for several months. S.D. had an extensive criminal
record and became angry when questioned about his criminal history by a social worker.
The Department was concerned about the relationship and whether it presented a safety
risk to Minor. Minor had been diagnosed with autism and was receiving services,
including therapy. Minor was doing well in his services.
Mother had completed her parenting class. Mother completed her drug treatment
program on October 15, 2021. She appeared to be maintaining a drug-free lifestyle. She
had several negative drug tests; a positive test for Ethanol and a no-show test. Mother
was doing better at visitation, redirecting Minor as needed. Mother presented as loving,
engaged, and appropriately attentive. The Department recommended unsupervised visits
for Minor with Mother.
The review hearing was held on February 10, 2022. The juvenile court continued
reunification services for Mother. Mother was also granted unsupervised visits as long as
she did not bring S.D. to the visits.
In its review report filed on May 18, 2022, the Department requested an additional
90 days in which to further assess Mother’s living arrangements with the goal of
returning Minor to her care. Mother had completed all of her services and the
Department believed she had benefitted from the services. She had consistently attended
visitation with Minor. Mother was still residing with S.D. in a two-bedroom apartment.
S.D. was being evaluated and was cooperating with the Department. Minor had a healthy
bond with his caregivers. A psychological evaluation of Mother had been completed.
8 Mother was diagnosed with borderline intellectual functioning, which did not prevent her
from caring for Minor, but she would need support from the Department.
Mother had unsupervised visits with Minor. She was consistent in her visitation
and was able to control Minor. Mother had negative drug tests during the reporting
period. Mother wanted Minor returned to her care. At a hearing held on May 19, 2022,
the juvenile court ordered that once the evaluation of S.D. was complete, the Department
could return Minor to Mother’s care. The review hearing was continued.
At another hearing on August 17, 2022, the juvenile court ordered that Minor
could return to Mother’s home for a 29-day visit. Mother’s boyfriend, S.D., had to move
out of the apartment and needed to have three clean drug tests before moving back in.
Minor was placed with Mother.
According to an additional report filed on October 1, 2022, after Minor was placed
with Mother, Mother informed the Department she was being evicted from her apartment.
Mother did not know where she was going to live. As such, Minor was placed back with
Mr. and Mrs. W. on August 26, 2022. Also, Mother had tested positive for fentanyl on
August 30, 2022, and was a no-show for a test on September 2, 2022. Mother called one
of the social workers to report she was staying in a hotel with S.D. S.D. could be heard
in the background yelling obscenities. S.D. had failed to submit to drug testing. The
Department recommended that Mother’s reunification services be terminated and that the
matter be set for a section 366.26 hearing.
The contested review hearing was conducted on October 25, 2022. Mother
testified. She had completed all of the court-ordered services. She learned from her
9 substance abuse program not to be around alcohol. She did not know how she tested
positive for fentanyl. She had never taken the substance in her life. She was willing to
take responsibility for the positive test. She also denied she missed a drug test. She was
willing to complete another substance abuse program if the juvenile court would continue
reunification services. Mother had left S.D. and was looking for housing. Mother’s
counsel requested six months of additional reunification services. The Department was
requesting termination of reunification services; there was no substantial probability of
Minor returning to Mother’s care.
The juvenile court found that Mother had not made substantial progress in her
court-ordered case plan. Mother had received over two years of services. Mother’s
reunification services were terminated and the matter was set for a section 366.26
hearing. Mother’s visits with Minor would be supervised.
D. SECTION 366.26 REPORT, SECTION 388 PETITION, AND HEARING
The section 366.26 report was filed on February 14, 2023. Minor remained in the
care of Mr. and Mrs. W. They were willing to adopt Minor. Both caregivers had bonded
with Minor. There was much affection between Mr. and Mrs. W. and Minor. They could
give Minor the structure and protection that he needed. They were willing to continue
contact with Mother and Siblings as long as it was positive contact. Mother had been
granted weekly monitored visits on November 2, 2022, but had been inconsistent in
visitation as the times conflicted with her work schedule. Mother was advised she could
have video calls but had been sporadic in her visits. Mother brought snacks to visits. She
spent one visit allowing Minor to look at her cellular telephone for the majority of the
10 time. Visits ended well with no issues. Termination of parental rights would not be
detrimental to Minor.
