In re K.S. CA4/1 ( 2014 )

Filed 10/7/14 In re K.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.S., a Person Coming Under the
Juvenile Court Law.
D065636
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1128)
Plaintiff and Respondent,
v.
K.A., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant K.A.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant B.S.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
K.A. (Mother) appeals an order denying her Welfare and Institutions Code1
section 388 modification petition. The Mother and B.S. (Father) also appeal that same
order that terminated their parental rights to their son, K.S. They contend the juvenile
court erred in finding the beneficial parent-child relationship exception did not apply to
either of them. (See § 366.26, subd. (c)(1)(B)(i).) We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
K.S. was the victim of horrific child abuse. Concerned that K.S. was moaning, not
eating well, had diarrhea and a tongue laceration, the Mother took K.S. to the hospital
when he was four months old. Two doctors evaluated K.S., and they determined that
K.S. had healing rib fractures, femur and tibia fractures, facial bruises, scarring on his
back, and a lacerated liver that caused internal bleeding, requiring a blood transfusion.
Had the Mother not brought K.S. to the hospital, he could have died from the blood loss.
When questioned by doctors and a police detective, both the Mother and the
Father claimed they did not know how K.S. was injured. In addition, they denied hurting
K.S. in any way and stated he was a happy baby with no major illnesses. The Father later
questioned if some of the injuries were due to a speaker that fell on K.S. in the car and
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2
admitted that he had scratched K.S. with his nails. The Mother suggested she could have
fractured K.S.'s leg during a diaper change
The Mother had been K.S.'s primary caregiver since his birth. She claimed she
was a " 'hospital alcoholic' " meaning she frequently took K.S. to the doctor. The Father,
maternal grandmother, a maternal uncle, and aunts had also cared for K.S. at times, with
the grandmother only doing so occasionally.
The San Diego County Health and Human Services Agency (Agency) filed a
section 300, subdivision (b), dependency petition on K.S.'s behalf. At the detention
hearing, the juvenile court ordered K.S. detained at Rady Children's Hospital and then
placed in foster care or with an approved relative.
A child abuse medical expert, Dr. Marilyn Kaufhold, examined K.S. Kaufhold
concluded none of K.S.'s injuries were the result of normal child care. Regarding the
liver laceration, she opined the usual mechanism for such an injury was a deep blow to
the abdomen in the region of the liver. Kaufhold noted that rib fractures usually resulted
from forceful, traumatic chest compression. She additionally opined that the tongue
laceration likely resulted from the forceful introduction of a sharp object into K.S.'s
mouth.
As of the detention hearing on May 22, 2013, both parents requested appointed
counsel, who appeared on their behalf. The juvenile court also appointed a guardian ad
litem for K.S. and found the Father was a presumed father under Family Code section
7611, subdivision (d). The juvenile court made a prima facie finding on the initial
section 300, subdivision (b) petition, signed off on a stipulated protective order, and
3
ordered K.S.'s detention out of the home following his hospital release, with supervised
visitation for the parents.
At the initial jurisdiction/disposition hearing on June 12, 2013, both parents set the
matter for trial as to the truth of the allegation. The Agency prepared a jurisdiction/
disposition report wherein it recommended that K.S. remain in out-of-home care and that
the parents receive six months of reunification services. At this time, K.S. was in a
confidential Angels Foster Family Home.2
Subsequently, the juvenile court appointed a court appointed special advocate
(CASA) for K.S.
The Agency prepared an addendum to its original jurisdiction/disposition report.
Among other things, the report indicated that Kaufhold again examined K.S. toward the
end of June 2013 and noted that when K.S.'s back scars were fresh, the skin would have
been red, broken, with obvious bleeding or oozing. Kaufhold thus opined that the Mother
could not have been unaware of this injury. However, the addendum contained the same
recommendation as the original report.
Three weeks later, the Agency filed an additional addendum report in which the
Agency changed its recommendation to propose that the parents not be offered
reunification services and a section 366.26 hearing be set to determine the appropriate
2 Angels Foster Family Network is "a [non-profit,] licensed foster family agency
with a unique focus on prevention, based on the stable placement of abused infants and
toddlers with nurturing families who promote healing and critical attachment, resulting in
healthy growth and development." ( [as of
October 3, 2014].)
