Filed 1/15/25 In re Z.G. CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Z.G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083710
Plaintiff and Respondent, (Super.Ct.Nos. J286808 & J289966) v. OPINION A.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff
and Respondent.
1 At a Welfare and Institutions Code section 366.261 hearing, the juvenile court
terminated the parental rights of defendant and appellant A.B. (mother)2 as to Z.G. (born
May 2020) and A.G. (born July 2021) (collectively minors). On appeal, mother contends
the court erred in removing minors from mother’s custody and that there was no statutory
basis for terminating her parental rights as to A.G. because mother had never received
reunification services with respect to her. Mother further argues the court erred in
declining to apply the beneficial relationship exception to terminating parental rights.
We affirm.3
I. FACTUAL AND PROCEDURAL BACKGROUND4
On September 28, 2020, personnel from plaintiff and respondent, San Bernardino
County Children and Family Services (the department), received an immediate response
referral alleging severe and general neglect. The reporting party indicated that mother
had taken then four-month-old Z.G. to the emergency room as she was not making eye
contact, her eyes were rolling back, and her body was stiff. Z.G. tested positive for
methamphetamine. The reporting party indicated mother appeared to be under the
influence of drugs.
1 All further statutory references are to the Welfare and Intuitions Code.
2 Father is not a party to the appeal.
3 Mother filed a petition for writ of habeas corpus (In re A.G., case No. E084563), which we ordered to be considered with the appeal. We shall resolve the petition by separate order.
4 By order dated May 17, 2024, we incorporated the record in case No. E081423.
2 The responding social worker interviewed mother, who reported she had left Z.G.
with the maternal grandmother; 30 minutes later, the maternal grandmother called, and
stated that Z.G. was acting differently. Mother then took her to the hospital.
Mother and the maternal grandmother both denied using methamphetamine.
Mother admitted using marijuana. The maternal grandmother reportedly had a history of
drug use, of which mother was aware. Mother believed the maternal grandmother was
using drugs.
A family friend stated she believed the maternal grandmother and father used
drugs. It was reported that father used marijuana while holding Z.G.5 The social worker
took Z.G. into protective custody. Z.G. remained at the hospital.
On September 30, 2020, the department filed a juvenile dependency petition
alleging parents had substance abuse problems (b-1, b-3, & b-7); that mother left Z.G.
with the maternal grandmother, where she ingested methamphetamine (b-2); that mother
and father engaged in acts of domestic violence in the presence of Z.G. (b-4 & b-5); that
father knew or should have known of mother’s substance abuse (b-6); and that father’s
whereabouts were unknown (g-8). On October 1, 2020, the court detained Z.G.
In the October 19, 2020, jurisdiction and disposition report, the social worker
wrote that the b-4, b-5, and g-8 allegations were not supported by the evidence.
Therefore, the social worker requested the court find those allegations not true. The
5 The social worker indicated the parents “may have” engaged in domestic violence; the information apparently derived from mother’s “having a red scar on the right side of her chin and several small bruises on both forearms.”
3 social worker recommended the court find the remaining allegations true, remove Z.G.
from parents’ custody, and provide parents reunification services. The social worker
further requested the court grant authority to return Z.G. to parents under family
maintenance services within three months as deemed appropriate.
The social worker interviewed mother on October 6, 2020. Mother denied having
a substance abuse problem. However, she admitted using marijuana twice weekly and
drinking once a week. Mother tested negative for all substances on September 29, 2020.
On October 6, 2020, she tested positive for marijuana.
Mother had left Z.G. with the maternal grandmother, maternal aunt, and maternal
uncle, who lived in a different room in the same hotel as her. The maternal grandmother
and maternal aunt were both on probation and required to submit to random drug testing;
however, as far as mother knew, they were not using illicit substances. Mother believed
one of the family members must have used methamphetamine, failed to wash their hands,
and Z.G. ingested it due to a family member’s handling of her bottles.
The social worker referred parents to parenting classes, individual counseling, and
Al-Anon meetings. Parents agreed to random and on-demand drug testing, on the
condition that they not have to complete substance abuse treatment programs upon
negative testing.
The social worker scheduled supervised visitation a minimum of once weekly for
two hours. She requested authority to allow unsupervised visits when deemed
4 appropriate. Parents filed waivers of rights agreeing to submit on the petition and the
social worker’s reports.
At the hearing on October 22, 2020, the court dismissed the b-4, b-5, and g-8
allegations. The department also asked the court to dismiss the b-1 allegation and amend
the b-7 allegation. The court struck the b-1 allegation and amended the b-7 allegation.
The court found the remaining allegations true, removed Z.G., and granted parents
reunification services.
In the status review report filed April 12, 2021, the social worker recommended
Z.G. be returned to parents’ home under family maintenance services. The social worker
noted Z.G. had been placed in the home of her paternal great-grandmother.
Parents completed anger management/parenting classes on January 11, 2021.
They both completed individual counseling. Parents attended eight Al-Anon group
meetings. Parents missed two drug tests in December 2020, which the department
excused. Mother had tested negative seven times. Father had tested negative on six
occasions.
The social worker observed, “The parents share tasks and respectfully request
assistance from one another when engaged in the activities they do with [Z.G.]. The
paternal great-grandmother has reported how lovingly the mother bathed her daughter
and got her ready for bedtime during one of her evening visits. They have also
participated in the therapeutic services . . . to ensure that they are meeting and assisting
with [Z.G.’s] developmental needs.”
