In re N.T. CA2/6 ( 2023 )

Filed 2/27/23 In re N.T. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.T. et al., A Person Coming 2d Juv. No. B321456
Under the Juvenile Court Law. (Super. Ct. No. 19JD-00362)
(San Luis Obispo County)
SAN LUIS OBISPO DEPARTMENT
OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
A.C. (Mother) appeals an order of the juvenile court
declaring that her minor child N.T. is adoptable and terminating
her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)1
We decide that the court properly considered and applied the
All statutory references are to the Welfare and
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Institutions Code.
holding of In re Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.) to
conclude that the beneficial parental relationship exception to
adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 3, 2019, the San Luis Obispo Department of
Social Services (DSS) received a report that Mother was
struggling with drug abuse and homelessness. Her nine-year-old
son N.T. had witnessed drug abuse and assaults upon her. DSS
requested Mother to participate in random drug testing; she
agreed but failed to attend several testing appointments. She
also refused to establish a safety plan regarding N.T.
DSS placed N.T. in protective custody after his school
reported that a man not listed as an emergency contact appeared
at school under the influence of drugs and sought to take N.T.
School employees and law enforcement attempted to reach
Mother but her telephone was disconnected and she was not at
her recent address.
At the time DSS placed N.T. in protective custody, he had
red bite marks on his arms and suffered from dental problems.
He reported that he was living in a motel room with Mother, her
daughter, and two men.
Detention, Jurisdiction, and Disposition
On October 21, 2019, DSS filed a dependency petition
pursuant to section 300, subdivision (b)(1), alleging that N.T. was
at serious risk of harm due to Mother’s drug abuse and
homelessness. The petition also alleged that J.G. (alleged
Father) was homeless and his whereabouts unknown. The
following day, the juvenile court held a detention hearing and
ordered N.T. removed from Mother’s care. DSS placed N.T. in
the care of his current foster parents who intend to adopt him.
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On January 29, 2020, the juvenile court held a jurisdiction
and disposition hearing. Mother did not attend and her attorney
stated that she had been unable to contact her. Prior to the
hearing, DSS made several unsuccessful attempts to contact
Mother. Mother also had not attended the numerous DSS team
meetings concerning N.T.
The juvenile court sustained the allegations of the
dependency petition following the parties’ submission on DSS’s
recommendation. It also ordered Mother to participate in family
reunification services, including drug treatment, random drug
testing, mental health treatment, and parent education. Mother
also received weekly supervised visits with N.T.
Six- and 12-Month Reviews
By the time of the six-month review hearing, Mother had
not followed through with reunification services and did not
consistently contact DSS. DSS’s efforts to contact Mother were
unsuccessful. Mother remained homeless and unemployed, and
did not engage in drug and mental health treatment. Mother
consistently visited and telephoned N.T., however, and hoped to
reunify.
On July 23, 2020, the juvenile court held a six-month
review hearing. Mother did not attend and her attorney was
unable to contact her. The parties submitted on the DSS reports,
which recommended in part that Mother receive an additional six
months of reunification services. The court then continued
Mother’s services and set a 12-month review hearing.
By the time of the 12-month review hearing, Mother failed
to make consistent contact with DSS and had not participated in
reunification services. She also admitted that she continued to
use methamphetamine and marijuana. DSS’s efforts to contact
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Mother were unsuccessful. Despite Mother’s continued failure to
engage in services, she consistently visited N.T. and telephoned
him nightly. The DSS social worker observed, however, that
Mother’s relationship with N.T. resembled a friendship rather
than a parent-child relationship. Meanwhile, N.T. was thriving
in his foster home and referred to his foster parents as his mother
and father. N.T. informed the CASA volunteer that he would be
sad if he could not live with Mother and his foster parents.
On February 10, 2021, the parties appeared for a contested
12-month review hearing. DSS and N.T.’s counsel recommended
that Mother’s reunification services terminate and that N.T.
remain with his foster parents.
Mother testified at the review hearing that she recently
became involved in drug treatment and testing. She admitted
that she used illegal drugs until January 2021 but stopped using
drugs when she learned that DSS recommended termination of
her parental rights.
