In re E.A. CA3 ( 2020 )

Filed 11/19/20 In re E.A. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
In re E.A. et al., Persons Coming Under the Juvenile C091208
Court Law.
BUTTE COUNTY DEPARTMENT OF HEALTH (Super. Ct. Nos. 18DP000015,
AND HUMAN SERVICES, 18DP000016)
Plaintiff and Respondent,
v.
S.A. et al.,
Defendants and Appellants.
Appellants S.A. (mother) and M.A. (father), parents of minors E.A. and M.A., Jr.,
appeal from the juvenile court’s orders denying mother’s petition for modification and
terminating parental rights as to the minors. (Welf. & Inst. Code, §§ 388, 366.26, 395.)1
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
Mother contends the juvenile court erred by not considering her petition for modification
requesting the juvenile court vacate its jurisdiction orders and hold a new evidentiary
hearing on jurisdiction prior to termination of her parental rights. Father joins in this
contention. Parents also contend the juvenile court erred by failing to find the beneficial
parental relationship exception to adoption applied. We affirm.
I. BACKGROUND
On January 24, 2018, Butte County Department of Health and Human Services
(the Department) filed section 300 petitions on behalf of minors E.A. (born November
2016) and M.A. (born October 2015), based on allegations of serious physical abuse to,
and failure to obtain medical care for, E.A., which had resulted in serious brain damage
and developmental deficits. The petitions alleged E.A. had serious brain damage as a
result of parents’ physical abuse and that M.A. was at risk of suffering abuse and neglect
as well.
E.A. had been admitted to Sutter Hospital on January 17, 2018, and a brain scan
was performed which indicated that the minor had “black holes” in the brain, or a loss of
brain mass. The treating physician indicated this condition could be the result of three
possible circumstances: an infection, a major accident (which the parents reported had
not occurred), or physical abuse. The physician believed that the sort of trauma suffered
by E.A. was most likely the result of physical abuse, such as violently shaking the baby.
E.A. was found to have “global developmental delay and failure to thrive.” Her brain
MRI was significantly abnormal and included a large cyst/hydrocephalus and subdural
effusions with hemosiderin suggestive of intracranial bleeds, potentially of different ages,
which were concerning for non-accidental trauma, especially considering the lack of
other organic etiology.
2
The 14-month-old E.A. was reported to be the size of a three-month-old child, and
had significant developmental delay in that she was unable to sit or roll over.2 The minor
was not eating solid foods and drank only six ounces of formula a day. Mother reported
the minor had cried “non-stop” for the first three months and then, one day, she became
quiet and would not eat.
The petitions also alleged that the minors’ older sibling had been subjected to
severe parental abuse and that parents had their parental rights terminated as to the sibling
in May 2011. The sibling, Ma.A., had been admitted to the hospital when she was three
months old with “significant injuries including fractures in both arms and both legs,
multiple fractured ribs in various stages of healing, and four fractured vertebrae.” Parents
were convicted, after entering no contest pleas, of felony child abuse in connection with
the abuse of Ma.A. (Pen. Code, § 273a, subd. (a).)
The juvenile court issued a protective custody warrant for E.A. and M.A. and the
minors were formally detained on February 5, 2018. Parents were provided visitation.
The jurisdiction hearing was set for February 22, 2018.
The jurisdiction hearing was continued numerous times over the course of the
following year, first for mother’s request to seek authorized funding for an expert witness
(which was granted), and then for mother to obtain the expert and allow the expert to
review and report his findings. Then, on January 10, 2019, as a result of parents’
intentions to file a nomination to appoint the caretaking relatives as guardians, the
contested jurisdiction hearing was vacated, and a jurisdiction and guardianship
nomination hearing was set.
The jurisdiction hearing and guardianship nomination hearing took place on
January 31, 2019. Parents objected to jurisdiction, although neither presented testimony
2 These allegations were included in the amended petitions, filed in January 2018.
3
or further evidence. The juvenile court found the allegations in the petitions true,
sustained the petitions, and set a disposition hearing and guardian assessment for
March 28, 2019.