5 Parents had not missed any visits. Unsupervised visitation began on February 18,
2021: “Initial[ly] the visits were all day for three . . . days[;] now they have every day,
all-day visits with weekend visits being overnight and an additional overnight visit during
the week.” Z.G. appeared “bonded to both of her parents as well as to her extended
paternal relatives with whom she is placed.”
On April 22, 2021, the court approved the case plan and ordered Z.G. returned to
parents’ home but retained jurisdiction over her. Parents were to maintain contact with
the social worker and inform her within 24 hours of any change in Z.G.’s residence. The
court found parents had made substantial progress toward alleviating or mitigating the
causes necessitating placement. The court authorized the department to request dismissal
of the case if appropriate.
In July 2021, mother gave birth to A.G. On July 20, 2021, family members
reported concerns that father was using illicit substances again and knew how to falsify
test results. They reported father had a history of suicidal and self-harm behaviors.
Mother reported an incident of domestic violence.
Mother had moved out of the family home. Parents had separated. Father had
missed five out of nine drug tests. Father failed to show for a children and family team
meeting and a subsequently scheduled meeting with the social worker. Mother had one
missed drug test. She subsequently tested negative for all substances.
On July 27, 2021, the department filed a supplemental petition as to Z.G. alleging
that father engaged in acts of domestic violence against mother (b-1 & s-2) and had failed
6 to drug test on five occasions (s-3). On the same date, the department also filed a
dependency petition as to A.G. alleging that father engaged in domestic violence against
mother (b-1), failed to drug test five times (b-2), and that Z.G. had been adjudged a
dependent of the juvenile court (j-3). The social worker recommended minors remain in
mother’s home with family maintenance services but that reunification services be
offered to father.
At the hearing on July 28, 2021, the court detained minors from father on both
petitions. Minors were to be maintained in mother’s home.
In the August 12, 2021, jurisdiction and disposition reports, the social worker
recommended the court find the allegations in the petitions true, continue minors in
mother’s home with family maintenance services, and provide reunification services for
father. Mother reported she had kicked father out of the home for using
methamphetamine. Mother said “father’s suicide attempts include stabbing himself with
glass, placing things around his neck, and driving reckless[ly].”
Mother had agreed to continue to participate in services. The social worker issued
her referrals for counseling and domestic violence services. Mother said she last used
marijuana in August 2020, and last consumed alcohol on July 16, 2021. Mother said she
had been admitted to the hospital due to kidney and liver issues related to alcohol use
when she was two to four weeks pregnant with Z.G. “As part of mother’s current open
[family maintenance] case with the other sibling she was court ordered to participate in
7 and referred to the following: case management, counseling, parent education, substance
abuse services, and transportation services.”
At the hearing on August 18, 2021, mother submitted on the recommendation of
family maintenance services. The court found the allegations in the petitions true.
As to disposition, the department’s and minors’ counsel requested that mother’s
plan include a requirement that she test for alcohol, and that if she tested positive she be
required to participate in an outpatient treatment program. Mother had “no objection to
those requests.” The court removed minors from father’s legal custody, continued minors
in mother’s home with family maintenance services, and granted father reunification
services. On September 1, 2022, the court approved the modified case plan requiring
mother to participate in a domestic violence program, general counseling, and substance
abuse testing.
In the status review report filed February 8, 2022, the social worker recommended
the matter be continued for 30 days with a recommendation to dismiss the cases as to
mother and terminate father’s reunification services. The social worker had limited
contact with father over the reporting period; he had not been participating in services,
including visitation.
Mother had been attending individual counseling, domestic violence classes, and
had tested negative on five occasions. However, mother had failed to show twice for
testing. Mother had an active bench warrant issued on December 16, 2021, for missing a
8 court date. The department requested the continuance to enable mother to resolve the
warrant prior to dismissal of the dependency matters as to her.
On February 17, 2022, the social worker filed an additional information for the
court reflecting mother had completed her individual therapy and domestic violence
classes. Mother reported that she was unable to go to court to clear her outstanding
warrant due to illness. The department requested a 45-day continuance to allow mother
to clear the warrant prior to dismissal of the dependency matters. At the hearing on
February 18, 2022, the court continued the matters.
In an additional information for the court filed April 7, 2022, the social worker
reported that mother had been in and out of the hospital; she had been referred to a
specialist. Mother missed her hearing scheduled on March 14, 2022, to clear her warrant.
Mother requested another hearing, which was scheduled for April 14, 2022. Mother
continued to test negatively for illicit substances. The department recommended they
continue to provide family maintenance services to mother until she cleared her warrant.
At the hearing on April 7, 2022, mother’s counsel submitted on the department’s
recommendation. The court terminated father’s reunification services. The court
continued minors in the custody of mother under family maintenance services.
In the October 7, 2022, additional information for the court, the social worker
reported that mother was living in the home of the paternal aunt. Mother was sleeping in
the living room with A.G. in a crib and Z.G. on an air mattress. The social worker
9 informed mother “she should not be co-sleeping with the minor.” Mother responded that
the living conditions were temporary, and she was actively looking for a new home.