The juvenile court commended Mother for her recent
reformation but stated that N.T. had been a dependent child for
16 months and that Mother’s efforts were too little and too late.
The court then terminated reunification services and set a
permanent plan hearing. (§ 366.26.) Mother petitioned this
court for an extraordinary writ regarding the termination of her
reunification services. We denied the petition. (A.C. v. Superior
Court (June 17, 2021, B310402 [nonpub. opn.].)
Section 388 Petition and Section 366.26 Hearing
DSS filed its permanent plan report on May 25, 2021, and
recommended that N.T. be found adoptable and Mother’s
parental rights be terminated. N.T.’s CASA volunteer also filed a
report and stated that it was in N.T.’s best interest that he be
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adopted by his foster parents. Prior to the hearing, Mother filed
a modification petition requesting the continuation of
reunification services in light of her recent sobriety, stable
employment, and permanent housing.
At the permanent plan hearing, Mother testified that she
had gained custody of N.T.’s older half-sister and had been sober
since January 15, 2021. Mother asserted that the beneficial
parental relationship exception to adoption applied. The DSS
social worker testified that N.T. referred to his foster parents as
his parents and that he had lived with them for nearly two years.
She acknowledged, however, that N.T. stated that he wished to
live with his Mother and his foster parents.
At the conclusion of the hearing, the juvenile court found
that Mother had established changing, but not changed,
circumstances and it denied her modification petition. The court
also found that N.T. was adoptable and it terminated Mother’s
parental rights. The court found that the beneficial parental
relationship exception to adoption did not apply based in part
upon N.T.’s ability to maintain a substantial relationship with
Mother and his half-siblings.
Mother appealed and asserted that the juvenile court erred
by applying an incorrect legal standard pursuant to In re
Caden C., supra, 11 Cal.5th 614. DSS agreed and stipulated to a
reversal. We approved the stipulation and issued a remittitur on
January 4, 2022.
Post-Remittitur Proceedings
Second Section 388 Petition and Second Section 366.26 Hearing
DSS filed a status review report on January 26, 2022, for a
review hearing. DSS reported that N.T. had an infant half-sister
who would be placed in N.T.’s foster home once the infant was
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discharged from hospital neonatal care. DSS also reported that
N.T. was happy in his foster home. DSS observed that N.T.’s
relationship with Mother was more a friendship than a parent-
child relationship. Mother and N.T. visited regularly, however,
and spoke on the telephone twice a week.
DSS later filed an updated section 366.26 report stating
that N.T.’s half-sister was now living with him in his foster home.
DSS opined that adoption, not legal guardianship, would provide
N.T. with permanency and stability. N.T. then had lived with his
foster parents for approximately two and one-half years.
Mother filed a second modification petition requesting
family reunification services or placement of N.T. with her with
family maintenance services. She asserted that she had stable
employment and maintained her sobriety.
On June 29, 2022, the juvenile court held a permanent plan
hearing. The DSS social worker testified that adoption would
provide N.T. with stability and permanence. She pointed out
that N.T. had become bonded with his infant half-sister and
helped care for her. The social worker also testified that N.T.
believed that he had been adopted already by his foster parents.
Mother testified that she had been sober for nearly 18
months and participated in random drug testing. She stated that
she maintained her sobriety by working 60 hours a week and
attending counseling.
At the conclusion of the hearing, N.T.’s counsel stated that
she agreed with the DSS recommendations and added that N.T.
stated that he wanted to be adopted by his foster parents.
Counsel added that N.T. is a parentified child who is overly
protective of Mother.
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The juvenile court stated that it was mindful of Caden C.,
but that the relationship between Mother and N.T. was not the
substantial relationship discussed in that decision. The court
acknowledged that Mother had rehabilitated remarkably,
consistently visited N.T., and had a positive relationship with
him. Nevertheless, the court decided that the parental-benefit
exception to adoption did not apply. The court also denied
Mother’s modification petition, noting in part that N.T. had
become more identified with his foster family and infant half-
sister.
Mother appeals and contends that the juvenile court
abused its discretion by not applying the beneficial parental
relationship exception to the adoption of N.T. (§ 366.26, subd.
