In re Julia G. CA5 ( 2020 )

Filed 11/19/20 In re Julia G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re JULIA G. et al., Persons Coming
Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F081094
SOCIAL SERVICES,
(Super. Ct. Nos. 13CEJ300329-1,
Plaintiff and Respondent, 13CEJ300329-2, 13CEJ300329-3
& 13CEJ300329-4)
v.
EVA M. et al., OPINION
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. William
Terrence, Judge.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant Eva M.
Jacques Alexander Love, under appointment by the Court of Appeal, for
Defendant and Appellant Justin M.
* Before Poochigian, Acting P.J., Meehan, J. and De Santos, J.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
In this juvenile dependency case, Eva M. (mother) and Justin M. (father)
(collectively, “the parents”) appeal the juvenile court’s order terminating their parental
rights as to their four minor children (Welf. & Inst. Code, § 366.26).1 Both parents
contend the juvenile court erred by failing to apply the beneficial parent-child
relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).
Finding no error, we affirm.
FACTUAL AND PRCEDURAL BACKGROUND
In December 2018, the Fresno County Department of Social Services (department)
received a referral alleging general neglect of eight-year-old Julia G., six-year-old Justin
G., three-year-old Jordan G., and 12-month-old Joseph G. (collectively, “the children”)
due to unsanitary living conditions and ongoing domestic violence between mother and
father. Most recently, father had sent a threatening text message to mother and punched
her in the face, causing mother to call the police. Father was arrested for violating an
existing domestic violence protective order. Animal feces was observed throughout the
home, there was minimal food, and the children were dirty. There were also concerns
mother had been using methamphetamine. The investigating social worker noticed no
visible signs of physical abuse on any of the children. Both Julia and Justin, however,
reported to ongoing domestic violence taking place in the home in their presence. Jordan
and Joseph were too young to make statements. The children were placed in protective
custody.
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2.
Mother admitted to domestic violence in the relationship and said that father was
using drugs. She allowed him to care for the children while he was under the influence
because she had no one else to rely on.
Mother was late to a team decision making meeting because she had used a
mixture of methamphetamine and heroin the night before. It was decided at the meeting
the children would remain in out-of-home care.
The department filed a petition on behalf of the children alleging they came within
the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) [failure to
protect] and (c) [serious emotional damage] due to domestic violence, drug use, unsafe
and unsanitary living conditions, and risk of suffering serious emotional damage due to
domestic violence.
Father denied any domestic violence but admitted to using marijuana and
methamphetamine and caring for the children while under the influence.
On December 20, 2018, the court ordered the children detained from the parents
and set the matter for a combined jurisdiction and disposition hearing. The children were
placed together in a foster home. Mother enrolled in random drug testing and tested
positive for amphetamine, opiates, and creatinine on December 19, 2018. She tested
negative for alcohol and controlled substances on December 26 and 31, 2018, and on
January 4, 2019. Father did not register for random drug testing.
Amended petitions were filed, adding allegations that Jordan and Joseph came
within the court’s jurisdiction under section 300, subdivision (j) [abuse of siblings] due to
a prior welfare case involving Julia and Justin. In 2013, Julia and Justin had been
removed from the parents’ custody due to substance abuse and domestic violence. The
children were returned to the parents’ custody in 2015 after the parents had completed
family maintenance services, including substance abuse and domestic violence, and the
case was dismissed.
3.
The department’s jurisdiction and disposition report indicated that after the
parents’ 2013 child welfare case was dismissed, mother tested positive for
methamphetamine at the time she gave birth to Jordan. Joseph was born in 2017 and
diagnosed with failure to thrive. From 2016 through October 2018, the department
received multiple referrals related to the family’s drug use, domestic violence, and
general neglect. In December 2017, a three-year restraining order was issued by family
court protecting mother and the children from father.