The social worker noted that records reflected that mother had failed to test on five
occasions. Mother contended she had tested on those dates and would provide the social
worker with documentation. Mother reported “that she took care of her warrant by
completing driving school . . . .” The social worker requested a continuance to allow
mother for find suitable housing and to verify the missing drug tests.
At the hearing on October 7, 2022, mother’s counsel requested a five-week
continuance for mother to obtain housing. The court granted the continuance.
The social worker recommended in the status review report filed November 7,
2022, that minors remain in mother’s custody under family maintenance services.
Mother had moved in with the maternal aunt. Z.G. had been diagnosed with a heart
murmur; the social worker was unaware if mother had followed up for treatment. Since
February 22, 2022, mother had 12 no shows and nine negative drug tests. Mother could
not find drug test receipts for the months of August through October due to moving. The
social worker also noted she did not have verification that mother had attended the
requisite eight Al-Anon meetings.
At the hearing on November 8, 2022, at which mother was not present, minor’s
counsel objected to the department’s recommendation. Minor’s counsel noted mother
had failed to show for a number drug tests, had not provided proof of attendance at AA or
NA meetings, and it did not appear mother had followed up with treatment for Z.G.’s
10 heart murmur. Mother’s counsel requested a week to contact mother and obtain the
required information. The court continued the matters for 30 days to provide mother time
to drug test and obtain receipts.
In an additional information for the court filed on December 8, 2022, the social
worker reported that mother stated she was advised that she did not necessarily need to
follow up with respect to Z.G.’s diagnosed heart murmur. The social worker advised her
to make an appointment with a pediatrician; mother said she would do so.
The testing center had erroneously failed to place mother on the testing list; the
error had since been corrected; however, mother still needed to test. Mother reported that
she had completed all the required Al-Anon meetings and had been cleared by the
previous social worker. The current social worker could find no evidence in the file
supporting mother’s contention. The social worker noted that mother still needed to
complete four more sessions of individual counseling. The department requested “a 60
day extension, so the Department could provide [the] court through ample [sic] results
with drug testing, individual counseling completed, heart murmur results[,] and Al-anon
meetings.”
At the hearing on December 9, 2022, the department informed the court “that
Mother did attend the doctor’s appointment for the heart murmur yesterday and was
referred to a cardiologist. I don’t know the date of the appointment with the cardiologist,
but we’ll be following up on that issue for the next court date.”
11 Minors’ counsel requested the continuance be limited to 30 days. The department
responded, “My concern is that we had an issue with the drug tests and now that’s sorted
out. I want to get minors’ counsel the drug test result for the next court date and some
attendance sheets. Honestly, I don’t know how quickly one gets in to see a cardiologist.
I think availability of physicians can vastly differ. I’m concerned that we may not have
that in 30 days. Would the Court and minors’ counsel be open to perhaps 45 days, with
the hope that we can at least get some results for some drug tests?” The court continued
the matters to January 23, 2023.
In an additional information filed January 19, 2023, the social worker reported she
“was made aware of [an] error in regard to mother[‘s] . . . drug test results. It is noted
that mother has tested negative (28) twenty-eight times. The Department was unaware of
the errors due to the misinformation retrieved prior to the December 9, 2022, hearing.”
The department also appears to have conceded that mother was not required to complete
any additional 12-step meetings. Mother had an appointment with a cardiologist for Z.G.
on February 23, 2023. The social worker recommended the dependencies be dismissed.
At the hearing on January 23, 2023, minors’ counsel requested a continuance
because mother had moved, and someone needed to check the home. The court
continued the matters.
On February 7, 2023, the social worker filed an additional information for the
court, in which she reported that mother had completed her case plan including
“individual counseling, domestic violence, attended Al-anon[,] and has tested clean for
12 the past two years.” “The case has remained open due to mother having a warrant,
mother has cleared up her prior warrant, mother has completed her case plan. Mother has
expressed her frustration that the case is still open when she has completed the case plan.
The Department does not see that keeping the case open is benefitting her or the
children.” “Mother has benefitted from the services that she had completed in 2022.”
Mother had missed a recent drug test; however, she subsequently tested negative. “The
Department is requesting that the case remain open for three weeks, so the on demand
test results could be provided to the intake worker and the referral could be closed.” The
court continued the matters.
On February 6, 2023, the social worker went to the home of the paternal aunt, who
informed the social worker she had asked mother to leave the residence due to mother’s
drinking. The paternal aunt said she did not see mother drinking, but she could “‘identify
the signs of drinking.’” She saw a bottle in the home but could not identify the type of
alcohol it contained. The paternal aunt stated mother would pinch minors and tell them
to shut up.
The social worker reported that mother had missed eight drug tests since
December 2022, and had tested negative once. The social worker wrote that mother had
a history of missing drug tests. “As of the writing of this report the mother has completed
the services in her court ordered case plan but has been re-referred for attending 12 Step
meetings and testing.” Mother was not making the minors available for the social worker
to check.
13 On March 13, 2023, the department filed supplemental petitions alleging mother
was not cooperating with the court ordered case plan; she was also not drug testing or
advising the department about her and minors’ whereabouts. On March 14, 2023, the
court ordered minors detained from mother’s custody on the supplemental petitions. On
March 16, 2023, minors were taken into protective custody.