Mother filed a section 388 petition on March 7, 2023. Mother was enrolled in a
substance abuse program and continued to have negative tests. She had stabilized her
housing. Mother was requesting that Minor be returned to her care with a family
maintenance plan, or reinstate reunification services. Mother submitted a declaration
with the section 388 petition. Since the termination of reunification services, Mother had
committed herself to meet her case plan goals. She maintained her sobriety and
surrounded herself with stable family members. Based on her progress, it would be in
Minor’s best interests to return him to her care or grant further reunification services.
On April 17, 2023, the Department responded to the section 388 petition. Mother
was interviewed by the Department on April 3, 2023. She was living with an aunt in a
one-bedroom apartment in Highland. She was looking for housing. She also was
unemployed. Mother was continuing to attend outpatient alcohol treatment. Mother had
reported not knowing how she could have ingested fentanyl but then admitted asking a
friend for muscle relaxers due to injuring her foot. The Department questioned Mother’s
decisions and whether this could put Minor in jeopardy. The section 388 petition should
be denied.
On April 17, 2023, the Department reported additional information that Mr. and
Mrs. W. had changed their mind about adopting Minor as they felt they were too old to
care for Minor. Minor would have to be moved to a new adoptive home. Later that day,
Mr. and Mrs. W. contacted the Department and advised they had made a mistake. They
11 wanted to adopt Minor because they loved him and wanted to provide him with a stable
home. Mother had stated that she was only available for visits with Minor on Mondays
despite the Department offering her bus passes to visit Minor. Mother was only willing
to visit when her aunt could give her a ride. Mother also provided documentation that
she had attended 50 sessions of substance abuse programs. She had only five absences
and it was reported she was doing excellent in the program. She continued to test
negative.
The contested section 366.26 hearing and determination of whether an evidentiary
hearing on the section 388 petition would be granted was conducted on May 17, 2023.
The juvenile court denied the section 388 petition without a hearing, as will be discussed
in more detail post.
The juvenile court then conducted the section 366.26 hearing. Mother’s counsel
argued for the lesser plan of legal guardianship. Mother had been consistent in her
visitation. She had attempted to reschedule any missed visits based on her work
schedule. Mother’s counsel also noted that Mr. and Mrs. W. had been debating whether
to adopt Minor. The legal guardianship would benefit Mother and the caregivers.
The Department argued that parental rights should be terminated. Minor was
highly adoptable. He referred to the caretakers as “mommy and daddy.” Their love for
Minor outweighed any concerns the caregivers had about adoption. Granting legal
guardianship would not provide the permanency and stability to which four-year-old
Minor was entitled.
12 The juvenile court found that Minor was adoptable. It further found that the
“Caden C.[2] factors do not apply to this child. Termination of parental rights would not
be detrimental to him. There’s no exception pursuant to .21(c) so the Court orders
termination of parental rights.” Mother’s parental rights were terminated, and Minor was
freed for adoption.
DISCUSSION
A. SECTION 388 PETITION—DENIAL WITHOUT HEARING
Mother contends the juvenile court should have held a hearing on her section 388
petition. Mother insists that she presented prima facie evidence of changed
circumstances and that it was in Minor’s best interests to conduct the full hearing as she
had continued her substance abuse treatment and tested negative after reunification
services were terminated.
1. RULING ON SECTION 388 PETITION
Mother’s counsel argued that a full evidentiary hearing on the section 388 petition
was necessary; the Department objected to the hearing. Mother’s counsel argued that a
hearing should be conducted in order for her to testify about her progress. Further, she
could call any counselors who had helped her. Mother had shown more than “changing”
circumstances. Mother had attended over 50 sessions of substance abuse programs.
Mother would graduate from the substance abuse program on June 1, 2023. Mother had
2 In re Caden C. (2021) 11 Cal.5th 614 (Caden. C.).
13 tested negative since the termination of her reunification services. She had ended her
relationship with S.D. and was in a stable environment.
The Department argued that Mother had not shown changed circumstances.
Mother remained in the substance abuse program. She had not shown a substantial
period of sobriety. Moreover, there was no showing that it was in Minor’s best interests
to conduct the section 388 hearing. Minor was in a stable home where he would be
adopted. Minor’s counsel joined the Department. Mother had received two years of
services and still had not completed her substance abuse program.
The juvenile court confirmed that the fentanyl test was in August 2022. The
juvenile court “applauded” Mother for her efforts. However, “it’s still in flux, it’s still
changing and there hasn’t been a substantial space of time for this Court to grant her 388.
That will be denied.”