4
plan for K.S. The Agency stressed that it recommended not offering reunification
services under section 361.5 subdivisions (b)(5) and (6). The Agency also made clear it
was very concerned that the parents had "no explanation as to how [K.S.] received [his]
injuries." The Agency explained: "The parents have also not been truthful with law
enforcement regarding the events that brought [K.S.] to the attention of the Agency.
Until the parents can be honest with themselves and the Agency as to what role either one
or both of them played in the abuse there is no way that they would be able to benefit
from services or make progress."
At the contested jurisdiction hearing on August 20, 2013, the juvenile court
sustained the petition and assumed jurisdiction over K.S. under section 300, subdivision
(e). At the subsequent contested disposition hearing, the juvenile court removed K.S.
from his parents' custody and ordered him placed with his paternal grandmother. The
juvenile court denied reunification services to the parents under section 361.5,
subdivision (b)(5), but ordered supervised visitation for both parents. The court also set a
hearing under section 366.26 and ordered the Agency to prepare an assessment report.
K.S. was placed in his paternal grandmother's custody. K.S.'s paternal
grandmother and her husband were committed to raising K.S. They were interested in
adoption, not legal guardianship of K.S. The grandmother was attentive to K.S.'s
emotional needs and she ensured K.S. attended all medical appointments. Beyond the
relative caregivers, there were 52 families in the county with approved adoptive home
studies interested in a child matching K.S.'s characteristics.
5
After K.S. was placed in a foster home, the parents managed to have weekly,
supervised visits with K.S. beginning while K.S was in foster care, and the visits went
well. They brought clothes and toys for K.S., and played and talked with him. However,
the foster parents reported it was hard to get K.S. to sleep after Thursday visits with the
family, and he would wake up frequently with nightmares and be hard to console.
After the court removed K.S. from the custody of his parents and placed him in the
custody of his paternal grandmother, the parents continued their visits with K.S, meeting
with him once a week for two hours.3 The Mother and Father were somewhat reserved
and engaged in play with K.S. for brief periods. Overall, the parents appeared physically
attentive to K.S. and displayed affection toward him, smiling and giving eye contact
while in close proximity. K.S. also was very engaging with his grandmother and
appeared to enjoy interaction with other adults as well. At the end of visits, K.S.
separated easily from his parents, and without problems, went to his grandmother or
reached for her. Despite the previous abuse, K.S. was a happy, cute, alert, playful,
engaging baby boy, who was in good health and meeting all developmental milestones.
He was a "very friendly baby who appears to enjoy interacting with anyone who gives
him attention."
On January 30, 2014, the Mother filed a section 388 petition. In her petition the
Mother requested to change the juvenile court order that denied her reunification services
3 The Mother and Father were given the option to have separate visits with K.S.,
and did visit K.S. separately at the request of the social worker. However, after a couple
separate visits, the parents resumed visiting K.S. together.
6
and placed K.S. in the paternal grandmother's care. The Mother asserted that since that
order, she had continued to engage in services to address the protective issues.
The Mother stated she had enrolled in individual therapy and had completed five
therapy sessions. Further, the Mother claimed she acknowledged the severity of K.S.'s
injuries, addressed the unhealthy relationship dynamic between herself and the Father,
and separated from him.
The Mother also provided information from the letter of atonement that she wrote
to K.S. as well as updates from therapists Carole Kries and Brenda Mack. Mack's update
noted the Mother's five therapy sessions and included the opinion the Mother had gained
insight as to the protective issues. According to Mack's report, the Mother acknowledged
the Father had been rough with K.S. and would throw him up in the air when he was two
months old. Further, the Mother acknowledged she did not assert herself when the Father
minimized his behaviors towards K.S. The Mother also had been concerned regarding
K.S.'s well-being when she went to work. She often enlisted a younger brother to be at
home with the Father to keep an eye on K.S. And when she worked, she utilized the
"free" childcare provided by the Father.
In the Mother's letter of atonement, she took "full responsibility" for K.S.'s injuries
in "not being as protective as [she] should have been . . . leaving [K.S.] around [the]
father when [she] knew he wasn't responsible enough." She wrote that in the future she
would ensure K.S.'s caregivers were reliable and responsible, and that she would try
better to pay attention to signs that something was wrong. However, the Mother did not
indicate in her letter how K.S. received his injuries.
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Kries's update indicated that the Mother was progressing toward achieving
program goals as expected. She expressed guilt and grief that she had been unaware of
who hurt K.S.
