In re E.F. CA4/1 ( 2020 )

Filed 11/20/20 In re E.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 E.F., a Person Coming Under
the Juvenile Court Law.
D077339
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15343A)
Plaintiff and Respondent,
v.
Michelle F.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael J. Imhoff, Commissioner. Reversed.
Suzanne Davidson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Joanne Willis Newton, under appointment by the Court of Appeal, for
the minor, E.F.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Patrice Plattner-Grainger, Senior Deputy County
Counsel, for Plaintiff and Respondent.
Michelle F. (Mother) appeals from a judgment of the juvenile court
terminating her parental rights to her adopted daughter, E.F. Mother
asserts the juvenile court erred by refusing to require E.F. to testify at the
Welfare and Institutions Code1 section 366.26 hearing and by terminating
her parental rights. She asserts that there was not a reasonable likelihood
that E.F. would be adopted and that the beneficial parent-child relationship
exception set forth in section 366.26, subdivision (c)(1)(B)(i), precluded the
termination of her parental rights. We find no error in the juvenile court’s
refusal to require E.F. to testify or to apply the beneficial parent-child
relationship exception.
With respect to the adoptability finding, the juvenile court found that
E.F. was specifically adoptable based on the likelihood that the foster family
that she was living with at the time of the hearing would adopt her.
However, while the present appeal was pending, the parties informed this
court that E.F. has been moved out of that placement and is now residing in a
residential facility. In light of that development, the San Diego Health and
Human Services Agency (the Agency) concedes that the matter should be
remanded to the juvenile court for a new assessment report and section
366.26 hearing. We agree and therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
E.F. was first placed into protective custody in January 2011, when she
was one year old, due to domestic violence between her biological mother and
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2
father. After spending several months in each of two foster homes, E.F. was
placed with Mother and Mother’s husband (Father) on December 15, 2011.
Events Leading to the Juvenile Dependency Petition
Mother had three other children whom she had adopted out of foster
care, and the Agency received several reports raising concerns about
emotional abuse and neglect of those children while E.F. was in Mother’s
care. Despite these ongoing concerns, Mother and Father adopted E.F. in
July 2013, following the termination of the parental rights of her biological
parents.
In November 2013, Father was arrested for possession of child
pornography.2 After Father’s arrest, Mother became highly agitated and
dysregulated and the Agency received a report indicating that all of the
children, including E.F., were at risk of emotional abuse and neglect. Mother
screamed at the children in front of E.F.’s therapist and told E.F. that Mother
was going to move to Utah without the children. She also displayed explosive
and verbally abusive behavior at the children’s school.
In June 2014, the state revoked Mother’s foster parent license based on
the charges against Father and several substantiated reports against Mother.
Among other issues, the reports indicated that Mother was hostile and
disruptive in a court proceeding, demonstrated bizarre behavior with
community resource personnel, made disparaging remarks about the children
in their presence, and broke a child’s school project in front of the child at
school.
The Agency continued to receive reports questioning Mother’s ability to
care for the children, and specifically E.F., throughout 2016 and 2017. One
2 Father passed away prior to the section 366.26 hearing from which
Mother now appeals and his rights are not at issue in this case. He is
discussed only to the extent relevant to Mother’s case.
3
report indicated that Mother hit E.F. and pulled on her hair and ears, and
that Mother had said that she knew the system and knew how not to leave
marks. Another report indicated that Mother made E.F. sleep under the
stairs and made E.F. go outside in the cold wearing only a diaper when she
wet the bed.
In September 2016, Mother brought E.F. into the school office and
stated that she was planning to take E.F. to the hospital because E.F. had
tried to push her sister down the stairs. Mother stated that she did not want
E.F. anymore. She then left with E.F. but called the school shortly thereafter
and said that E.F. was “flipping out.” The staff convinced Mother to return
and noted that E.F. was sitting in the car calmly when she and Mother
arrived. Mother stated that E.F. was a danger to herself or others and left
again, but then called the school and said that she was bringing E.F. back.