Prior to the disposition hearing, the relative caregivers expressed their interest in
adopting the minors. Both minors were doing well in their care. Although M.A. did get
upset when he had to say goodbye to parents after visits, he remained stable and had no
major issues. He was “clearly very comfortable and happy” in the relatives’ care, showed
affection to his caregivers and looked to them for comfort. E.A. had substantially
improved in foster care placement prior to being placed with her relative caregivers. The
relative caregivers were able to provide even more focused care for E.A., making all of
her many medical and developmental appointments a priority, and E.A. continued to
progress in their care. E.A. could vocalize, but not form words, and could roll over, but
not walk. She had a gastrostomy tube installed but had been slowly expanding her oral
food intake. Parents were consistent in their visitation attendance and visits were positive
and appropriate. The Department emphasized that while it may never know exactly what
happened to E.A. to cause her medical issues, whatever the precise (and likely
nonaccidental) cause, parents should have recognized E.A. had urgent issues that required
medical attention, and their failure to address those issues had caused permanent damage.
The Department recommended parents be bypassed for reunification services pursuant to
section 361.5, subdivisions (b)(6) [severe physical harm to sibling Ma.A. by parent] and
(b)(11) [termination of parental rights to sibling Ma.A.] and, instead of guardianship, a
permanent plan of adoption with the relative caregivers be pursued.
The disposition hearing took place on May 20, 2019. Parents objected to the
Department’s recommendation but did not present any testimony or additional evidence.
The juvenile court declared the minors dependents of the court, ordered the minors
removed from parental custody, bypassed parents for reunification services, and set a
section 366.26 hearing.
4
The Department’s report filed August 26, 2019, recommended termination of
parental rights and a permanent plan of adoption. The minors continued to do well in
their placement with the relative caregivers, the minors were considered adoptable, and
the caregivers were committed to providing permanency for them. M.A. was noted to be
medically healthy but had a slight developmental delay. He was described as curious and
content and showed no signs of struggling with his mental and emotional health. There
were also no longer concerns about his transitions at the end of visits with parents and he
appeared comfortable and happy in his placement home. E.A. had continued to make
significant progress toward developmental goals since her placement with the relative
caregivers.
Parents claimed, as they had claimed in sibling Ma.A.’s case, that a rare genetic
condition was the cause of E.A.’s medical condition. They had continued to attend
supervised visits twice a week. The visits were described as positive but unremarkable.
The minors attended the visits, enjoyed limited time with parents, and returned home to
the caregivers. Neither minor showed any negative reactions before or after visits. M.A.
transitioned well after visits. Due to the extent of her brain injury, E.A. did not appear to
benefit or face negative repercussions as a result of the visits. Visitation did not appear to
disrupt the minors’ daily routines but, because the case had been pending for well over a
year, it had become established as part of M.A.’s routine. Accordingly, the Department
recommended visitation be gradually reduced upon termination of parental rights to avoid
the disruption of his routine. The juvenile court granted parents’ request for funding for
an expert witness to do a bonding study.
On October 23, 2019, mother filed a declaration and letter from Heather
Kirkwood, an attorney in Washington state, and a preliminary report of Dr. Roland
5
Auer.3 According to the Kirkwood letter, dated July 17, 2019, she was contacted in
February 2019, briefly reviewed records from January, 15, 2018, January 15, 2019, and
April 18, 2019, and had concluded that E.A. has porencephaly—a rare disorder that
presents with brain cysts, loss of brain tissue, and developmental delay. She had also
concluded that sibling Ma.A. had coagulation abnormalities and weak bones
(rickets/osteopenia). Dr. Auer’s preliminary report, dated October 21, 2019, indicated he
had been contacted by Kirkwood on February 21, 2019, who asked him to look at E.A.’s
January 15, 2019 MRI scans. His initial differential diagnosis included: hydrocephalus,
porencephaly, and subarachnoid cyst (of which he lists several possible types). Several
months prior to the preparation of his report, Auer was contacted by father’s attorney,
who asked him to provide a formal opinion based on a complete review of the medical
records. He agreed to do so but did not receive the medical records. The additional
information he did receive (including descriptions of the January 2018 MRIs and of
E.A.’s delayed growth and development) was consistent with porencephaly.
On November 5, 2019, mother filed the bonding study and its addendum, prepared
by Ce Eshelman. The bonding study was based on interviews with the social worker and
parents, parents’ bonding self-reports, a review of court documents, and a parent-child
observation during a scheduled visit. Other assessment methods, such as a child
attachment assessment, projective drawing assessment, or sentence completion
assessment were not administered due to the age or ability of the minors. Eshelman
found parents’ narrative of how they lost parental rights to Ma.A. and were now facing
the same fate with E.A. and M.A., despite their adamant denial that they abused any of
the children, to be “compelling and heart-wrenching.”