Because the parents were demonstrating ongoing issues for which they had
received services in the past and had failed to ameliorate those issues, the department
concluded removal was necessary. In addition, the department reported that both parents
met the criteria for the bypass provisions of section 361.5, subdivision (b)(13) in that they
had a history of extensive, abusive, and chronic use of drugs or alcohol, had resisted prior
court-ordered treatment, and that it was not in the children’s best interests for the parents
to receive reunification services. The department reported that mother had been using
drugs since 2010 and father had been using drugs since he was 13 years old. As part of
the previous dependency case, mother and father had each completed a residential
substance abuse program and participated in aftercare treatment. The department
reported mother and father had passively resisted treatment as evidenced by mother’s
positive test and admission she used heroin and methamphetamine and father’s admission
he uses methamphetamine and marijuana.
Julia completed a mental health assessment in February 2019, and it was
determined that she met medical criteria for mental health services. She began seeing a
therapist weekly. Justin, Jordan, and Joseph were also assessed but were not determined
to need services.
At the combined jurisdictional and dispositional hearing held on April 4, 2019,
Julia testified she wanted to live with her parents. She testified father is “nice, and he
takes us to the fun places a lot. And he buys us stuff, and I love him.” She testified
4.
mother “is nice, and she is a good person, and she would take us to places too, like
church. And I love her.” Julia also testified the parents fought, and they yelled and hit
each other. She said it made her sad, it was scary, and it happened a lot.
Justin testified he wanted to return home to the parents because he misses and
loves them. Justin testified his parents fought; they yelled and “kind of” hit each other
too. Justin said it did not feel good when it occurred in his presence. Justin testified
where he lives right now is “good.” His visits with the parents were good.
Father testified he and mother had a history of domestic violence but denied ever
hitting mother. Father said he and mother yell at each other but there was “not much”
actual physical violence and that it occurred years and years ago. Father testified it was
his opinion that past services were not successful because he and mother were separated
at the time. They had since “come back together” and were living together.
Mother testified father had never hit her and that there were different forms of
domestic violence in the relationship, “not physical, really.” She denied telling police
father punched her and said she called the police because she had “had enough of
fighting.” Mother testified she and father were participating in couples therapy. Mother
testified that during the previous dependency case, she and father were not allowed to
attend couples counseling and attended services separately. Mother stated she and father
“were not a team” during the previous dependency case, and she was “distracted” with
what he was doing in his program. She and father were currently in a good place in their
relationship.
The court found each allegation in the petition true and that the bypass provisions
of section 361.5, subdivision (b)(13) applied. As to the issue of whether providing
services was in the best interests of the children despite the applicable bypass provisions,
the court stated it found Julia’s and Justin’s testimony about the violence in their
household “very compelling” and noted that the parents’ “denial seems to be alive and
well when it comes to the issue of domestic violence in this case.” For those reasons, as
5.
well as the interest of stability and continuity of the children, the court found providing
services was not in the best interests of the children “despite the testimony of the children
who did say that they love their parents and that they want to go home with their
parents.” The court ordered the parents would not be provided with reunification
services. The matter was set for a section 366.26 hearing, and the parents were ordered
to have two supervised visits per month.
The visits went well, with the parents bringing food and activities. The children
generally greeted their parents with hugs and kisses and no issues were noted at the end
of visits. The children’s faces were described as “light[ing] up with excitement and
smiles” when they saw their parents.
The social worker reported that Julia often recollected memories of when she lived
with her parents. Julia told the social worker she missed her parents and remembered
when her parents taught her and her brothers to love each other. She said her parents
fought a lot but they really loved each other. Justin became emotional when speaking
about his parents to the social worker. Jordan was not displaying any behavioral
problems and had age appropriate mental and emotional reactions. Joseph was noted as
doing “exceptionally well” when separating from his birth parents and care provider. He
was described as easily soothed and not displaying separation anxiety from either the
parents or the care provider.
The children’s paternal cousin, Stephanie D., came forward requesting placement
of the children and expressed a desire to adopt them. The children and Stephanie met at a
McDonald’s in June 2019, and the visit went well with the children asking at the end of
the visit when and if they would get to visit with her again.