2. ANALYSIS
“Under section 388, a parent may petition to modify a prior order ‘upon grounds
of change of circumstance or new evidence.’ [Citations.] The juvenile court shall order a
hearing where ‘it appears that the best interests of the child . . . may be promoted’ by the
new order.” (In re K.L. (2016) 248 Cal.App.4th 52, 61 (K.L.) “ ‘There are two parts to
the prima facie showing: The [petitioner] must demonstrate (1) [either] a genuine change
of circumstances or new evidence, and that (2) revoking the previous order would be in
the best interests of the [child].’ ” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
“ ‘A prima facie case is made if the allegations demonstrate that these two
elements are supported by probable cause. [Citations.] It is not made, however, if the
14 allegations would fail to sustain a favorable decision even if they were found to be true at
a hearing. [Citations.] While the petition must be liberally construed in favor of its
sufficiency [citations], the allegations must nonetheless describe specifically how the
petition will advance the child’s best interests.’ [Citation.] In determining whether the
petition makes the required showing, the court may consider the entire factual and
procedural history of the case.” (K.L., supra, 248 Cal.App.4th at pp. 61-62; see In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“The conditional language of section 388 makes clear that the hearing is only to be
held if it appears that the best interests of the child may be promoted by the proposed
change of order, which necessarily contemplates that a court need not order a hearing if
this element is absent from the showing made by the petition.” (In re Zachary G. (1999)
77 Cal.App.4th 799, 807, fn. omitted.) “After the termination of reunification services,
the parents’ interest in the care, custody and companionship of the child are no longer
paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency
and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster
care is in the best interests of the child. [Citation.] 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.)
“We review a juvenile court’s decision to deny a section 388 petition without an
evidentiary hearing for abuse of discretion.” (K.L., supra, 248 Cal.App.4th at p. 62.) “It
15 is rare that the denial of a section 388 motion merits reversal as an abuse of discretion.”
(In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother insists she had shown changed circumstances by attending the substance
abuse program beginning on November 17, 2022—after reunification services were
terminated—and was consistently attending and testing negative. As of the filing of the
section 388 petition on March 7, 2023, Mother was still in the process of receiving
substance abuse treatment. Her graduation date was June 1, 2023.
Prior to the termination of reunification services, Mother had completed a
substance abuse program and was on track to have Minor placed back in her care. The
juvenile court granted unsupervised visits and the plan was to place Minor back with
Mother with Family Maintenance services. She was given a 29-day visit, which had to
be terminated early because she was evicted from her apartment. Despite being given the
chance to end the dependency, Mother relapsed, testing positive for fentanyl, and then
failing to show for a drug test. Mother first claimed she had no idea how the fentanyl
was in her system, and then acknowledged taking something given to her by a friend. At
this point, the dependency proceedings had been ongoing for over two years and Mother
had been sober for almost one year. Mother was given an opportunity to regain custody
of Minor but was unable to maintain her sobriety.
Mother had Minor removed from her care not only because the juvenile court
found that Mother’s substance abuse impacted her ability to care for Minor, but also
because substances were found in the apartment that were accessible to Minor.
Marijuana baggies and pills were found out in the open in her apartment. Mother’s
16 relapse by using fentanyl was particularly concerning as she initially denied any
knowledge of how it could appear in her system. Later, Mother admitted she asked a
friend for a muscle relaxer and it could have contained fentanyl. The juvenile court could
reasonably be concerned that Mother may expose Minor to controlled substances and that
she would be unable to maintain her sobriety in order to care for Minor.
Mother insists that she had shown prima facie evidence that it was in Minor’s best
interests to be returned to her care or for the extension of reunification services. She
insists she had overcome her substance abuse problem. However, Mother had completed
a substance abuse program in October 2021. Almost one year later, in August 2022, prior
to the termination of reunification services, Mother relapsed, with a much more potent
drug than alcohol, by testing positive for fentanyl. Further, Mother initially did not
accept responsibility for the positive test. This was similar to Mother initially denying to
the Department that there was marijuana and pills in the apartment when law
enforcement arrived at her apartment after Z.P.’s death. However, photographs provided
by law enforcement clearly showed the illegal substances out in the open in the apartment
and easily accessible to Minor. Mother had not completed the second substance abuse
program, and despite making progress by attending sessions, and testing negative, the
juvenile court did not abuse its discretion by considering this as evidence of only
changing circumstances.
Mother also insists she had a strong bond with Minor. She acknowledges that
Minor was bonded to the adoptive parents but insists she had a strong bond with Minor.