3 The documents were not filed in connection with a motion or petition. The submission
referenced October 24, 2019, which was the trial readiness date.
6
Eshelman observed parents’ contact with the minors to demonstrate their love and
bonds to the minors. They were engaged and attentive to both minors’ needs,
collaborating in an unforced and cooperative manner. Mother demonstrated an
understanding of E.A’s nonverbal communication and accommodation of E.A.’s
preferences and needs. E.A. made eye contact with mother and demonstrated smiling and
engaging vocal noises toward mother. M.A. referred to parents as “mom” and “dad,”
demonstrated deference to parents’ instructions, and sought positive attention such as
being watched while performing challenges. He was not, however, overly verbally
affectionate and showed “little demonstrative physical affection toward either parent.”
Eshelman noted that, given the infrequency of visits, more enthusiasm upon seeing
parents and more fanfare upon departure might have been expected. Neither minor,
however, showed big overtures of affection upon greeting or distress upon departing.
Eshelman concluded that parents were clearly bonded to the minors. They had more
difficulty parting than the minors, prolonging goodbyes and making many overtures.
Eshelman stated that, due to her disabilities, it was “not possible to fully assess the
strength of [E.A.’s] attachment to her parents. However, she does not shy away, fuss, or
refuse either parent’s engagement or affection, though it is unclear how much she
comprehends. I am, therefore, determining that she demonstrated attachment to her
parents by her frequent smiling[,] laughter[,] and lack of distress.” M.A. clearly enjoyed
parents’ company. Eshelman concluded that both minors appeared attached to parents.
She remarked that “[a]ttachment is one of the most important aspects of child
development—wounds to which last a lifetime,” and concluded that “[d]ue to the quality
and significance of the attachment [the minors] have with their parents,” it was her
opinion that adoption was not in their best interest.
The section 366.26 hearing commenced on December 5, 2019. Adoption
specialist Rachelle Duvall testified that the minors were adoptable and that she believed
adoption was in their best interest. She had reviewed the visitation notes that described
7
the parents’ visits as “unremarkable” and explained that this meant the “emotional states
of the children do not change from when the caregivers drop them off to bring, and spend
time, and have visits with parents, there’s no change in emotion or mood. They’re just
stable, which means . . . they have those bonds with their current caregivers, so there’s no
disruption between.” Duvall did not believe there were any benefits to maintaining the
relationship with parents that would outweigh the benefits of adoption.
Visitation coordinator Deanne Perry testified she had been supervising visits since
March 2018. Parents’ visits were heavily supervised and were always positive. Parents
behaved in a parental manner, not just like friendly visitors, working together, switching
roles, and sharing responsibilities during visits. The relationship between parents and the
minors appeared positive and akin to a “close-knit family.” When visits were recently
reduced to once a month, however, she did not notice a lot of difference in the minors’
behaviors. M.A. would sometimes cry at the end of visits, but not inconsolably so. He
generally transitioned well back to his caregivers. E.A. never cried at the end of a visit.
The minor’s caregiver confirmed M.A. used to ask about seeing parents but he no longer
asked about seeing them or appeared upset about not seeing them. M.A. referred to the
caretakers as “mom and dad.”
Eshelman testified as an expert in the area of bonding, attachment, and trauma.
She testified that when conducting a bonding study, she examines a number of factors
including a historical perspective of the preexisting relationship between the child, as
well as the child’s age. It was her belief that it is better to terminate parental rights for an
older child than a younger child. However, age is not a factor in whether a child is
attached to a parent. A child is either attached or not attached.
As part of her bonding assessment in this case, Eshelman observed a four-hour
visit between the parents and minors. During this observed visit she would have
expected the minors to show “big overtures of affection upon greeting or distress upon
departing,” but she did not observe any such behavior during the visit. M.A. was not as
8
“enthusiastic” with parents as she would have expected of a child who is attached, but he
clearly enjoyed being with them. E.A., despite her severe disabilities, was able to
communicate with parents, who understood and were responsive to her needs. Based on
these observations, Eshelman concluded the minors “behaved in a very attached way”
and were “very attached” to parents.