In July 2019, both parents filed section 388 petitions requesting family
maintenance services, alleging they had participated in voluntary services. The court set
a hearing for the section 388 petitions for the same day the section 366.26 hearing was
scheduled.
6.
In August 2019, the social worker spoke to Julia and Justin about the likelihood
they would be adopted and that they potentially would change placements to live with
Stephanie. Julia and Justin expressed concern about not being able to visit their parents.
Julia told the social worker she felt like a child “sometimes only” because she had to
protect her brothers and thinks a lot about her parents. Julia stated her parents are always
on her mind. Julia was emotional about being adopted but said she would rather be with
Stephanie than with strangers. Justin cried and said he wanted to live with his
grandfather but was easily consoled.
Later that month, the children were placed with Stephanie, who lived out of
county approximately three hours away. The children appeared to be happy and excited
when they arrived at Stephanie’s home. The children adjusted well and enjoyed their
new schools.
At a visit the day after the children were placed with Stephanie, Julia and Justin
told the parents, “They said we aren’t going to see you[] both until we are adults.” Justin
became emotional. Julia then told the parents she is not so sad because she is with family
and told them how much she likes her house. The rest of the visit went well. The
parents’ visits with the children continued to go generally well. The parents usually
brought food, and the family ate and played together. The children were happy to see the
parents.
By the time the social worker conducted a home visit in September, the children
were beginning to call Stephanie “mommy.” Jordan told Stephanie he wants to get into
her belly so he can be her baby. When the social worker asked Julia, Justin, and Jordan if
they liked living with Stephanie, the children’s eyes “brightened up,” and they stated they
love living with her. They enjoy going to Stephanie’s parent’s home to ride bikes and
play with the animals. The social worker asked the children how the visits with their
parents were going, and Julia said, “I like them, but I don’t like them.” Julia said
traveling to visits is exhausting and she wishes visits were just once per month. Julia told
7.
the social worker that she is okay with being adopted by Stephanie and understands she
cannot return home to her parents. Justin stated he only wants to be adopted by mother.
Justin then became concerned about Joseph and stated he was too young to be adopted.
The social worker was able to calm Justin down when she assured him they would all be
adopted together.
When the social worker visited the children at home in October 2019, the children
were excited and happy to share their progress in school. They were making friends and
adjusting well to their routines. Julia was invited to a birthday party and reported no one
had ever invited her to a birthday party before. Julia and Justin reported that they love
living with Stephanie and report feeling safe with her. Julia told the social worker she
wanted to get adopted, and Justin stated he did not want to get adopted. Justin then
changed his statement and stated he would like to get adopted after Julia reassured him
they would get to stay together and they can visit their parents when they are 19 or 21.
The social worker observed that Joseph had developed a strong attachment to Stephanie.
He insisted on being held by her and cried when she was out of his sight and referred to
her as “mommy.”
In October 2019, the court ordered visits be changed from two times per month for
one hour to one time per month for two hours because of the travel time involved for the
children for visits.
When the social worker visited the children at home in November 2019, the
children continued to do well. Stephanie reported that Julia had told her she wants to be
adopted. Julia introduced the care provider as, “This is my cousin, but also my mom.”
Mother commissioned a bonding study to be conducted by clinical psychologist
Richard Engeln, Ph.D., of the children and the parents. Engeln summarized his findings
in a report. Engeln observed two visits between the parents and the children on
December 14, 2019, and January 11, 2020. Engeln noted the parents did a “very
admirable job” of working together, relating to the children with nurturance and
8.
direction. Engeln noted the positive affect of the children and the parents as they related
was “outstanding.” The children were positive and excited to see their parents and called
them “Mommy” and “Daddy” frequently.
At the first visit Engeln observed, the parents gave the children pajamas as
Christmas presents. The children asked to put them on and wore them for the remainder
of the visit and left with them. Engeln noted this “appeared to reflect [a] wish to please
their parents, and take a piece of them with them.” The children spoke about their
experiences from their foster home placement and the parents encouraged them without
defensiveness. The visit ended with the children jumping on father while he lay on the
floor and then laying on top of him while mother encouraged and changed Joseph’s
diaper. There were hugs and statements about the next visit as they left.