In the April 3, 2023, jurisdiction and disposition report, the social worker
recommended the court find the allegations in the petitions true, remove minors, and
grant mother reunification services. The social worker noted, “Mother has had the
children in her care since August 18, 2021.” “During this review period mother has been
uncooperative with the Department. [The social worker] reviewed the case plan with
mother [on] October 27, 2022, November 21, 2022, and December 22, 2022. Mother had
stated that she had completed the case plan but was unwilling to attend 12 step meetings,
retain a sponsor, agreed to test and proceeded to test once since November 21, 2022.”
According to the social worker, mother did not have stable housing, was abusing alcohol,
and was evasive about her location. The social worker had requested mother complete
three on-demand tests, all which mother missed.
At the hearing on April 4, 2023, the department requested “a brief continuance as
the recommendation is legally inappropriate. Mother is out of time for further services.”
The court continued the matters.
In an additional information for the court filed April 11, 2023, the social worker
recommended the court terminate mother’s services and set the section 366.26 hearing.
14 At the hearing on April 12, 2012, at which mother was not present, the department
requested a continuance because “[m]other was sick in the hospital with jaundice.”
Mother’s counsel was unaware of the circumstances. The court continued the matters to
May 12, 2023.
On May 8, 2023, the social worker filed an additional information for the court in
which she reported that they held a children and family team meeting at the hospital with
mother on May 2, 2023. Mother agreed to complete outpatient and substance abuse
testing. Nonetheless, “the Department recognizes that legally mother’s services are to be
terminated.” The social worker reported that “mother and children have a strong bond.”
At the hearing on May 12, 2023, at which mother was not present, mother’s
counsel requested the court strike the s-1 allegation, or, in the alternative, strike the
language indicating mother had not advised the department about her and minors’
whereabouts. Counsel requested services be continued.
The court found the s-1 allegation true as amended to strike the language
regarding the whereabouts of mother and minors. Minors’ counsel believed “these
children are adoptable and I do not want them to linger in foster care any longer than they
have had to.” The court continued the disposition hearing. In the May 16, 2023,
additional information for the court, the social worker recommended the court set the
section 366.26 hearing to establish a permanent plan of adoption.
At the hearing on May 16, 2023, at which mother was not present, mother’s
counsel reiterated his request that the court continue services for mother. Minors’
15 counsel submitted on the recommendation for the setting of a section 366.26 hearing on
adoption. The court asked, “Isn’t the mother out of time statutorily for services to be
provided?” The department responded, “Correct, Your Honor.” The court removed
minors from mother, terminated her services, and scheduled the section 366.26 hearing.
On May 30, 2023, mother filed a notice of intent to file a petition for extraordinary
writ as to both minors. On July 5, 2023, this court dismissed the case for petitioner’s
failure to timely file a motion for relief from default for having failed to timely file the
writ petition.
On June 25, 2023, the social worker filed an additional information for the court,
in which she reported that the paternal great-grandmother said that mother’s liver was
failing. The paternal great-grandmother wished to adopt minors.
In the section 366.26 report filed December 4, 2023, the social worker requested
additional “time . . . to transfer the case to the adoption’s unit and for the adoptions unit
to complete [a] home assessment.” The department had placed minors with the current
caregivers on June 28, 2023; they wished to adopt minors. “The placement is stable[,]
and the children are doing well in the home.” Mother had supervised visits with minors
twice weekly for two hours. The visits were reported to be “great.”
At the hearing on December 5, 2023, the department requested a 120-day
continuance. Minors’ counsel requested a shorter continuance: “The children have been
with the caregiver, I think, now between around seven months and they’re doing
extremely well. My experience has been that the caregiver has been very cooperative[,]
16 and I’m satisfied that the placement is not only appropriate, but very beneficial to the
children.” The court set the contested section 366.26 hearing for February 6, 2024.
The department requested that mother’s visits be reduced. Mother’s counsel
observed, “The report indicates that Mother’s been having visits twice a week, for two
hours, supervised, and that visits have been going well. So I would ask that . . . if the
Court is inclined to grant the request to reduce visits, I would ask visits remain twice a
month, Your Honor.” Minors’ counsel noted, “I’m fine with authority to increase, but at
this juncture, we want the children to settle in. I don’t want them—given their ages . . . to
have . . . conflict or confusion issues. There’s also the fact that the caregivers have to
facilitate [visits].” The court ordered mother’s visitation reduced to “two times per
month, for two hours, county agency has authority increase as to frequency, duration, and
delegate supervision.”
On February 5, 2024, the department requested an additional “continuance to
allow adoptions to complete a thorough assessment of [the] family.” At the hearing on
February 6, 2024, the department requested an additional 75 days. The court set the
matters for April 22, 2024.
On April 10, 2024, the social worker filed a first addendum section 366.26 report,
recommending the court terminate parents’ parental rights and implement a permanent
plan of adoption. The social worker reported that minors were generally adoptable and
were likely to be adopted. They were “very bonded” to the prospective adoptive parents,
who were relatives, as well as other children, an adult uncle, and a grandfather, all of
17 whom also lived in the home. The prospective adoptive parents were interactive with
minors and kept “up with their energy.”
At the section 366.26 hearing on April 22, 2024, mother testified that she had been
visiting with minors. During her latest visit in early April, minors came into the house
and “said, ‘Mommy,’ and then we continued to proceed, started coloring.” They gave her
a hug. “Then we did go outside. They like to be outdoors and ride their bikes.” At the
end of the visit, Z.G. “was kind of sad. I told her she would be seeing me again soon.