Eshelman believed it would be detrimental to the minors “to allow them to be
adopted and terminate . . . parental rights.” Her opinion was based upon her “awareness
of attachment, trauma, and what it does to the brain of a child for its lifetime.” She
testified that all children have implicit memory of their biological parents for the first 33
months of the child’s life and, regardless of the child’s age, the child will be “impacted
for a lifetime” by losing their biological parents. “If they lose their biological parent
under the age of 3, within the first 33 months, they’re going to be more significantly
impacted.” She testified that the California dependency system is “lag[ging] behind
evidence based models” and that the “permanency priority is mistaken.” In her opinion,
terminating parental rights is always detrimental to a child “but you can weigh what else
might be more detrimental.” She explained that she would not say maintaining parental
rights with a parent who is abusive is a better choice than adoption and, in cases where a
child is being abused by a parent, it would be appropriate to terminate parental rights.
She acknowledged that the court believes what occurred in this case was abusive but she,
personally, did not think that it was likely to recur. She had come to “a different
interpretation” and believed it was “like a one time, poor decision that was traumatic,
granted,” and that parents would need a lot of psychoeducation if they were to ever get
their children back. She opined that permanency is important, but not more important
that a securely attached biological family.
The juvenile court found the minors were likely to be adopted, that the beneficial
parental relationship exception to adoption did not apply, and terminated parental rights.
In finding the benefit from parental rights remaining intact did not outweigh the benefits
9
of permanency through adoption, the court rejected Eshelman’s theory that adoption is
almost never in a minor’s best interests, but also found that the instant matter fell within
Eshelman’s acknowledged exception that adoption may be appropriate when parents are
abusive.
II. DISCUSSION
A. Mother’s Petition for Modification
On December 16, 2019—the third day of the section 366.26 hearing—mother filed
a section 388 petition for modification requesting the court hold a new jurisdiction
hearing.4 Mother alleged parents had received a preliminary report from a physician-
scientist concluding that, based on his review of E.A.’s scans, her condition was likely
congenital, and had a second preliminary report from a different physician concluding
that, based on a review of sibling Ma.A.’s scans, she likely had congenital rickets.
Mother contends the juvenile court committed reversible error by failing to consider her
petition until after terminating parental rights.
We reject mother’s contention that the juvenile court “should have unequivocally
considered the modification petition by either denying it without a hearing or setting a
hearing, prior to ordering the termination of parental rights.” Mother relies on In re
Alayah J. (2017) 9 Cal. App. 5th 469 (Alayah J.), which found the juvenile court erred
when it refused to hear the mother’s petition for modification seeking unmonitored visits
and a home assessment, unless or until it decided not to terminate parental rights.
4 In her petition, mother states that the court made an order on May 20, 2019, sustaining
the petitions and ordering no reunification for the parents. As set forth in the procedural
background, the juvenile court sustained the petitions and made jurisdictional findings
and orders on January 31, 2019. The court bypassed parents for reunification services in
its May 20, 2019 dispositional orders. Mother’s petition, however, requested only a new
jurisdiction hearing.
10
However, unlike the mother in Alayah J., mother here expressly conditioned her request
that the court consider her petition on the court’s decision to terminate parental rights.
In her petition, mother specified, “If the [c]ourt is unable to find that the beneficial
relationship exception to adoptability applies and does not order guardianship, we ask the
court to consider this motion.” After the section 388 petition was filed on December 16,
2019, a discussion took place between the court, mother’s counsel, and deputy county
counsel about when the petition should be considered by the court. After the court
acknowledged the filing, mother’s counsel again specified that “we’re only asking that
[it] be considered if the [c]ourt finds that the exception to adoptability doesn’t apply.”
Counsel for respondent objected to the timeliness of the filing and the lack of sufficient
notice. The court deferred the decision until after the conclusion of the day’s testimony
of whether to delay argument and ruling on the section 366.26 matters to allow for proper
notice on the section 388 petition or, instead, whether mother wished the court move on
to argument and take the petition under submission. Father’s counsel indicated he wished
to have argument set for a later date since there had been three days of testimony. The
court then noted that mother’s petition was missing pages. Mother filed the missing
pages on December 30, 2019, to be considered at the January 2, 2020 trial date.
Testimony continued and was concluded on January 2, 2020, the fourth day of the
section 366.26 hearing. At the conclusion of mother’s counsel’s argument on the section
366.26 issues, she again asked that if the court did not find the parent-child relationship
exception to adoption applicable, that the court set the modification petition for hearing.