At the second visit, Engeln noted the children were excited to see their parents and
were affectionate. Engeln wrote he was “impressed” with how the children behaved
during the visits, which were two hours in length, the sensitivity of the two older children
of the needs of the two younger children, and the developmental levels of the children.
Engeln had a short interview with Julia. Julia identified her parents and siblings as
a family. Julia explained she was in a foster home because her parents were always
fighting. She described being happy and loving the foster home. Julia stated she would
be very upset if visits with her parents did not continue in the future.
Engeln concluded there was positive bonding of the parents with the children, and
positive bonding of the children with the parents. He wrote: “Because of the high
bonding demonstrated between Mother and the children, abrupt and lengthy separation
and lack of contact will be problematic for the children in the future. Children deal with
these feelings of abandonment with depression, or with anger. Children often
demonstrate this by rebelliousness, or feelings of resentment toward ‘the system,’ or
societal authorities.”
9.
When the social worker visited the children at home in January 2020, the children
continued to do well. They were adjusting very well, and participating in activities after
school, and responding well to Stephanie’s parenting.
At the section 366.26 hearing held on February 11, 2020, Julia testified she loved
her mom “a lot” and liked visiting with her. Julia testified she understood adoption to
mean “that you don’t go back with who you were and you live with them forever.” Julia
understood she would not get to go home to her mom, but she would like to. She would
feel “very sad” if she did not get to see her mom anymore and would also be sad about
not visiting her dad.
Justin testified his last visit with his parents went “amazing.” He understood
adoption to mean that he would stay with somebody else “for forever” and that he would
not see his parents anymore. He would be “very sad” if he did not get to visit with his
mom anymore and “[v]ery, very sad” if he would not visit with his dad anymore. Justin
testified he did not want to be adopted.
Stephanie testified the children were doing well in school. Julia won a
distinguished student award, and she and Justin have a lot of friends. They appear to be
happy in her home. Stephanie said she interacts with the parents at pick up and drop off
at visits and had one negative experience with father where he got upset when she said
she was not willing to do legal guardianship. She was not willing to be a legal guardian
because of the travel time involved for visits but would, as an example, be willing to take
the children for visits once every three months. Stephanie did not have concerns about
the relationship between her and the parents that would keep her from wanting to be the
legal guardian “as long as they know boundaries and that I’m the one in charge of the
children.” She had not had any negative experiences with them regarding boundaries.
Engeln testified as an expert on parent-child bond. From the two visits Engeln
observed, he viewed the relationship between the parents and the children to be “very
positive.” The children identify mother as “mommy” and the exchanges are nurturant
10.
and positive. The bonding appeared “very strong.” He believes there is a benefit to the
children’s relationship with mother. He testified it would be detrimental to eliminate the
relationship because the children see her as “mommy” and they need to have ongoing
visitation contact. Engeln opined severing contact would result in some depressive
features that could be expressed through rebellion in adolescence or through ongoing
depression. Engeln also said this was not a certainty, and he could not opine on how
these particular children would respond. The children could also end up idealizing the
parents; this, however, could be discussed in counseling, and its effects perhaps could be
minimized through counseling. Engeln also testified there is a positive, significant
attachment between the children and father and that ongoing contact with father would be
beneficial. The children “absolutely” benefit from the visits. The children would benefit
from a continued relationship with their parents and it would be detrimental to terminate
that relationship.
Out of the approximately 500 bonding studies Engeln has done, he finds children
had a bond with the parent approximately 90 percent of the time. Engeln testified the
relationship between mother and father is volatile, and it negatively affects the children a
great deal. Engeln opined the parents need to make significant changes in lifestyle
including living separately and being significantly involved in drug rehabilitation and
support for abstinence from drug use. If the volatility were to continue, and the parents
were not to make the changes necessary, the negativity would continue to affect the
children. There would be detriment even if the children were not witnessing the fighting;
the children would have an awareness if the parents were living together and violent with
one another.