The school told Mother that E.F. could not return to school given Mother’s
statements and that Mother should take E.F. to the hospital if she felt that
E.F. posed a danger to herself or others. Mother returned, left E.F. in the
school office, and drove off, but then came back to retrieve E.F. a few minutes
later, after the school staff informed her that leaving E.F. at the school would
be considered abandonment. In addition, the school indicated that Mother
was not cooperative in addressing E.F.’s mental health issues and that
Mother had a pattern of removing or interfering with E.F.’s support system
whenever E.F. began to make progress.
The following April, Mother called the police and reported that E.F. had
run away. Upon investigation, it was determined that E.F. was upset that
Mother did not get her an ice cream and had said that she would run away.
Mother grabbed E.F. by the hair and legs and pushed her out the front door.
When the police arrived, Mother had two sleeping pills in her hand and
4
stated that she intended to give one to E.F. However, the pills were not
prescribed to E.F. The police detained Mother and transported her to the
emergency room for a mental evaluation. Mother was placed on a section
5150 hold and an alternate caregiver stayed with the children.
On July 25, 2017, the Agency received a report that Mother had called
a crisis line and stated that E.F. had threatened to kill herself, that she felt
unsafe in the home with E.F., and that she had locked E.F. in her room for
everyone’s safety. Mother refused to call law enforcement and said that she
would just call Child Welfare Services and ask them to come take E.F. On
July 28, an Agency representative spoke with the team at a crisis center. The
crisis center personnel reported that Mother had asked them to take E.F. and
had said that she was extremely overwhelmed and did not want E.F. in her
home any longer. Mother told the crisis team that E.F. was sleeping, that
she had locked E.F. up, and that she had given E.F. extra medication that
was not supposed to be given until the evening. A member of the response
team was able to speak to E.F. E.F. stated that she did not want to “be in the
room anymore or wake up again in the lock up room.” Mother said that the
lock up room was for the safety of everyone else in the home, but when the
crisis workers suggested that Mother call 9-1-1, she refused.
A couple of weeks later, the Agency received another report that E.F.
had attacked Mother with a knife and a pair of scissors and Mother said that
she would not call the crisis line or law enforcement because “they will not do
anything.” In addition, the reporter indicated that Mother said that she had
been locking E.F. in the “quiet room” since May, and that Mother had stated
that E.F. manipulated her to get out by saying that she was thirsty or had to
use the restroom.
5
An Agency social worker spoke with E.F. in the home on July 31. E.F.
stated there was nothing that she did not like about living in the home.
When asked what happens when she gets into trouble, E.F. said that she goes
to the quiet room. She said that she stays in the quiet room for 16 minutes
and that she does not fall asleep in the quiet room because she is too scared.
The social worker spoke with E.F. again at school on August 23. E.F.
immediately asked whether she was going to “adoptions” or “foster homes.”
She said she wanted to go to the hospital to get better so Mother would not
get mad at her. She also said that she wanted more attention and that she
wished she was disabled like her siblings so that she could get a lot of
attention like them.
The Agency social worker also spoke with a neighbor, who indicated
that Mother frequently yelled at E.F. The neighbor said that she heard E.F.
ask Mother whether Mother would want her if she went to the hospital to get
better, and heard Mother respond that “she would not want her and she has
been trying to get rid of her and has been asking for her to be taken away or
for her to be put in a hospital.” The neighbor also heard Mother tell E.F. that
she did not like her and would not miss her, and that they did not have any
good memories together.
The Juvenile Dependency Petition
On August 24, 2017, the Agency filed a juvenile dependency petition on
behalf of E.F. Father’s whereabouts were unknown at time of detention, but
he was subsequently located in federal custody.
In a Detention Report dated August 25, 2017, the Agency noted that
E.F.’s doctor, therapist, and psychiatrist had each indicated that Mother
appeared to be a primary cause of E.F.’s declining behavior. E.F.’s primary
care physician indicated that Mother was not very nurturing or loving, that
6
she was instead abrasive and threatening, and that she had no real sense of
how to calm E.F. down. He reported that E.F. did not act out in his presence.
E.F. had been diagnosed with encopresis and enuresis3 and, although
E.F. was nearly eight years old, Mother continued to put her in diapers.