After the court issued its order terminating parental rights, mother’s counsel inquired if
the court was denying her a hearing or denying the petition for modification. The court
responded, “I think it’s kind of moot at this point. [¶] Would you like me to rule on it?
JV-180 [petition for modification] is denied.”
The record is clear that mother specifically conditioned her request that the court
consider the petition for modification on its decision to terminate parental rights. She
11
expressly asked the court to consider it only if it found the beneficial parental relationship
exception did not apply. Mother cannot, therefore, now be heard to complain that the
court did not consider her motion prior to deciding to terminate parental rights.
In any event, even if the court should have considered the merits of mother’s
petition prior to its decision to terminate parental rights, despite the qualification in the
petition, the petition was ultimately and properly summarily denied as it failed to make
the requisite prima facia showing. This, too, distinguishes the instant matter from
Alayah J., in which the court did not rule on the mother’s petition at all. (Alayah J.
supra, 9 Cal.App.5th at pp. 477, 480.) It also forms the basis for our rejection of
mother’s contention that her appointed counsel provided ineffective assistance by not
asking for a ruling prior to the court’s decision to terminate parental rights. Regardless of
when the requested ruling was sought, the result would have been the same. Thus, she
cannot establish it is reasonably probable a more favorable determination would have
resulted if counsel had requested the ruling earlier, which is required to obtain reversal
based on the representation of counsel. (People v. Scott (1997) 15 Cal. 4th 1188, 1211
[appellant must show counsel’s representation fell below an objective standard of
reasonableness and the deficient performance was prejudicial in that it is reasonably
probable a more favorable result would have occurred absent counsel’s failings]; People
v. Kipp (1998) 18 Cal. 4th 349, 366-367 [appellate court need not consider whether the
challenged actions were deficient if prejudice is not shown].)
Section 388, subdivision (a)(1) provides that a parent of a dependent child may
petition the juvenile court “upon grounds of change of circumstance or new evidence . . .
for a hearing to change, modify, or set aside any order of court previously made.”
Section 388 permits modification of a dependency order if a change of circumstance or
new evidence is shown and if the proposed modification is in the best interests of the
minor. (In re Kimberly F. (1997) 56 Cal. App. 4th 519, 526.) The party petitioning for
12
modification has the burden of proof by a preponderance of the evidence. (In re
Casey D. (1999) 70 Cal. App. 4th 38, 48.)
Section 388 petitions for modification are to be liberally construed in favor of
granting a hearing, requiring only a prima facie showing by the parent. (In re Marilyn H.
(1993) 5 Cal. 4th 295, 309-310.) However, if when so construed, the petition fails to
make a prima facie case both that there is new evidence/changed circumstances and that
the minors’ best interests would be served by changing the juvenile court’s order, the
court need not order a hearing. (In re Anthony W. (2001) 87 Cal. App. 4th 246, 250.) We
review the summary denial of a section 388 petition for abuse of discretion. (Ibid.; see
also In re G.B. (2014) 227 Cal. App. 4th 1147, 1158; In re S.R. (2009) 173 Cal. App. 4th
864, 870.)
Here, the new evidence or changed circumstance alleged in the petition to warrant
the requested new jurisdiction hearing was that “[p]arents have received a preliminary
report from a board-certified physician-scientist, neuropathologists who based upon a
review of [E.A.]’s MR scan images from 1/15/19” opines that E.A. has severe
porencephaly, which was likely congenital, and that her condition was likely not related
to post-natal abuse. (Italics added.) The petition was also supported by a May 9, 2011
preliminary report prepared by Dr. Patrick Barnes and based on review of sibling Ma.A.’s
May 2010 brain and skeletal imaging scans, concluding the scans strongly suggest the
presence of congenital rickets as a result of a vitamin D deficiency and suggesting the
case be reviewed by a specialist. Mother provided a history of her pregnancies, including
the medications she took, her tobacco use, and the difficulties she incurred. The petition
also attached a second declaration from attorney Kirkwood summarizing these doctor
reports and summarizing mother’s pregnancies.
As reflected above, the alleged new evidence was simply new expert opinions
based on previously available evidence—scans that were completed prior to the
jurisdiction hearing in this case. As we held in In re H.S. (2010) 188 Cal. App. 4th 103,
13
105-107, on facts almost identical to those in the instant matter, the belated opinion of an
expert based on evidence available at the jurisdiction and disposition hearings does not
constitute new evidence within the meaning of section 388. (In re H.S., supra, at p. 107.)