The Mother's section 388 petition asked for K.S.'s return to her with family
maintenance services or the extension of reunification services. The juvenile court
summarily denied the Mother's request for placement and family maintenance services,
but proceeded with the Mother's second request of reunification services finding she had
a minimal prima facie showing. The juvenile court also stated that any evidence it
received as to the section 388 petition would be considered as to the section 366.26
hearing unless there was an explicit reason a party did not want such to be the case. To
this end, the court admitted in evidence a CASA report dated March 14, 2014, the
Mother's section 388 petition with attachments, Kries's curriculum vitae (CV), Kries's
January 29, 2014 progress report, Mack's CV, Mack's treatment update letter dated March
10, 2014, the Mother's safety plan, and Agency reports dated December 12, 2013,
February 6, 2014, and March 14, 2014. In addition, the juvenile court heard the
testimony of three witnesses: Kries, Mack, and Jenkins.
Kries is a licensed therapist who facilitated a child abuse group in which the
Mother participated. The Mother attended group since January 29 and attended 27
sessions as of March 14, 2014. Kries believed that the Mother had made great progress
in group. For example, she showed insight as to the process of abused children and the
type of adults those children become. Kries treated the Mother as a "non-protective
parent" because it was not clear the Mother abused K.S., but apparent she did not do
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enough to prevent abuse. In this light, Kries opined that the Mother accepted
responsibility as a nonprotective parent. The Mother, however, did not acknowledge
harming K.S., but admitted she was unaware that K.S was being harmed. She also was
able to express awareness as to the impact of the injuries K.S. sustained.
In Kries's opinion, the Mother appeared to be benefitting from the services she was
receiving. Kries testified that she addressed future reabuse of child abuse in her group
sessions.
Also, as part of group, Kries required the Mother to write an atonement letter to
K.S. and prepare a safety plan. Kries found the Mother's effort with both tasks was
appropriate.
During cross-examination, it became clear that Kries's treatment and evaluation of
the Mother was more general and did not specifically take into account the Mother's
situation with K.S. Also, Kries appeared unsure to the extent the Mother was receiving
reunification services and did not often talk to K.S.'s social worker. In addition, she
could not clearly recall her communications with the Agency about the Mother. And
Kries admitted that she did not have a lot of experience with section 300, subdivision (e)
related cases.
Mack is a licensed family and marriage therapist, and was the Mother's personal
therapist. She first met with the Mother on September 27, 2013. Mack never received
any information on the case from the social worker, although she knew it was a section
300, subdivision (e) case and that the Mother had not been offered services. Without
court documents, Mack relied on the Mother's self-report to begin her therapy. At the
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time of the hearing, Mack had met with the Mother for 12 one-hour sessions. The type of
treatment goals that Mack set up for the Mother included: the Mother demonstrate she
could parent safely, put her child's needs ahead of her own, have empathy for the child,
and have knowledge of the child's development. Mack stated that the Mother had been
making progress with the goal of parenting safely, but she had not sufficiently addressed
the other goals yet. Mack also acknowledged that the Mother had poor boundaries, and
struggled to say no to others. Indeed, Mack indicated that the Mother stated "she had to
protect her boyfriend" against the allegations that led to K.S.'s removal. However, Mack
opined that the Mother would benefit from reunification services.
Jenkins was the social worker on K.S.'s case. Jenkins had reviewed all of the
Agency's reports pertaining to K.S., and had authored several of them. He also observed
the Mother and the Father during five visits with K.S. Jenkins reviewed the Mother's
section 388 petition and the attached documents. In addition, he talked with Kries, Mack,
the Mother, and the Father as well as examined the Agency's contact logs and delivered
services logs. Based on his involvement in the case, Jenkins opined that reunification
services were not likely to prevent reabuse of K.S. Jenkins stated that it did not appear
that the Mother took responsibility for what happened to K.S., noting that the Mother
"continues to state that she doesn't know what happened to him." Jenkins supported his
opinion by observing that K.S. was nonverbal, could not protect himself, and was
severely injured, "from his head to his toe." Jenkins also observed the Father did not take
responsibility for K.S.'s injuries and the Mother and Father choose to visit K.S. together.
10
Jenkins further opined that it would not be detrimental to K.S. if reunification services
were not offered to the Mother.
Jenkins also testified that the Mother's atonement letter was concerning because
the Mother appears to take responsibility in the beginning of the letter, but later diverts
responsibility to the Father. In addition, Jenkins found the Mother's safety plan
inadequate because it did not seem to relate to K.S.'s situation and appeared to be copied
from someone else's plan.