Mother testified she was not currently in a romantic relationship with father and
that they decided to separate in May though there were times they lived together after
May. Mother is planning to file for divorce. She had previously filed in 2013, but it was
never finalized; since it had been so long, she was going to have to file new paperwork.
11.
Mother had returned to live with father after filing the paperwork previously, but did not
currently intend to stay in a relationship with father. They were not currently living
together. Mother testified she was working on her sobriety; she was attending meetings
and was about two weeks away from completing an out-patient program. She was also
participating in counseling and had discussed her substance abuse and history of being in
a domestic violence relationship with her counselor. She had also completed a domestic
violence program.
Father testified he and mother visit together because they thought it was best for
the children. Engeln’s testimony that mother and father were an intact couple was a
misunderstanding. Father said he currently lived in a different town, but when he came
to town for visits or court, he would sometimes stay with mother. When asked if he and
mother were a couple, he responded, “A couple, as everyone in this room understands,
no. But we do have children together and we’ll always have to do—I think it’s our
responsibility to better ourselves for our children.” He said, “[t]echnically,” he and
mother stopped living together in October or November. When asked if he intends to
reconcile with mother, he responded, “I’ll do whatever it takes to get my kids back.”
When pressed further, he responded, it was not his “intention at this time.” He later said
he cannot predict the future but reconciling with mother was not one of his goals. Father
testified his relationship with mother is not toxic.
The adoptions social worker, Mia Lee, testified she is a social worker practitioner,
with Bachelor’s and Master’s Degrees in social work. Lee has been trained to assess
parent-child relationships, children’s adoptability, and assess what is in the children’s
best interest. She has received training regarding trauma and issues regarding the
emotional well-being of children who have been removed from their parents, and the
trainings are ongoing.
Lee opined it would not be detrimental to terminate the parental rights of the
parents. She testified the children are doing really well since being placed with Stephanie
12.
and are thriving in their development. Julia no longer needs mental health services since
being placed with Stephanie. Julia adjusted very well into the home, no longer bites her
nails, and was enjoying her time being a child.
Lee testified to ensure the children have long-term stability, care, safety and love,
the plan should be adoption. Lee testified that her recommendation was adoption despite
Justin’s testimony he did not want to be adopted and Julia’s and Justin’s testimony they
would be sad if they were not to see their parents again. Lee stated that in most cases,
children have some benefit to a relationship with their parents and that the department is
not disputing there is a bonded relationship between the parents and the children. Lee
explained that because of the children’s ages, adoption would be the most permanent plan
for them to remain together as a sibling group should any of them develop negative
behaviors in the future. Lee also emphasized adoption was the best plan to minimize
future changes, which was particularly important given that Julia and Justin had been
removed from their parents’ twice in a short time. Further, Julia and Justin worry about
their parents and had not had the opportunity to be children in their care. Adoption
would prevent future uncertainty.
Lee testified that if the children were to show symptoms of depression resulting
from the severing of their relationship with their parents, the department would send a
mental health referral, and they would be assessed by a clinician. Lee also testified
Stephanie is considering postadoptive contact with the parents. When asked if her
opinion regarding adoption is affective assuming postadoptive contact is not permitted,
Lee responded that she believed the children’s need for permanency outweighs the
parent-child relationship. Lee testified the volatility of the parents’ relationship
contributes to her opinion. Lee gave an example of mother calling her after May 2019
and wanting her visits separate from father and calling back six days later to say she
wants the visits together again.
13.
Lee testified that when a plan of legal guardianship is ordered, parents can bring
requests to modify the guardianship in court. Lee testified that for Julia and Justin there
has been a lot of uncertainty with regard to adoption, and they have changed their
answers about whether they want to be adopted. Lee testified that she has seen the two
younger children run to Stephanie and call her mom and are very comfortable with her
and her family. The parents’ ability to bring requests to change orders on a frequent basis
would affect the children because it would add uncertainty.