The Department reported that at the initial visits between Mother and Minor, Mother had
17 a very difficult time controlling Minor. As the visits continued, and after Minor had been
placed with Mr. and Mrs. W. for four months, Mother became better at controlling
Minor. She was loving and supportive of Minor. However, there was nothing that
supports that Minor was bonded to Mother. Some visits with Mother were unsupervised
so no report of their interactions was provided. Moreover, during one visit, Mother
entertained Minor on her cellular telephone and the Department was unable to assess any
bond between them. There were reports that visits ended well and there were no issues.
However, there were no reports of any change in behavior by Minor at the end of visits,
or that he had any particular bond with Mother, with whom he had been out of her
custody for over two years. He was bonded with Mr. and Mrs. W., and considered them
“mommy” and “daddy.” There was a strong bond between Mr. and Mrs. W., and Minor,
but no evidence of any true bond between Mother and Minor. Mother failed to show it
was in Minor’s best interests to order a hearing.
The juvenile court was presented with evidence of Mother’s ongoing participation
in a substance abuse program. She had not completed the program and Minor had been
out of her care for over two years; he spent half of his life in the care of other persons.
Mother failed to make a prima facie showing of changed circumstances or new evidence
that it was in Minor’s best interests to be returned to Mother’s care. The juvenile court
did not abuse its discretion by concluding that Mother had only shown changing
circumstances and that it was not in Minor’s best interests to restart reunification services
or return Minor to Mother’s care.
18 B. BENEFICIAL PARENT EXCEPTION TO SECTION 366.26
Mother contends that she met the beneficial parental benefit exception to
termination of her parental rights by showing that she maintained regular visitation with
Minor and that Minor would benefit from continuing the relationship with her. It was
detrimental to Minor to sever the parental relationship and the order at the section 366.26
hearing freeing Minor for adoption by Mr. and Mrs. W. should be reversed.
“ ‘At a permanency plan hearing, the court may order one of three alternatives:
adoption, guardianship or long-term foster care. [Citation.] If the dependent child is
adoptable, there is a strong preference for adoption over the alternative permanency
plans.’ [Citation.] ‘Once the court determines the child is likely to be adopted, the
burden shifts to the parent to show that termination of parental rights would be
detrimental to the child under one of the exceptions listed in section 366.26, subdivision
(c)(1).’ ” (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225.) In order to prove that the
parental bond exception applies, a parent must show (1) consistent visitation; (2) a
beneficial relationship; and (3) detriment to the children in losing that relationship.
(Caden C., supra, 11 Cal.5th at p. 635.)
“A parent’s continued struggles with the issues leading to dependency are not a
categorical bar to applying the exception.” (Caden C., supra, 11 Cal.5th at p. 637.)
However, “Issues such as those that led to dependency often prove relevant to the
application of the exception. . . . A parent’s struggles may mean that interaction between
parent and child at least sometimes has a ‘ “negative” effect’ on the child.” (Ibid.)
19 “[C]ourts should not look to whether the parent can provide a home for the child;
the question is just whether losing the relationship with the parent would harm the child
to an extent not outweighed, on balance, by the security of a new, adoptive home.”
(Caden C., supra, 11 Cal.5th at p. 634.) “A child would benefit from continuing a strong,
positive, and affirming relationship, and it would be destabilizing to lose that
relationship. Sometimes, though, a relationship involves tangled benefits and burdens.
In those cases, the court faces the complex task of disentangling the consequences of
removing those burdens along with the benefits of the relationship.” (Ibid.)
“[C]onsideration of the beneficial relationship exception is a ‘fraught determination’ that
requires the juvenile court to ‘sift through often complicated facts to weigh competing
benefits and dangers for the child[,] . . . consider practical realities over which it has
limited control and envision a child’s future under contingent conditions.” (In re J.D.
(2021) 70 Cal.App.5th 833, 869.)
“A substantial evidence standard of review applies to the first two elements. The
determination that the parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is
essentially a factual determination. It’s likewise essentially a factual determination
whether the relationship is such that the child would benefit from continuing it.” (Caden
C., supra, 11 Cal.5th at pp. 639-640.) “[T]he ultimate decision—whether termination of
parental rights would be detrimental to the child due to the child’s relationship with his
parent—is discretionary and properly reviewed for abuse of discretion.” (Caden C.,
supra, 11 Cal.5th at p. 640.) “A court abuses its discretion only when ‘ “ ‘the trial court
20 has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ ” (Id. at p. 641.)