Finally, Jenkins opined that the Mother's and the Father's parental rights should be
terminated and adoption should be K.S.'s permanent plan.
The juvenile court did not find the Mother established by clear and convincing
evidence that: (1) reunification services would likely prevent reabuse; (2) failure to offer
reunification services would be detrimental to the child because the child was positively
and closely attached to the Mother; and (3) the circumstances changed and it was in the
best interest of the child to be returned to her. It therefore denied the Mother's section
388 petition.
In explaining its decision, the juvenile court discussed the evidence presented
during the hearing. The court explained that it discounted both Kries's and Mack's
testimony because neither person had knowledge of the facts and circumstances
surrounding the injuries to K.S. and his situation. It also expressed concern with Kries's
"fuzzy" recollection of the history of the case and her interaction with Jenkins. In
addition, the court was troubled by Mack's failure to "get to the heart of issues" during
her sessions with the Mother. The court also found that the Mother's safety plan did not
11
indicate the Mother had gained insight into the causes of K.S.'s injuries or that the plan
offered methods for avoiding future abuse. The court was similarly unimpressed with the
Mother's atonement letter, finding it had "shortcomings in terms of acknowledging
certain issues[.]"
The court emphasized the terrible abuse K.S. suffered, paraphrasing Jenkins:
" 'The child had injuries from head to toe.' " The court found it concerning that the
parents did not provide any sufficient explanation of the cause of K.S.'s injuries and their
"complete lack of awareness or any idea as to who could have done this to their child."
The court also was troubled that the parents claim to have not noticed the injuries.
In contrast to the witnesses testifying on behalf of the Mother, the court placed
great weight on Jenkins's testimony. The court found Jenkins's opinion persuasive that
failure to try reunification services would not be detrimental to K.S. The court also
stressed that it did not find any evidence of a "close and positive attachment" between
K.S. and the Mother that would indicate a failure to provide reunification services would
be detrimental to K.S.
In rendering a decision as to section 366.26, the juvenile court followed the
Agency's recommendations in the assessment report. It found by clear and convincing
evidence that it was likely K.S. would be adopted if it terminated parental rights and
found K.S. to be both generally and specifically adoptable. The juvenile court also found
by clear and convincing evidence that none of the exceptions under section 366.26,
subdivision (c)(1)(B) applied here.
12
As to the beneficial parent-child relationship, the court concluded the parents met
the first prong of the exception with them regularly visiting K.S. The court also
acknowledged how the parents were appropriate during supervised visitation, but also
noted the limited circumstances of the visits. It concluded that it did not find that
severing the parent-child relationships would deprive K.S. of a substantial, positive,
emotional attachment. The court contrasted the many benefits K.S. received from the
"stable, loving, consistent relationship" with the paternal grandmother as compared to
"trauma and the insecurities in the first four months of his life." The juvenile court
determined the parents had not established the beneficial relationship exception and
found clear and convincing evidence that adoption was in K.S.'s best interest. It
terminated parental rights and found the permanent plan of adoption appropriate.
Both parents filed timely notices of appeal.
DISCUSSION
I
SECTION 388 MOTION
The Mother contends the court abused its discretion when it denied her
modification petition. We disagree.
Under section 388, subdivision (a), a parent, interested person, or the dependent
child (generically, petitioner) may petition the court to change, modify, or set aside a
previous order on the grounds of changed circumstances or new evidence. The petitioner
requesting the modification has the burden of proof to show a change of circumstances or
13
new evidence, and that the proposed modification is in the child's best interests. (In re
Jasmon O. (1994) 8 Cal. 4th 398, 415.)
However, "section 388 merely authorizes the court to modify a prior order. It does
not purport to excuse the juvenile court from satisfying any other legal requirements that
might apply to the modification." (In re A.M. (2013) 217 Cal. App. 4th 1067, 1076
(A.M.).) Here, the court previously denied the Mother reunification services under
section 361.5, subdivision (b)(5).4 As such, the court could not modify its prior order
denying reunification services "unless it finds that, based on competent testimony, those
services are likely to prevent reabuse or continued neglect of the child or that failure to
try reunification will be detrimental to the child because the child is closely and
positively attached to that parent." (§ 361.5, subd. (c); see A.M., supra, at p. 1075.) And
findings under section 361.5, subdivision (c) are to be made under a clear and convincing
evidence standard, rather than a preponderance of the evidence standard required under
section 388. (A.M., supra, at p. 1077.)