And then [minors] walked down and gave me a hug. I put them in the car[,] and they
said they love me and that’s it.”
At her March visit with minors, they went outside and played; they had snacks.
Minors addressed her as “‘Mommy’” and “Mom.’” Z.G. “usually is sitting on top of me,
[A.G.] is sitting on the side. [A.G.’s] more affectionate toward my boyfriend. So
[A.G.’s] very close with him. So me and [A.G.] have a bond, too.”
Mother’s bond with Z.G. was stronger. “I mean, when I first came over, she’s
like—starts to cry a little bit, when she sees me and stuff. When she leaves, she kind of
throws a fit or tantrum, but lately we are working through it, talk to her, tell her she’s
going to come back and see me.” “[W]e have a bounce house. We put that up, play with
balloons, color, blow bubbles.” When the visit ended, Z.G. was upset; “she started to
cry.”
Mother’s counsel argued that mother and minors “are bonded.” “They look
forward to seeing her at the visits and the children refer to her as Mom.” “I do think there
18 is evidence of a bond such that severance would not be in the children’s best interest—
severance of that relationship, that is. So we would ask the Court find that it would not
be in the children’s best interest to follow the recommendation to terminate parental
rights. Instead, Mother requests the Court order a lesser plan of legal guardianship.”
Minor’s counsel requested the court follow the department’s recommendation.
The court noted that minors “have been out of [mother’s] care for more than a year
at this point.” “They have been in their current placement for over six months. They’re
bonded to their prospective adoptive parents. The prospective adoptive parents are
willing and committed to the needs of the children on a permanent basis, and they desire
to keep them with family, keep them safe and loved.” “The social worker reports that the
children appear to be emotionally bonded to the prospective adoptive parents.” “The
children have been placed with the prospective adoptive parents since [sic] March 16,
2023.”6
“In the [section 366].26 report of December 5th, 2023, the social worker reported
the children are doing well in the home.” Z.G. “presents as a happy three year old, and
there’s no indication that she is in need of therapy, based on comments by the caregiver.”
“In the addendum report submitted for today, it also reflects a bond between the children
and the caregivers.” The court found minors “both generally specifically adoptable.”
The juvenile court expressly mentioned In re Caden C. (2021) 11 Cal.5th 614
(Caden C.) as the applicable law in determining whether to apply the beneficial
6 The department took minors into protective custody on March 16, 2023. The department placed minors with the prospective adoptive parents on June 28, 2023.
19 relationship exception to termination of parental rights. “In this case, the children have
been removed from the mother for over a year and have been in . . . their placement since
March 2023.[7] The Court is finding that the mother has met her burden of proof as to
regular visitation and contact between the children.” The court also found that mother
and minors were bonded.
“As to the third element, whether termination of parental rights would be
detrimental, the Court is finding that the mother has not met the burden of proof. While
[Z.G.] may cry and get upset at some point in the visits, the mother described the last visit
at the beginning of April. At the end of the visit, the children were kind of sad. There
was no testimony as to the visit in April that there was any distress.” “It does not appear
[Z.G.] is distressed at the end of every visit. There’s been no evidence presented that
she’s not able to be comforted or has ongoing issues after the visit. Mother’s own
testimony was that [A.G.] has a stronger bond with Mother’s boyfriend.” “[T]he Court is
finding that the mother has not met the burden of proof as to third element. Court is
finding it would not be detrimental to the children to terminate parental rights.” Thus, the
court terminated parents’ parental rights as to both minors.
7 See footnote six, ante.
20 II. DISCUSSION
A. The Court was not Required to Find that Reunification Services had Been
Bypassed.
Mother contends that pursuant to In re DeLonnie S. (1992) 9 Cal.App.4th 1109
(DeLonnie S.), prior to terminating her parental rights as to A.G., the juvenile court was
required to find that services as to A.G. had been either bypassed or terminated. We
disagree.
The court in DeLonnie S. noted that “the juvenile court may terminate a parent’s
rights when it makes: (1) a finding at the permanency planning hearing that the
dependent child is likely to be adopted; and (2) any one of five additional findings listed
in subdivision (c)(1) of section 366.26, each of which is made at a hearing prior to the
permanency planning hearing. (Id. at p. 1113, fn. omitted, italics added.) “In other
words, the fact that a dependent child is likely to be adopted will not by itself support an
order terminating parental rights. Rather, in addition the Legislature has identified any
one of five specific findings as sufficient bases for a termination order when the
dependent child is likely to be adopted.” (Ibid., italics added [Failure of juvenile court to
make one of the requisite additional findings required reversal of order terminating
parental rights].)
Those five required findings were as follows: (1) that reunification services would
be bypassed; (2) that the whereabouts of a parent had been unknown for six months;
(3) that the parent had failed to visit or contact the child for six months; (4) that the parent
21 had been convicted of a felony indicating parental unfitness; (5) or that the child could
not or should not be returned to his or her parent. (Former § 366.26, subd. (c)(1); In re
DeLonnie S., supra, 9 Cal.App.4th at p. 1113, fn. 4.)
However, the Legislature subsequently amended section 366.26 to require the
court to terminate parental rights if the court found the minor adoptable. Although one of
the previously requisite additional findings would support a finding of adoptability, none
of those findings were any longer required. (Amended by Stats. 1998, ch. 572 (Assem.