Initially, the juvenile court stated on the record that the Caden C. factors did not
apply in this case, but did not recite its findings as to the factors. When the juvenile court
finds the parental benefit exception does not apply, there is no requirement that the
juvenile court state its findings on the record. (See In re A.L. (2022) 73 Cal.App.5th
1131, 1156 [“[W]e are aware of no requirement . . . that the juvenile court, in finding the
parental-benefit exception inapplicable, must recite specific findings relative to its
conclusions regarding any or all of the three elements of the exception”].) While the trial
court did not state on the record the specific findings regarding visitation and detriment,
the juvenile court was aware of the Caden C. factors. We must presume that the juvenile
court properly considered all three factors.
Mother relies on In re D.P. (2022) 76 Cal.App.5th 153, 169, to support her claim
that remand is necessary in order for the juvenile court to conduct a new section 366.26
hearing setting forth its reasons for denying the parental-benefit exception. In D.P., the
appellate court remanded the case to the juvenile court in order for it to conduct a new
section 366.26 hearing because the juvenile court did not provide its specific analysis on
the record and it was not clear whether it considered improper factors which did not
comport with Caden C., supra, 11 Cal.5th 614. (D.P., at pp. 166-167, 169.) Unlike the
instant case, Caden C., had not yet been decided when the juvenile court ruled on the
parental-benefit exception in D.P. The case was reversed and remanded to allow the
juvenile court to reconsider the parental-benefit exception in accordance with Caden C.
21 This case was decided after Caden C. and the juvenile court specifically stated that the
factors did not apply. There is no indication in the record that the juvenile court relied on
improper factors in denying the parental-benefit exception and we presume it properly
followed Caden C.
The record supports the denial of the exception. It was Mother’s burden to show
that the exception applied. (In re B.D., supra, 66 Cal.App.5th at pp. 1224-1225.)
The juvenile court properly concluded that Mother had not been consistent in
visitation. The record supports that Mother was sporadic in her visits with Minor after
the termination of her reunification services. The Department noted that she had missed
visits and was advised she could have video visits but appeared to not take advantage of
the Department’s offer. Mother advised the Department that she could only visit with
Minor on Monday mornings when her aunt was available to drive her. The Department
offered a bus pass to visit with Minor, but she refused. Her visits remained sporadic prior
to the section 366.26 hearing. Mother did not meet her burden of showing that she
maintained consistent visitation with Minor.
As for the second prong, the record does not support that Mother and Minor had a
beneficial relationship. Minor had been out of Mother’s care for over two years. When
the dependency first started, Mother had a hard time controlling Minor. During visits,
Minor was out of control, and she and Siblings had to spend their visitation time trying to
control Minor. Mother eventually was able to control Minor as he became calmer after
moving in with Mr. and Mrs. W. Mother was allowed unsupervised visits at which there
22 was no one to observe the interactions between Mother and Minor but visits appeared to
be appropriate, but unremarkable.
Mother was granted a long-term visit with Minor, but had to return Minor to the
care of Mr. and Mrs. W when she was evicted and had no place to live. It was after this
that Mother tested positive for fentanyl and visits were supervised. The reports from the
supervised visits did not provide further evidence of a beneficial relationship between
Mother and Minor. Although the visits went well, Mother entertained Minor on her
cellular telephone so it was not clear how they interacted together. There was no change
in Minor’s behavior when visits were terminated. Mother did not show that there was a
positive, emotional attachment between her and Minor to meet the second prong of
Caden C.
Finally, there was no evidence of a strong bond between Minor and Mother, which
would establish a detriment to Minor if the relationship was terminated. (See Caden C.,
supra, 11 Cal.5th at p. 634 [“In many cases, ‘the strength and quality of the natural
parent/child relationship’ will substantially determine how detrimental it would be to lose
that relationship, which must be weighed against the benefits of a new adoptive home”].)
Minor’s bond with Mr. and Mrs. W. was strong and they helped to provide the stability
that appeared to help his behavior. Minor called Mr. W. “dad” or “uncle” and was happy
living in the W.’s home. As stated, there was no evidence of a strong bond between
Mother and Minor. Mother was unable to establish that the detriment of severing her
parental relationship with Minor outweighed the benefit of adoption.
23 The juvenile court properly took into account the factors in Caden C. in
determining the beneficial parental relationship exception did not apply. While we
recognize that Mother had worked hard to overcome her substance abuse problems, she
did not meet her burden of showing that termination of her parental rights to Minor
would be detrimental to Minor and outweighed the benefit of the placement in the
adoptive home. (Caden C., supra, 11 Cal.5th at p. 633.) The juvenile court did not
exceed “ ‘ “ ‘the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ ” (Id. at p. 641.) We uphold the order at the section 366.26
hearing terminating Mother’s parental rights.
DISPOSITION
The juvenile court’s order is confirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.