We review the grant or denial of a petition for modification under section 388 for
abuse of discretion. (In re Shirley K. (2006) 140 Cal. App. 4th 65, 71; In re Casey D.
(1999) 70 Cal. App. 4th 38, 47.) " 'The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason.' " (In re Stephanie M. (1994) 7 Cal. 4th
4 Section 361.5, subdivision (b)(5) provides: "Reunification services need not be
provided to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: . . . (5) That the child was brought
within the jurisdiction of the court under subdivision (e) of Section 300 because of the
conduct of that parent or guardian."
14
295, 318-319.) We will not disturb the trial court's exercise of discretion unless the trial
court's decision was arbitrary, capricious, or patently absurd. (Ibid.) The complaining
party must affirmatively establish abuse of discretion; it is not presumed. (In re
Cliffton B. (2000) 81 Cal. App. 4th 415, 423.)
The Mother argues that she demonstrated a change of circumstances. Specifically,
she asserts that she presented evidence she: (1) separated from the Father; (2) engaged in
services to address her protective issues; (3) accepted full responsibility for being a non-
protective parent; and (4) acknowledged the severity of K.S.'s injuries. Additionally, the
Mother insists granting her section 388 petition was in K.S.'s best interest and she
established reunification services were likely to prevent reabuse. We are not persuaded.
Most of the Mother's arguments are contingent on the testimony of Kries and
Mack as well as the Mother's safety plan and her atonement letter. Logically, she
emphasizes that this evidence is ample to support her section 388 petition. However, the
Mother utterly ignores that the juvenile court placed little weight on her evidence. The
court went to great lengths to explain why it did not find Kries's testimony credible or
Mack's testimony persuasive. The court stressed that neither therapist had complete
knowledge of the circumstances surrounding K.S.'s injuries. Similarly, the court
elucidated why it did not believe the Mother's safety plan or atonement letter helped her
cause.
Essentially, the Mother's arguments here can be reduced to no more than asking
this court to reweigh the evidence. This is not our role. "It is the trial court's role to
assess the credibility of the various witnesses, to weigh the evidence to resolve the
15
conflicts in the evidence. We have no power to judge the effect or value of the evidence,
to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in
the evidence or the reasonable inferences which may be drawn from that evidence.
[Citations.]" (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
At the hearing, Jenkins testified he had reviewed significant background material,
talked to the parents and the Mother's therapists, and observed the parents visiting with
K.S. He stated that it did not appear that the Mother took responsibility for what
happened to K.S. He explained the shortcomings he perceived in the Mother's atonement
letter and safety plan. Jenkins opined that reunification services would not likely prevent
reabuse and it would not be detrimental to K.S. if reunification services were not offered
to the Mother. The juvenile court was entitled to find the social worker's opinion
credible, and to give great weight to his assessment. (In re Casey, supra, 70 Cal.App.4th
at p. 53.) The fact that the Mother presented contrary evidence is of no moment.
Simply put, on the record before us, we cannot say the juvenile court's denial of
the Mother's section 388 petition was arbitrary, capricious, or patently absurd. (See In re
Stephanie M., supra, 7 Cal.4th at p. 318.) This is especially true here where the Mother
had to prove by clear and convincing evidence that the reunification services would
prevent reabuse. (A.M., supra, 217 Cal.App.4th at p. 1077.)
II
BENEFICAL PARENT-CHILD EXCEPTION
The juvenile court may terminate parental rights if there is clear and convincing
evidence of adoptability. (§ 366.26, subd. (c)(1).) After the court determines a child is
16
likely to be adopted, the burden shifts to the parent to show the termination of parental
rights would be detrimental to the child under one of the four exceptions listed in section
366.26, subdivision (c)(1)(B). (In re C.F.G. (2011) 193 Cal. App. 4th 549, 553.) An
exception to the termination of parental rights exists when "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
"The parent must do more than demonstrate 'frequent and loving contact [,]'
[citation] an emotional bond with the child, or that parent and child find their visits
pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental
role' in the child's life." (In re Derek W. (1999) 73 Cal. App. 4th 823, 827.) The parent
must also show that his or her relationship with the child " 'promotes the well-being of
the child to such a degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.' " (Ibid., quoting In re Autumn H. (1994) 27
Cal. App. 4th 567, 575 (Autumn H.).)