“ ‘ “Public policy requires that pressure be brought upon litigants to use great care in
preparing cases for trial and in ascertaining all the facts. . . .” [Citation.]’ (Kulchar v.
Kulchar (1969) 1 Cal. 3d 467, 472; see Baldwin v. Home Savings of America[ (1997)] 59
Cal.App.4th[ 1192, ]1198.) A rule that would allow the reopening of cases previously
decided, simply because a party identifies evidence that it could have presented at trial,
but did not, ‘ “would in a large measure vitiate the effects of the rules of res judicata.”
[Citation.]’ (Kulchar v. Kulchar, supra, []at p. 472.) [¶] This public policy applies even
more forcefully to dependency cases, where delay is antithetical to the primary focus of
dependency proceedings, the best interests of the child. (In re Marilyn H.[, supra,]
5 Cal.4th [at p. ]308.)” (In re H.S., supra, at p. 108.)
In response, mother argues we must, nonetheless, remand the matter to the
juvenile court to determine whether she used due diligence in obtaining the subject expert
opinions. Even if we were to conclude that the use of due diligence, but nonetheless
failure, to obtain new expert opinions based on previously available evidence is an
exception to the holding in In re H.S., which we do not so hold, remand is not required.
Here, mother requested, and the juvenile court approved, funding for an expert prior to
the jurisdiction hearing. The jurisdiction hearing was then continued for 11 months—
from February 22, 2018, to January 31, 2019. Thereafter, another 11 months passed,
during which time mother clearly “discovered” the “new” expert opinion (at the very
least by October 23, 2019, when she filed Auer’s preliminary report and Kirkwood’s
declaration with the court). Yet, no petition for modification was filed until the third day
of the section 366.26 hearing on December 16, 2019.
Finally, we reject mother’s contention that reversal is required because the
Department did not object, and the court did not deny her petition, based on her failure to
14
allege new evidence. Whether the Department’s objection that mother had been given
plenty of time to gather these expert theories constituted an objection that she had not
made a showing of new evidence is irrelevant. The burden to make a prima facie
showing of either new evidence or changed circumstances to warrant a hearing was on
mother. She did not make such a showing. And, while the court did not give all its
reasons for summarily denying mother’s petition, it did question mother’s counsel to
clarify that she had, in fact, retained the expert the court had authorized prior to the
jurisdiction hearing, that expert (who was a pediatrician, not a neurologist) reviewed the
extensive medical records, and she was not “able to get a response from him which would
support fighting it.”
In sum, mother was not entitled to a hearing on her petition because she failed to
make a prima facie showing of the existence of any new evidence or changed
circumstance to support her request for a new jurisdiction hearing. The juvenile court’s
summary denial of her petition was not error.
B. Beneficial Parental Relationship Exception
Parents also contend the juvenile court erred by failing to find the beneficial
parental relationship exception to adoption applied. We disagree.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate
parental rights absent circumstances under which it would be detrimental to the child.”
(In re Ronell A. (1996) 44 Cal. App. 4th 1352, 1368.)
There are only limited circumstances which permit the court to find a “compelling
reason for determining that termination [of parental rights] would be detrimental to the
child.” (§ 366.26, subd. (c)(1)(B).) Such circumstances include when “[t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
15
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i) [beneficial parental
relationship exception].)
To prove that the beneficial parental relationship exception applies, the parent
must show there is a significant, positive emotional attachment between the parent and
child. (In re Beatrice M. (1994) 29 Cal. App. 4th 1411, 1418-1419.) And even if there is
such a bond, the parent must prove that the parental 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 S.B. (2008) 164 Cal. App. 4th 289,
297, quoting In re Autumn H. (1994) 27 Cal. App. 4th 567, 575; accord In re Jasmine D.
(2000) 78 Cal. App. 4th 1339, 1345.) “In other words, the court balances 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, at
p. 575.) On the other hand, “ ‘[w]hen the benefits from a stable and permanent home
provided by adoption outweigh the benefits from a continued parent[-]child relationship,
the court should order adoption.’ ” (In re Jasmine D., supra, at p. 1350; see In re Autumn
H., supra, at p. 575.)
“Because 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 Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics added.)