E.F.’s physician believed that E.F.’s toileting issues were psychological. He
did not think that E.F. was mentally ill but said that Mother seemed to want
to believe that she was, and that E.F. was convinced that she was mentally ill
because of Mother’s actions. He explained that E.F. did have some
attachment issues, but that those issues could not be addressed when E.F.
could not attach to Mother.
E.F.’s therapist said that Mother claimed that E.F. was violent and
that E.F. had attacked her with knives or scissors, but Mother refused to call
the police or discuss a safety plan. The therapist indicated that E.F. was
calm during their sessions but that Mother often appeared to be upset,
overwhelmed, and angry. She said that Mother wanted her to write a letter
recommending that E.F. be hospitalized or placed in residential care and was
upset that she refused.
E.F.’s psychiatrist, Dr. Chou, indicated that E.F. had Reactive
Attachment Disorder (RAD) and said that Mother had difficulties trying to
cope with her. He said that E.F. was extremely anxious and felt insecure in
her relationship with Mother. He had written a letter recommending that
E.F. be placed in a residential program or psychiatric hospital and said that
he had done so because the situation in the home was so volatile and he
believed that Mother needed an opportunity to stabilize herself. He further
indicated that Mother regularly told E.F. that she did not love her, and that
3 Enuresis and encopresis are conditions characterized by involuntary
urination and defecation, respectively.
7
it was not safe or healthy for E.F. to continue to hear that. However, once Dr.
Chou learned that the Agency was considering court intervention, he
indicated that he did not think E.F. should be sent to another foster home,
given her history with RAD. He subsequently submitted a second letter in
which he recommended that E.F. remain with Mother, with continued
intensive family therapy.
Another therapist who worked with the family, Dr. Hershey, indicted
that he was aware that Mother had a “quiet room” and that he had seen
photographs of it. He explained that a “quiet room” was supposed to be a safe
space where an over-stimulated child could be “brought down”, with parental
supervision. He further indicated that the room Mother used was located in
a space under the stairs and was approximately 9 feet by 5 feet. He said that
he recommended that Mother leave E.F. in the room for 25 to 30 minutes,
because that is how long it takes the body to “regulate down”, but he did not
think that Mother had left E.F. in the room for more than a “handful” of
minutes. He believed that the door did not have a lock but thought that it
should have one, so that Mother would not have to stand next to the door to
ensure that E.F. did not leave. He denied any knowledge of Mother making
inappropriate comments to E.F.
Staff members at E.F.’s school indicated that E.F. was not displaying
the behaviors that Mother had reported to the school, and that E.F. did not
wear diapers at school. The school health clerk indicated that E.F. had only
one toileting accident in the previous eight months, and that she believed
that accident had occurred on the way home because E.F. was dry when she
left school. She also said that Mother would scold E.F. in front of the school
staff and other students and that E.F. did not like to be embarrassed in that
way. Another staff member told the Agency that Mother had shown her a
8
video in which she and another caregiver were barricading E.F. with their
bodies and trying to force E.F. into the room under the stairs. She said that
E.F. had tried to walk away but Mother and the caregiver would not let her
go.
A caregiver who occasionally stayed in the home with the children
while Mother was away reported that she was aware that Mother put diapers
on E.F. but said that she did not know why. She said that E.F. did not have
accidents or need help with the restroom.
Initial Removal from Mother
On August 25, 2017, the juvenile court found that the Agency had made
a prima facie showing on the petition and detained E.F. The court granted
Mother liberal supervised visitation.
E.F. was placed at Polinsky Children’s Center (PCC). The staff at PCC
did not notice any of the behaviors that Mother had reported. In a letter
submitted to the Agency on August 28, 2017, E.F.’s physician indicated that
the past few years had been “very turbulent” and reiterated that he believed
that Mother was contributing to E.F.’s worsening behavior. He said,
“[M]other appears to have an interest [in] seeing [E.F.] as mentally fragile
and having psychiatric diagnoses. I have not seen such behavior in the office
and such behaviors did not happen at school to any great degree.” He further
indicated that Mother had shown him videos of E.F. exhibiting problematic
behaviors while at home and that, “[a] common theme in these videos is the
very high anxiety, tension and yelling and negative parenting and
approaches that persist through the altercations.”