(c)(1)(B)(i).) Alleged Father did not appear in the proceedings
and is not a party to this appeal.
DISCUSSION
Mother asserts that N.T. would benefit from continuing his
relationship with her to such a degree that he would be harmed
by termination of parental rights. She describes N.T.’s notion of
adoption as one in which he believed that he could continue a
relationship with her.
Section 366.26, subdivision (c)(1)(B) requires the juvenile
court to terminate parental rights if it finds by clear and
convincing evidence that a child is likely to be adopted, unless the
court finds a compelling reason for determining that termination
would be detrimental to the child due to an enumerated statutory
exception. (In re Caden C., supra, 11 Cal.5th 614, 629.) The
beneficial parental relationship exception of section 366.26,
subdivision (c)(1)(B)(i) requires a showing by a preponderance of
the evidence that the parent has regularly visited the child, that
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the child would benefit from continuing the relationship, and that
terminating the relationship would be detrimental to the child.
“[T]he exception applies in situations where a child cannot be in a
parent’s custody but where severing the child’s relationship with
the parent, even when balanced against the benefits of a new
adoptive home, would be harmful for the child.” (Caden C., at
p. 630.)
Application of the beneficial parental relationship exception
rests upon a variety of factual determinations and is properly
reviewed for substantial evidence. (In re Caden C., supra, 11
Cal.5th 614, 630.) The “ultimate decision” that termination
would be harmful, however, is reviewed for an abuse of
discretion. (Ibid.) The parent bears the burden of establishing
three elements of the exception: 1) regular visitation and contact;
2) a relationship, the continuation of which would benefit the
child; and 3) termination of parental rights would be detrimental
to the child. (Id. at pp. 631, 636.) Ultimately, the juvenile 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.” (Id. at p. 632.) What the
court must 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.)
Mother did not meet her evidentiary burden to establish
that her relationship with N.T. was sufficiently compelling to
outweigh the legal preference for adoption. Although N.T. loves
Mother and has an emotional bond with her, that bond is not the
substantial positive emotional attachment within the meaning of
the exception and Caden C. Social workers observing Mother and
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N.T. during visits described their relationship as resembling one
of peers or friends rather than parent and child. N.T.’s prolonged
custody within the dependency system and his attachment to his
foster parents were due to Mother’s failure to engage in
reunification services for nearly 16 months. N.T. did not request
more visits with Mother or complain that visits were too few.
Social workers also recognized that N.T. was overly protective of
Mother, such as defending her against an abusive boyfriend.
The juvenile court did not abuse its discretion by
concluding that termination of Mother’s parental rights would
not be detrimental to N.T. By the time of the second permanent
plan hearing, N.T. had lived with his foster parents – whom he
called “Mom” and “Dad” – for nearly three years and looked to
them as parents. His infant half-sibling also lived with his foster
parents and they intended to adopt her. N.T. developed a close
relationship with his half-sister and he participated in caring for
her. Indeed, N.T. and his foster parents already believed that he
had been adopted by them. N.T. was aware of the distinction
between adoption and legal guardianship, having been explained
those terms by DSS during a meeting. N.T.’s best interests were
supported by a stable home and school and his making of
neighborhood friends. The “ ‘exceptional circumstances’ ” that
would allow the juvenile court to circumvent adoption were not
present here. (In re Caden C., supra, 11 Cal.5th 614, 631.) The
court did not abuse its discretion by denying application of the
exception.
The juvenile court also did not rely upon inappropriate
factors in declining to apply the beneficial parental relationship
exception. The court commended Mother on her progress with
drug treatment, mental health treatment, and full-time
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employment. The court also did not compare Mother’s parental
skills to those of the foster home nor did it discuss comparative
wealth or inheritance possibilities. (In re B.D. (2021) 66
Cal.App.5th 1218, 1226 [parent’s failure to complete reunification
services plan does not preclude application of beneficial parental
relationship exception]; In re D.M. (2021) 71 Cal.App.5th 261,
270-271 [juvenile court improperly focused on factors other than
emotional attachment between parent and child].)
The parental termination order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Katie Curtis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rita L. Neal, County Counsel, Ann Duggan, Deputy County
Counsel, for Plaintiff and Respondent.
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