“ ‘Adoption is the Legislature’s first choice because it gives the child the best chance at
[a full] emotional commitment from a responsible caretaker.’ ” (In re Celine R. (2003)
31 Cal. 4th 45, 53, quoting In re Jasmine D., supra, at p. 1348.) The beneficial parental
relationship exception to adoption is an exception to the general rule that the court must
16
choose adoption where possible, and it “ ‘must be considered in view of the legislative
preference for adoption when reunification efforts have failed.’ ” (In re Celine R., supra,
at p. 53.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights. (In re
C.F. (2011) 193 Cal. App. 4th 549, 553.) The factual predicate of the exception must be
supported by substantial evidence, but the juvenile court exercises its discretion in
weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal. App. 4th
614, 622; In re Bailey J. (2010) 189 Cal. App. 4th 1308, 1314-1315.)
Parents did not meet their burden here. Although they maintained regular
visitation and visitation went well, they failed to establish that the minors had such a
significant, positive emotional attachment to them that the benefit of maintaining it
outweighed the benefits the minors would obtain from adoption. (See In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) Considering, as the court must, factors such as the age
of the children, the portion of the children’s life spent in the parent’s custody, the positive
or negative effect of interaction between the parent and the children, and the children’s
particular needs (In re Zachary G. (1999) 77 Cal. App. 4th 799, 811), the juvenile court
did not err in determining the beneficial parental relationship exception to adoption does
not apply.
By the time of the section 366.26 orders, the minors, who were detained at ages
one and two, had been out of parental custody for almost two years. Their visits with
parents had been positive but the minors were unaffected by visits being reduced from
several two-hour visits a week to one hour per month and had not asked about visits after
visitation was reduced. M.A. looked to parents for comfort during visits but otherwise
looked to his caretakers, to whom he referred to as “mom and dad,” for comfort.
Although Eshelman would have expected the minors to show “big overtures of affection
upon greeting or distress upon departing,” this did not take place. M.A. enjoyed parents’
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company but was not as “enthusiastic” with parents as Eshelman would have expected of
a child who is attached, and neither child had trouble separating from parents at the end
of visits. Additionally, while both young minors are in need of permanency, E.A.’s
severe disabilities, special needs, and many medical and developmental appointments
make her in particular need of the full commitment of her caretakers.
Father relies heavily on the testimony of Eshelman in arguing they met their
burden to establish the benefits from a continued parent-child relationship outweighed the
benefits of adoption in this case. Eshelman testified that children are either attached, or
not attached, and that these minors were attached to parents. Father argues that this is
“one of those ‘rare cases’ when the juvenile court failed to recognize the benefit of
maintaining [the parents-child relationship],” but Eshelman did not testify that this is a
rare case. To the contrary, she testified that an attached child is always irreparably and
forever harmed by being put in “a toxic stress state that doesn’t calm down,” if parental
rights are terminated. She believed, contrary to the Legislature’s mandate, that adoption
should not be the preferred plan because the detriment of losing contact with the
biological parents always outweighs the benefits of permanency. The only exception she
referenced was when the parents abused the child.
Even assuming the juvenile court was free to reject the Legislature’s mandate that
adoption is the preferred plan and controlling caselaw requiring the court consider certain
factors when determining whether the benefits of maintaining a relationship with
biological parents outweighs the benefits of adoption, it was free to reject Eshelman’s
theories, as well. An expert opinion is not binding on the court. The court, as trier of
fact, may reject even uncontradicted testimony from an expert witness, as long as it does
not act arbitrarily. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.) Here,
the court expressly considered Eshelman’s testimony and theories, and rejected her
theories as novel and untested. It also found that, considering the facts of this case, it was
very clear that adoption was in the minors’ best interests. Additionally, the court found
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the instant case falls within the single exception Eshelman identified to her belief that
preserving parental rights is always preferential to adoption—cases of abusive parents.
Although Eshelman considered parents’ denials of abuse to be “compelling” and
preferred to think of the parents’ actions as “medical neglect,” the court had previously
found, and unequivocally believed based on the evidence, that both E.A. and her sibling,
Ma.A., had been abused, and both had been severely injured at the age of three months.
The juvenile court also found it inexcusable and extraordinarily negligent that neither
parent brought E.A. to get medical assistance for a year when something was very clearly
wrong with her.
In sum, parents did not establish this to be “an extraordinary case” that
preservation of parental rights must prevail over the Legislature’s preference for adoptive
placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
III. DISPOSITION
The orders of the juvenile court are affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
HOCH, J.
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