Bill No. 2310), § 1, operative Jan. 1, 1999.) Thus, because the court was not required to
find that reunification services as to A.G. had been bypassed, the court did not err in
terminating mother’s parental rights because it had determined that A.G. was adoptable.
B. Jurisdictional Issues
Mother requests that we “consider the arguments which should have been made at
the jurisdictional and dispositional hearings on the supplemental petition, and in the writ
petition which should have been filed thereafter, . . .” Mother contends counsel should
have filed a petition for extraordinary writ raising the following issues: (1) the court
erred in removing the children because substantial evidence did not support a finding of
detriment; and (2) the court unlawfully set the section 366.26 hearing before providing
mother with statutorily required reunification services as to A.G.8 We hold that we lack
jurisdiction to address these issues.
8 Mother’s petition for writ of habeas corpus challenges these orders based on mother’s counsel’s purported rendition of prejudicial ineffective assistance of counsel.
22 1. Scope of Appeal
“‘[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an
absolute prerequisite to the exercise of appellate jurisdiction.’ [Citations] ‘“[O]nce the
deadline [to appeal] expires, the appellate court has no power to entertain the appeal.”’”
(In re J.F. (2019) 39 Cal.App.5th 70, 74-75.) “‘“Our jurisdiction on appeal is limited in
scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We
have no jurisdiction over an order not mentioned in the notice of appeal.’ [Citation.]”
(Id. at p. 75.)
“Generally, we must liberally construe a notice of appeal in favor of its
sufficiency. [Citations.] A notice of appeal shall be ‘“liberally construed so as to protect
the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from,
and where the respondent could not possibly have been misled or prejudiced.”’
[Citations.]” (In re J.F., supra, 39 Cal.App.5th at pp. 75-76.)
“But there are limits to our ability to liberally construe a notice of appeal. ‘The
policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does
not apply if the notice is so specific it cannot be read as reaching a judgment or order not
mentioned at all.’ [Citations.]” (In re J.F., supra, 39 Cal.App.5th at p. 76.) “Therefore,
when a notice of appeal manifests a ‘“clear and unmistakable”’ intent to appeal only from
one order, we cannot liberally construe the notice to apply to a different, omitted order.
[Citations.]” (Ibid. [court lacked jurisdiction to consider parent’s arguments on appeal as
to order from which parent did not appeal].)
23 Here, mother’s notice of appeal specifies that it is from the juvenile court’s order
of April 22, 2024, terminating her parental rights as to minors. No mention of any other
order is made. Mother’s appeal does not mention the May 16, 2023, order in which the
juvenile court removed minors from mother, terminated her services, and set the section
366.26 hearing. Mother’s notice of appeal is so specific that we cannot read it as
reaching the May 16, 2023, orders. Thus, we have no jurisdiction to reach her claims
with respect to them.
2. Timeliness
“One of the most fundamental rules of appellate review is that the time for filing a
notice of appeal is jurisdictional. ‘[O]nce the deadline expires, the appellate court has no
power to entertain the appeal.’ [Citation.]” (In re A.O. (2015) 242 Cal.App.4th 145,
148.) “‘“[A]n unappealed disposition or postdisposition order is final and binding and
may not be attacked on an appeal from a later appealable order.” [Citation.]’
[Citations.]” (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Z.S. (2015) 235
Cal.App.4th 754, 769, overruled on narrow grounds in In re A.R. (2021) 11 Cal.5th 234,
243, 251; id. at p. 243 [Where mother requested counsel file a notice of appeal, and
mother’s counsel mistakenly filed the notice of appeal four days late, mother has not
“irrevocably lost her right to appeal the termination of her parental rights.”].) “This ‘. . .
rule’ holds ‘that an appellate court in a dependency proceeding may not inquire into the
merits of a prior final appealable order,’ even when the issues raised involve important
24 constitutional and statutory rights. [Citation.]” (In re Z.S., at pp. 769-770; see In re S.B.,
at p. 532.)
“‘Failure to file a petition for extraordinary writ review within the period specified
by rule . . . shall preclude subsequent review by appeal of the findings and orders made
pursuant to [section 366.26.]’ [Citation.]” (In re Hannah D. (2017) 9 Cal.App.5th 662,
678; accord, In re A.A. (2016) 243 Cal.App.4th 1220, 1239.) “Petitioner’s trial counsel,
or, in the absence of trial counsel, the party, is responsible for filing any notice of intent
and writ petition . . . .” (Cal. Rules of Court, rule 8.450(c).)
“[R]esort to claims of ineffective assistance as an avenue down which to parade
ordinary claims of reversible error is also not enough . . . alone, to argue that counsel
rendered ineffective assistance by not raising potentially reversible error on” a previously
appealable order. (In re Janee J. (1999) 74 Cal.App.4th 198, 209.) “[L]ate consideration
of ineffective assistance claims defeats a carefully balanced legislative scheme by
allowing a back-door review of matters which must be brought for appellate review . . .
by earlier appeals, that is, before the point is reached where reunification efforts have
ceased and the child’s need for permanence and stability become paramount to the
parent’s interest in the child’s care, custody and companionship [citation].” (Id. at
p. 208.) “[T]o fall outside the waiver rule, defects must go beyond mere errors that might
have been held reversible had they been properly and timely reviewed. To allow an
exception for mere ‘reversible error’ of that sort would abrogate the review scheme
[citations] and turn the question of waiver into a review on the merits.” (Id. at p. 209.)