We review the juvenile court's ruling under the substantial evidence test
(Autumn H., supra, 27 Cal.App.4th at p. 576), viewing the evidence in the light most
favorable to the prevailing party (In re J.I. (2003) 108 Cal. App. 4th 903, 911). We do not
attempt to resolve conflicts in the evidence or evaluate the weight of the evidence; rather,
we must draw all reasonable inferences in support of the court's findings and affirm the
order even if there is substantial evidence supporting a contrary finding. (In re Baby
Boy L. (1994) 24 Cal. App. 4th 596, 610.)
17
Here, the Mother and the Father do not challenge the juvenile court's finding that
K.S. is adoptable. Instead, they argue their parental rights should not have been
terminated given the beneficial nature of their ongoing relationship with K.S. The
Agency acknowledges that the parents had regular visitations with K.S. Nonetheless, the
Agency maintains that the parents have not shown that they occupy a parental role in
K.S.'s life and failed to show their respective relationships with K.S. outweighed the
benefits of adoption. We agree.
K.S. was taken into protective custody when he was only four months old after it
was apparent that he had suffered brutal abuse. During visits with K.S., the Mother was
consistent, appropriate, and affectionate. She played with K.S., fed him, and changed his
diaper. Although tentative at first, the Father took on a more active role during later
visits. K.S. was responsive to the Mother's voice, often smiled in his parents' presence,
and attempted to speak to the Mother.
Although there was evidence that K.S. reacted positively to his parents, generally,
he interacted well with adults and also was engaging and receptive with his grandmother,
the CASA, and the visitation supervisor. Jenkins described K.S. as a "very friendly baby
who appears to enjoy interacting with anyone who gives him attention." In addition, K.S.
separated easily from his parents after visits and did not experience any distress from the
separation. This evidence supports Jenkins's opinion that K.S. did not form a
"substantial, positive emotional attachment" with either parent as required in Autumn H.,
supra, 27 Cal.App.4th at page 575. And the court placed great weight on Jenkins's
testimony and was entitled to do so. (See In re Casey D., supra, 70 Cal.App.4th at p. 53.)
18
In addition, we note that neither parent offers a compelling argument why the
possible detriment from terminating parental rights would outweigh the stability offered
by adoption. (See In re Helen W. (2007) 150 Cal. App. 4th 71, 81; Autumn H., supra,
27 Cal.App.4th at p. 575.) Indeed, the Mother only addressed this issue in her reply brief
and the Father did not directly tackle it at all. In failing to do so, both parents did not
adequately discuss the abuse K.S. suffered. Despite the appalling injuries K.S. endured,
nowhere in the record is it apparent that the Mother or the Father explained how K.S.
came to be injured or took responsibility for the injuries. Although the Mother seems to
somewhat blame the Father in her later therapy sessions, she appears to lack conviction.
She maintains contact with the Father, visits K.S. with the Father, and does not
adequately address the Father spending time with K.S. if she were to regain custody. The
juvenile court noted that the Mother's safety plan failed to address the type of abuse K.S.
experienced.
Although the Mother may have exhibited some awareness of her shortcomings as
a nonprotective parent, the Father unabashedly ignores the fact his son was abused. He
offers no cogent explanation how it occurred or why he failed to take any action to
protect his son.
Against this backdrop, we are satisfied that substantial evidence supports the
juvenile court's finding that the beneficial parent-child exception did not apply here as to
either the Mother or the Father.
Finally, we note that the Father argues this case in analogous to In re S.B. (2008)
164 Cal. App. 4th 289 (S.B.). It is not and we once again caution an appellant from relying
19
upon that case. In S.B., we concluded the beneficial relationship exception does not
require that a parent establish that a child's primary attachment was to him or her. (Id. at
p. 299.) Nonetheless, since we issued our opinion in S.B., we have discouraged the
improper and inaccurate use of that opinion. (See In re Jason J. (2009) 175 Cal. App. 4th
922, 937.) Further, we expressly limited the holding of S.B.: "[W]e once again
emphasize that S.B. is confined to its extraordinary facts. It does not support the
proposition a parent may establish the parent-child beneficial relationship exception by
merely showing the child derives some measure of benefit from maintaining parental
contact." (In re C.F. (2011) 193 Cal. App. 4th 549, 558-559.) Here, there are not any
"extraordinary facts" that compare favorably with S.B. The Father's reliance on that case
is misplaced.
Accordingly, we conclude substantial evidence supports the juvenile court's
finding that the beneficial relationship exception did not apply here.
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
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