Lee testified the parental bond is more secure for Julia and Justin than it is for
Jordan and Joseph. If Julia and Justin were to be placed in a different permanent plan
than Jordan and Joseph, there would be detriment. Both Julia and Justin have expressed
to Lee that no matter what they would like to remain together. If they were in the same
home but with different plans, it could cause detriment because Julia and Justin would
have visits with their parents and it would cause confusion for all four children and
resentment for the two younger children.
Both counsel for the department and the children argued that adoption is the best
permanent plan for the children. The parents argued that the beneficial parent-child
relationship exception to termination of parental rights applied and requested the court
order a permanent plan of legal guardianship.
The court denied the parents’ section 388 petitions finding they had not shown a
change of circumstances nor that the requests were in the best interests of the children.
The court continued the matter to February 25, 2020, for ruling on the
section 366.26 hearing, noting the primary issue was whether the beneficial parent-child
relationship exception to termination of parental rights applied.
In making its ruling, the court found the children were adoptable. As to whether
the beneficial parent-child relationship exception to adoption applied, the court first
found the parents had consistently and regularly visited the children. The court then
turned to the issue of whether that visitation and contact has created a parent-child
14.
relationship and the benefit of maintaining that parent-child relationship outweighs the
benefits of adoption. The court noted the issues in the present case were very similar to
the issues the parents were dealing with in 2013 and 2014 regarding substance abuse and
domestic violence, and these issues are continuing to have negative effects on the family.
The court found Julia’s and Justin’s testimony “compelling” and referenced their
testimony regarding the violence in their home at the jurisdictional hearing as well as
their testimony at the section 366.26 hearing. The court then noted: “This Court has to
answer the question as to not just whether a bond exists between Julia and Justin and each
of their parents, but does that bond and that relationship outweigh the benefits the
children would receive if placed for adoption and a new permanent home was
established.” The court noted Engeln’s testimony that the parents’ relationship was
volatile and that they need to make significant changes in their lifestyles. The court
characterized the parents’ history as “consistently unstable.” The court opined the issues
of substance abuse and domestic violence had not been appropriately addressed. The
court concluded the evidence showed the children would not be greatly harmed if
parental rights were terminated and the parent-child relationship did not outweigh the
benefits of adoption. The court terminated the parents’ parental rights and ordered
adoption as the permanent plan for the children.
The parents appealed.
DISCUSSION
Under section 366.26, the statutory preference is to terminate parental rights and
order the child placed for adoption. (§ 366.26, subd. (b)(1).) “The Legislature has thus
determined that, where possible, adoption is the first choice. ‘Adoption is the
Legislature’s first choice because it gives the child the best chance at [a full] emotional
commitment from a responsible caretaker.’ [Citation.] ‘Guardianship, while a more
stable placement than foster care, is not irrevocable and thus falls short of the secure and
15.
permanent future the Legislature had in mind for the dependent child.’ ” (In re Celine R.
(2003) 31 Cal. 4th 45, 53.)
At a section 366.26 hearing, when the juvenile court finds by clear and convincing
evidence the child is adoptable, it is generally required to terminate parental rights and
order the child be placed for adoption. (§ 366.26, subd. (c)(1).) There are statutory
exceptions which “ ‘permit the court, in exceptional circumstances [citation], to choose
an option other than … adoption.’ ” (In re C.B. (2010) 190 Cal. App. 4th 102, 122.)
“ ‘[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.’ ” (In re K.P. (2012) 203 Cal. App. 4th 614, 621, italics added.)
The beneficial parent-child relationship exception is one of the statutory
exceptions. Section 366.26, subdivision (c)(1)(B)(i) provides the court shall terminate
parental rights unless “[t]he court finds a compelling reason for determining that
termination would be detrimental to the child” where “[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).) It is the parent’s burden to show
termination of parental rights would be detrimental to the child because an exception
applies. (In re Breanna S. (2017) 8 Cal. App. 5th 636, 646.)