25 Failure to raise ineffective assistance of counsel below forfeits the issue on appeal. (In re
Autumn K. (2013) 221 Cal.App.4th 674, 715-716.)
Here, mother raises issues on appeal that challenge the finality of the court’s
rulings on May 16, 2023. Such challenges are only reviewable by timely appeal or
petition for extraordinary writ, neither of which were timely pursued by mother. Thus,
we are without jurisdiction to address any challenge to those orders.
C. Beneficial Relationship Exception
Mother contends the court erred in declining to apply the beneficial relationship
exception to termination of parental rights. We disagree.
“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and
implement a permanent plan for the child.’ [Citations.] To guide the court in selecting
the most suitable permanent arrangement, the statute lists plans in order of preference and
provides a detailed procedure for choosing among them. [Citation.] According to that
procedure, the court must first determine by clear and convincing evidence whether the
child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a
previous determination that reunification services be terminated, then the court shall
terminate parental rights to allow for adoption. [Citation.] But if the parent shows that
termination would be detrimental to the child for at least one specifically enumerated
reason, the court should decline to terminate parental rights and select another permanent
plan. [Citation.] As we have previously explained, ‘[t]he statutory exceptions merely
26 permit the court, in exceptional circumstances [citation], to choose an option other than
the norm, which remains adoption.’” (Caden C., supra, 11 Cal.5th at pp. 630-631.)
“The exception at issue in this case is limited in scope. It applies where ‘[t]he
court finds a compelling reason for determining that termination would be detrimental to
the child due to one or more of the following circumstances: [¶] (i) The parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.’ [Citation.] From the statute, we readily discern three
elements the parent must prove to establish the exception: (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.) It is the parent who must prove all three elements by a
preponderance of the evidence; the parent must “show a ‘compelling reason for
determining that termination would be detrimental to the child . . . .’” (Id. at p. 635.)
Here, as the parties agree, the juvenile court found both that mother had
maintained consistent visitation and had a beneficial relationship with minors. Thus, we
address only the third prong, detriment.
“[I]n 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. [Citation.] By making this
decision, the trial court determines whether terminating parental rights serves the child’s
best interests.” (Caden C., supra, 11 Cal.5th at p. 632.) “Because terminating parental
27 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.” (Id. at p. 633.) “[T]he 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.” (Id. at p. 634.)
“[W]hether 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 has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.’”’ [Citation.] But ‘“‘[w]hen two
or more inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’”’” (Id. at p. 641.)
Here, mother did not meet her burden of showing a compelling reason that
termination of her parental rights would be detrimental to minors. In other words, mother
did not demonstrate that there were exceptional circumstances such that the court should
choose an option other than the statutory preference for adoption as the long-term plan
for minors.
As the court noted, the only evidence of detriment adduced by mother was that
Z.G. cried and became upset at the end of a single visit in March. Mother testified Z.G.
28 “was kind of sad” at the end of the visit in April. Thus, as the court observed, “It does
not appear [Z.G.] is distressed at the end of every visit. There’s been no evidence
presented that she’s not able to be comforted or has ongoing issues after the visit.”
Likewise, as the court further observed, there was no evidence that A.G. experienced any
distress at her separation from mother, either in between or at the end of visits.
On the other hand, at the time the court terminated mother’s parental rights,
minors had been out of her custody for over a year. They had been in the prospective
adoptive parents’ home for approximately 10 months. The department had previously
placed Z.G. with the prospective adoptive parents when the court initially detained her.
At that time, the department noted minor “appear[ed] bonded . . . to her extended paternal
relatives with whom she is placed.”
The prospective adoptive parents wished to adopt minors. The placement was
stable, and minors were doing well in the home. They were “very bonded” to the
prospective adoptive parents, as well as other children, an adult uncle, and a grandfather,
all who also lived in the home. The juvenile’s court’s determination that the beneficial
parental relationship exception did not apply was within the court’s discretion.
29 III. DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
I concur:
RAMIREZ P. J.
30 [In re Z.G., E083710]
MENETREZ, J., Dissenting.
Ana G. (Mother) received ineffective assistance of counsel at the hearing at which
the selection and implementation hearing was set, and she likewise received ineffective
assistance of counsel when her court-appointed trial counsel chose not to file a writ
petition challenging the setting of the selection and implementation hearing. We should
accordingly reverse the termination of parental rights, so I respectfully dissent.
The juvenile court removed Mother’s older child, Z.G., from Mother’s custody in
October 2020 at the disposition hearing on a petition under Welfare and Institutions Code
section 300 (unlabeled statutory citations refer to this code), and the court ordered the
San Bernardino County Department of Children and Family Services (CFS) to provide
reunification services to Mother. Mother promptly completed her case plan programs
and demonstrated substantive progress in addressing the issues that led to Z.G.’s removal.
At the six-month review hearing in April 2021, the court followed CFS’s
recommendation to return Z.G. to Mother’s custody and to order family maintenance
services.
In July 2021, Mother gave birth to A.G. That same month, CFS filed a
supplemental petition as to Z.G. and an original section 300 petition as to A.G. But the
petitions’ allegations concerned only the children’s father, and at the detention hearing
the juvenile court maintained both children in Mother’s custody. At the disposition
1 hearing on those petitions, the court continued both children in Mother’s custody and
ordered family maintenance services for Mother.