Dr. Chou submitted a letter to the juvenile court in September 2017.
He said that E.F. was struggling with RAD and that additional transitions
between caregivers would likely worsen the condition. He further stated that
9
E.F. would be best served by living with Mother and receiving frequent
attachment focused therapy so that they could work on improving their
relationship. He said that Mother had been consistent with their
appointments and that he believed she was dedicated and motivated to
obtain the best care for E.F. Mother also submitted a letter to the juvenile
court in which she indicated that E.F. was acting out as a result of RAD.
Mother continued to request that E.F. be placed in a residential setting,
and not in a foster home. She admitted to the Agency that she would put
E.F. in the “quiet room” or “go to room”, but that she had done so only with
the approval of Dr. Chou and Dr. Hershey. She said that the room did not
have a lock but that she would lean against the door so that E.F. could not
get out until she calmed down. Mother denied telling E.F. that she did not
want her but said that E.F. often said she did not want to be sent back or
separated from the family.
During a social history interview in September 2017, Mother told the
Agency social worker that she had been diagnosed with anxiety in 2008 and
depression in 2013. When asked about therapy, Mother stated that she saw
Dr. Chou and Dr. Hershey, as well as a psychiatrist. She stated that she had
read books on parenting a child with RAD and had signed up for an online
course about RAD. When asked why E.F. was involved with the Agency,
Mother said that it was because a “ticked off caregiver” who could not handle
E.F.’s behaviors had reported that Mother emotionally abused E.F. When
asked what she needed to do to make it safe for E.F. to return to the family
home, Mother said that she needed to “continue to do what I’m doing.
Probably work with Dr. [Hershey] more and Dr. Chou more.” She also stated
that she should give E.F. attention when she feels that she needs it and hug
10
her instead of using the “go to room.” The Agency opined that Mother did not
have insight into her own behavior or the impact that it had on the children.
E.F. continued to do well in school and the school principal reported
that she did not have any behavioral issues. The principal stated, “the child
that we see at school is not the child that the parent sees at home.” She
explained that she had been a principal for 25 years and described Mother’s
behavior as “pretty extreme.” The principal also raised a concern that E.F.
was overmedicated and said that she was “like a little zombie” at school. The
vice principal reported that Mother was coming into the school office nearly
every day, often angry, and that Mother had sent her approximately 173
“rambling e-mails that don’t make sense” between April 2016 and October
2017. Mother also called the Agency social worker frequently, as often as five
times per day, to complain.
First Foster Family Placement4
By October 10, 2017, E.F. was living in a confidential licensed foster
home. The Agency reported that she was doing well in the placement, had no
behavioral concerns, and was having fewer toileting accidents.
E.F. had regular visits with Mother and her siblings. In a jurisdiction
and disposition report dated October 10, 2017, an Agency social worker noted
that E.F. was sometimes resistant to seeing Mother but would set aside her
feelings toward Mother in order to see her siblings. The Agency noted that
there were some strengths in E.F.’s relationship with Mother, including
moments in which Mother and E.F. showed affection toward one another, but
4 The record indicates E.F. has had a total of 13 placements. This
includes placements before Mother adopted E.F. and the times that E.F. was
placed at PCC between foster families. For clarity and to maintain
confidentiality, we refer to the placements during this case sequentially,
starting with the “first foster family placement”.
11
that there were also several areas of concern. Mother was overbearing and
anxious and tended to project her feelings onto E.F. For example, Mother
would remind E.F. of her fears instead of comforting her or encouraging her
to overcome them. Mother also fixated on E.F.’s homework and told E.F. that
she was going to fail her classes. This caused E.F. great stress, but Mother
did not seem to notice.
In an addendum report dated October 19, the Agency reported that
E.F. had begun wetting herself on the way to and from school but noted that
she was not having accidents at school or in the foster home. The school
office staff indicated that E.F. was spending approximately three to four
hours on the bus each day and that she had expressed a desire to use the
bathroom during the commute.