“[B]enefit from continuing the relationship,” within the meaning of section
366.26, subdivision (c)(1)(B)(i) has been interpreted to mean “the relationship 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.” (In re Autumn H. (1994)
27 Cal. App. 4th 567, 575.) “ ‘ “[F]requent and loving contact” is not sufficient’ ” (In re
Marcelo B. (2012) 209 Cal. App. 4th 635, 643) as “[i]nteraction between natural parent
and child will always confer some incidental benefit to the child” (In re Autumn H., at
p. 575).
16.
In evaluating the issue of whether the relationship outweighs the well-being the
child would gain from being adopted, the court must balance “the strength and quality of
the natural parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer. If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed, the preference for adoption is overcome and the
natural parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at
p. 575.)
Here, both parents contend the juvenile court erred when it failed to apply the
exception. The parties agree on appeal that the parents maintained regular and consistent
visits with the children throughout the dependency proceedings and that there was
evidence of some positive parent-child interaction between the parents and the children.
Thus, we focus our review on the juvenile court’s conclusion that any benefit derived
from continuing the parent-child relationship was not a compelling reason for
determining termination would be detrimental to the children so as to overcome the
statutory preference for adoption. We review this conclusion for abuse of discretion, and
any factual findings that underlie it for substantial evidence. (See In re Breanna S.,
supra, 8 Cal.App.5th at p. 647.) “ ‘ “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 295, 318–319.)2 We find no error. We do not find the juvenile court was
2 Appellate courts have adopted differing standards of review for the beneficial
parent-child relationship exception: substantial evidence (see, e.g., In re G.B. (2014)
227 Cal. App. 4th 1147, 1165); abuse of discretion (see, e.g., In re Aaliyah R. (2006)
136 Cal. App. 4th 437, 449); and, more recently, a “hybrid” standard, which reviews the
juvenile court’s factual findings (e.g., whether the parents regularly and consistently
visited and whether a beneficial parent-child relationship existed) for substantial
evidence, and a juvenile court’s conclusion that the benefit to the child derived from
preserving parental rights is not sufficiently compelling to outweigh the benefit achieved
by the permanency of adoption for abuse of discretion (see, e.g., In re Breanna S., supra,
8 Cal.App.5th at p. 647).
17.
unreasonable in determining this was not one of the “extraordinary” cases where this
exception should have been applied.
We acknowledge the parents and children had generally positive visits, which is
evidenced by the reports as well as Engeln’s observations. Engeln testified the children
would suffer some detriment if the relationship were to be severed. Engeln also testified,
however, that the parents needed to make significant lifestyle changes, and that volatility
in their relationship would negatively affect the children even if they were not directly
exposed to it. Though father points out the parents had been participating in services, we
do not find the court erred by finding the parents had not adequately addressed their
substance abuse and domestic violence issues, given Engeln’s assessment and the
evidence on the record that the parents’ issues with substance abuse and domestic
violence had previously continued despite completing services in the past. Engeln also
testified that the children participating in therapy could help with some of the possible
negative effects of severing the parent-child relationship, and Lee testified the children
would be referred to therapy if they displayed any negative effects. Engeln’s testimony
did not compel the court to find the children would be greatly harmed if parental rights
were to be terminated.
We also acknowledge Julia and Justin both testified they would be very sad if they
never saw their parents again. While under subdivision (h)(1) of section 366.26, the
juvenile court must consider the wishes of the child during permanency planning
proceedings, the court also must analyze the beneficial relationship exception within the
The issue is currently pending before the California Supreme Court in In re Caden
C. (2019) 34 Cal. App. 5th 87, review granted July 24, 2019, S255839. We note there is
not much practical difference between the different standards of review. Under any of
these standards of review, the practical differences between them are slight because they
all give broad deference to the juvenile court’s judgment. (See In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351.) We should interfere only if under all the evidence viewed
most favorably in support of the juvenile court’s action, it finds no judge could
reasonably have made the order. (Ibid.) We note we find no error under any of them.