The children remained with Mother under court and CFS supervision until the
juvenile court detained them from her on supplemental petitions in March 2023. At the
disposition hearing on those supplemental petitions, the court removed both children
from Mother’s custody and followed CFS’s recommendation that Mother “receive no
family reunification” and that a hearing under section 366.26 be set. The purported basis
for declining to order reunification services for Mother was county counsel’s statement
that “Mother is out of time for further services.” Mother’s court-appointed trial counsel
did not seek writ review of the order denying Mother services and setting the section
366.26 hearing, because counsel believed that Mother “had already been receiving
services past the statutory time limit.”
The court’s ruling was correct as to Z.G. Mother was out of time for reunification
services for her older child—Z.G. was removed from her custody at the disposition
hearing in October 2020, and reunification services can be provided only for 18 months
(or 24 months in certain exceptional circumstances). (See generally §§ 361.5, subd. (a),
366.21, subd. (f), 366.22, subd. (b), 366.25, subd. (a)(1).) But the ruling was erroneous
as to A.G. Mother was not out of time for reunification services as to her younger child,
because that child had never been removed from her custody or even detained from her
until the supplemental petitions were filed in March 2023. Mother’s reunification clock
as to A.G. had never started to run.
2 On appeal, CFS argues that the court’s error and counsel’s dereliction in failing to
point out the error in the trial court or to raise it in a writ petition were harmless. CFS
reasons that, given that the court was required to terminate reunification services for
Mother as to Z.G., the court could have bypassed reunification services for Mother as to
A.G. under subdivision (b)(10) of section 361.5.
The argument lacks merit. Under subdivision (b)(10) of section 361.5, the court
need not order reunification services for a parent as to a child removed from the parent’s
custody if the court finds by clear and convincing evidence that “the court ordered
termination of reunification services for any siblings . . . of the child because the parent
. . . failed to reunify with the sibling” and the parent “has not subsequently made a
reasonable effort to treat the problems that led to removal of the sibling.” In determining
whether the parent subsequently made a reasonable effort, the court must consider the
parent’s “efforts made since the removal of the sibling.” (Cheryl P. v. Superior Court
(2006) 139 Cal.App.4th 87, 98.) Thus, in order to bypass Mother as to A.G. under that
provision, the court would have to find by clear and convincing evidence that even
though Mother completed her case plan in the first six months after Z.G.’s removal, and
even though her compliance and progress were so good that Z.G. was returned to her
custody at the six-month review hearing and remained in her custody under court and
CFS supervision for the next two years, Mother did not make reasonable efforts to treat
the problems that led to Z.G.’s removal.
3 On this record, it is arguably impossible to make that finding by that standard of
proof. To defeat bypass, a parent’s efforts need not be perfect and need not be
successful—they need only be reasonable. (In re Albert T. (2006) 144 Cal.App.4th 207,
221; Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Mother completed
her case plan, got Z.G. returned to her at the six-month review, and maintained Z.G. in
her custody under CFS supervision for two years. It is hard to imagine how a court could
find by clear and convincing evidence that Mother did not make reasonable efforts to
treat the problems that led to Z.G.’s removal.
But Mother does not need to show that it was impossible to bypass her as to A.G.
Rather, to prevail on her claim of ineffective assistance of counsel, all that Mother needs
to show is that it is reasonably probable that she would not have been bypassed were it
not for counsel’s deficient performance. (In re A.R. (2021) 11 Cal.5th 234, 252.)
That is not a close question. If counsel had provided Mother with competent
representation and thus had informed the court that Mother was not out of time for
reunification services as to A.G., it is at least reasonably probable that the court would
have rejected application of the bypass provision because the court could not find by
clear and convincing evidence that Mother had failed to make reasonable efforts. Again,
a contrary ruling arguably would not have been supported by substantial evidence.
Mother’s claim of ineffective assistance of counsel is therefore meritorious. By
failing to inform the juvenile court of its error in bypassing Mother as to A.G. and failing
to file a writ petition raising the issue, counsel failed to act in a manner to be expected of
4 reasonably competent dependency practitioners, and it is at least reasonably probable that
Mother would not have been bypassed in the absence of counsel’s dereliction. (In re
A.R., supra, 11 Cal.5th at pp. 251-252.) We should accordingly reach the issue of the
erroneous bypass despite subdivision (l)(2) of section 366.26, which would otherwise bar
consideration of challenges to rulings made in setting a selection and implementation
hearing if no timely writ petition was filed.
Because it is at least reasonably probable that Mother would not have been
bypassed as to A.G. but for the juvenile court’s error and counsel’s failure to spot it, we
should reverse the termination of parental rights as to A.G. And because A.G. and Z.G.
have lived together for the entirety of their young lives, it is reasonably probable that the
sibling bond exception to termination of parental rights would apply (§ 366.26, subd.
(c)(1)(B)(v)), so we should reverse the termination of parental rights as to Z.G. as well.
We cannot know whether efforts to reunify Mother with A.G. would be successful. But
Mother “has earned the right to try.” (In re Albert T., supra, 144 Cal.App.4th at p. 221.)
I therefore respectfully dissent.
MENETREZ J.