E.F. started attending a school closer to her foster home shortly
thereafter, and did not have any toileting accidents between late October and
early December. In a report dated December 4, 2017, E.F.’s therapist noted
that E.F. had previously been diagnosed with RAD and enuresis and
encopresis but indicated that she did not believe that E.F. currently met the
criteria for those diagnoses.
Contested Jurisdiction and Disposition Hearing
The juvenile court held a contested jurisdiction and disposition hearing
on January 10, 2018.
In an addendum report submitted that day, the Agency indicated that
Mother was trying to change her behavior and her interactions with E.F. so
that they were more positive. E.F.’s foster parent reported some behavioral
concerns but indicated that they were not as severe as what Mother had
previously reported. Father returned to the family home in December 2017
and the foster parent indicated that E.F.’s problematic behaviors increased
12
after she had contact with Father. The Agency further reported that E.F.
was undergoing a medication evaluation. Her psychiatrist said that she was
on a large number of medications for her age and that it would be ideal to
take her off of any that she did not need.
The juvenile court made true findings and sustained the petition. The
court ordered a “transition plan” for Mother. Under the plan, Mother was to
begin having short, unsupervised community visits with E.F. The court
granted the Agency discretion, with the concurrence of minor’s counsel, to
increase the number of visits and to permit overnights and an extended 60-
day visit.
Extended Home Visit with Mother
The Agency approved an extended overnight visit in the family home in
March 2018, during E.F.’s spring break. During the visit, E.F.’s foster parent
had a family emergency that required him to remain out of state for an
extended period of time. Rather than place E.F. in a new foster home, the
Agency approved an emergency trial home visit with Mother.
On June 6, Mother reported that E.F. was having a tantrum in the car
that created an unsafe situation. Mother called law enforcement and drove
E.F. to Mother’s therapist’s office but was eventually able to calm E.F. down.
Mother’s therapist reported that the incident started because E.F. wanted a
pastry during a car ride and Mother refused, despite knowing that hunger
and car rides were two of E.F.’s triggers. The therapist indicated that Mother
had reported that E.F. was binge eating and food hoarding, that the therapist
had told Mother that those behaviors were coping techniques for anxiety, and
that Mother had expressed irritation and anger rather than concern for E.F.’s
well-being. E.F. was also having increased incidents of enuresis and Mother
13
similarly expressed anger and frustration and did not demonstrate any
insight into how the enuresis was related to E.F.’s increased anxiety.
On June 7, 2018, Mother took E.F. to a behavioral health center and
reported that E.F. was having an uncontrollable tantrum. The center noted
that E.F. was calm and refused to admit her.
On June 20, Mother called law enforcement in response to another
tantrum. Law enforcement officers took E.F. to the Rady Children’s hospital
for an evaluation. E.F. was released early the next morning after the
hospital determined that she was not a danger to herself or others. A
member of the PERT team that responded to the incident later told the
Agency that Mother was “very emotionally dysregulated” and did not appear
to be concerned about E.F.’s safety. The individual said that E.F. was “really
shut down” around Mother but became more talkative in the patrol car, away
from Mother.
Second Removal from Mother’s Care
On July 9, 2018, the Agency filed a section 387 petition seeking to
remove E.F. from Mother’s care. The petition alleged that Mother’s mental
health had deteriorated, and that Mother had admitted that she was not
equipped to meet E.F.’s special needs. Mother continued to insist that E.F.
required residential treatment but the Agency noted that E.F.’s foster parent
had not witnessed any of the behaviors that Mother had reported.
In a status report dated July 10, 2018, the Agency reported that E.F.’s
negative behaviors, including hitting, kicking, biting, and making statements
of self-harm had increased dramatically over the preceding 30-day period.
The Agency opined that the situation was detrimental to E.F., that Mother
had not gained any insight as to how her actions played a role in E.F.’s
14
negative behaviors, and that in-home services were not sufficient to address
the situation.
The Agency reported that E.F. had been participating in therapy but
that she had attended only three sessions in the 60-day period that she had
been in Mother’s care. In the discharge summary, the therapist noted that
E.F. had expressed a desire to continue with therapy but that Mother
continued to make strong statements indicating that E.F. would not return.