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context of the child’s best interests. (§ 366.26, subd. (h)(1); In re Tabatha G. (1996)
45 Cal. App. 4th 1159, 1165.) Even when a child loves his or her parents and desires
continued contact with them, the court may nonetheless terminate parental rights if doing
so is in the child’s best interests. (§ 366.26, subd. (h)(1); In re L.Y.L. (2002)
101 Cal. App. 4th 942, 955.)
Here, the children’s counsel argued that despite Julia’s and Justin’s desire to be
with their parents, it was not in the children’s best interest based on the parents’
instability in their lives and the stability they would have if adopted by Stephanie.
Counsel noted guardianship would create more instability in their lives. Further, the
record contains evidence that despite the children’s enjoyment of time with their parents,
Julia and Justin both expressed worry for the parents, and Julia expressed she felt like she
could not be a child when in their care; there were reports from visits of Julia noticing
mother had not gotten a pedicure and asking her why and if she and father will stop
fighting when they go back with them, Justin getting emotional and telling mother he
always worries about her, and Justin getting concerned after seeing a mark on mother’s
face, which turned out to be paint. For these reasons, we find no error in the court’s
conclusion that its order was in the children’s best interests despite their stated desires.
Mother argues this case is like In re Scott B. (2010) 188 Cal. App. 4th 452 and In re
Amber M. (2002) 103 Cal. App. 4th 681, an argument which father joins. Both cases are
distinguishable.
In In re Scott B., the appellate court reversed an order terminating parental rights,
holding the court should have applied the beneficial parent-child relationship exception.
There, the child had special needs and consistently reported he wanted to live with his
mother throughout the proceedings. The child’s court-appointed special advocate
(CASA) opined maintaining visits with the mother was “ ‘very important.’ ” (In re Scott
B., supra, 188 Cal.App.4th at p. 461.) The CASA recommended that the mother’s
parental rights not be terminated because when the child found out he might get adopted,
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he threatened to run away and his behavior regressed to growling, biting, and lying. (Id.
at p. 462.) The child’s behavior had stabilized, by his foster mother’s estimation, with
the support of the mother. (Id. at p. 465.) The child was 11 years old and had lived with
his mother for nine years. (Id. at p. 471.) The child’s CASA reported the child would
suffer detriment if the relationship were to be severed. (Ibid.)
Similarly, in In re Amber M., the appellate court reversed termination of parental
rights, finding the juvenile court should have applied the exception, where a psychologist,
therapists, and the CASA all concluded a beneficial parental relationship clearly
outweighed the benefit of adoption; the two older children had a strong primary bond
with their mother, and the younger child was strongly attached to her. (In re Amber M.,
supra, 103 Cal.App.4th at pp. 690–691.)
Here, in contrast to In re Scott B., all of the children were very happy with
Stephanie and thriving. Jordan and Joseph were of young ages and especially attached to
Stephanie. While we acknowledge Julia’s and Justin’s testimony and their expressed
desire to continue visits with their parents, there was no evidence they exhibited any
emotional or behavioral issues that resulted from not being in the parents’ care. Julia
even requested to reduce visits because of the travel time involved, which indicates she
was comfortable with reduced contact. When visits were reduced from two times per
month to once a month, there was no evidence the children had any adverse reaction to
the reduction. The children were able to participate in school and social and family
activities. There was no evidence that not being with the parents had any debilitating
effect on their daily life or ability to participate in activities. In fact, Julia’s mental health
improved after being placed with Stephanie. There was no evidence the children had any
difficulty separating from the parents after leaving visits.
Further, in In re Amber B., the appellate court there found a “common theme
running through the evidence” that the relationship outweighed the benefit of adoption.
(In re Amber M., supra, 103 Cal.App.4th at p. 690.) We do find a similar “common
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theme” in the evidence before us. We do not dispute that the children love their parents,
but this record does not demonstrate the type of parent-child relationship that would
compel the juvenile court to have applied the beneficial parent-child relationship
exception to termination of parental rights. We find no abuse of discretion and,
accordingly, no error.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.
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