E.F. indicated that she had felt more anger after starting the trial visit with
Mother and that the family dynamics prompted and escalated her outbursts.
The therapist noted that E.F.’s body language had “withered” over the course
of her three sessions with E.F. after the trial visit began and stated that E.F.
had slumped shoulders, made little eye contact, and did not appear as
emotionally strong or confident as she had previously. When asked to
identify the safe people in her life, E.F identified her foster parent and the
therapist but struggled to identify anyone else and declined to identify
Mother as a safe person when the therapist offered that suggestion. The
therapist ultimately concluded that E.F. suffered from psychological abuse
and neglect.
The therapist indicated that E.F. had difficulty discussing her past
experiences but did incorporate them into therapeutic play. E.F. had several
incidents of enuresis during therapeutic play, often tied to heightened
anxiety. The therapist diagnosed E.F. with enuresis but noted that the cause
appeared to be emotional and not physiological.
E.F. had transitioned to a new therapist but had completed only two
sessions by the time of the Agency’s July 10 status report. Nevertheless, the
new therapist also expressed concerns over Mother’s behaviors.
15
Second Foster Family Placement
The juvenile court granted the petition, removed E.F. from the family
home, and granted Mother supervised visitation. E.F. was placed in a new
foster home on July 12, 2018, but the foster family requested that E.F. be
moved shortly thereafter, on July 26. Their stated concerns included
difficulty getting E.F. to therapy appointments and school, enuresis, and
behavioral issues including lying and arguing with another child in the home.
E.F. underwent a psychological evaluation in late July. The evaluator
ruled out RAD but stated that if E.F. did have RAD, Mother’s behaviors
“would certainly exacerbate the condition as they would be detrimental to
attachment.”
Third Foster Family Placement
E.F. was placed with another foster family on August 21, 2018.
A Foster Family Agency (FFA) social worker observed a visit between
Mother and E.F. on September 6, 2018. The social worker indicated that E.F.
became anxious and “elevated” as soon as Mother arrived. Mother asked E.F.
whether she was going to live with the foster family permanently and had to
be reminded not to discuss the case with her. Mother also brought E.F. gifts,
in violation of the rules, but then told E.F. that she could not take the gifts
with her because she was not going home with Mother. The social worker
indicated that there were frequent and escalating power struggles between
Mother and E.F. throughout the visit. Mother was permitted to call E.F. on
the phone twice a week, but E.F. was reluctant to speak with Mother and
often made excuses so as not to have to talk to her.
In mid-September, the Agency reported that E.F. was stabilizing in her
most recent foster placement. Her enuresis had decreased, and her anxiety
medication had been significantly reduced. The caregivers indicated that
16
they were open to adopting E.F. and were committed to meeting her needs.
They also said that E.F. did not want to attend visits with her family, often
had meltdowns before the visits, and regressed or became defiant after visits
with Mother. In October, the caregivers noted that E.F.’s behaviors were
cyclical based on visits. She would have meltdowns and wet herself for
several days after visits and then would be happy and positive and would go
several days without an accident before the next visit.
On October 21, 2018, the foster parents reported that E.F. had a
difficult weekend after meeting with her attorney regarding an upcoming
hearing, and that E.F. had hit their other child in the face with a hard plastic
toy during a tantrum.
In an addendum report dated October 22, 2018, the Agency raised
additional concerns regarding Mother’s behavior at visits. The visitation
monitor reported that Mother continued to assist E.F. with wiping after E.F.
used the restroom. E.F.’s older siblings needed help with toileting due to
their disabilities and, although E.F. did not, Mother stated that she needed to
treat all of her children the same in the name of “fairness.” The Agency noted
that Mother’s insistence in doing so was hampering E.F.’s development, and
that E.F. was not fully toilet trained, despite being physically and
developmentally able. The visitation monitor also noted that Mother would
rock E.F. while holding her like a baby, and the caregivers noted that E.F.
would often talk in baby talk after visits.
The Agency further reported that E.F. refused two visits with Mother
at the end of October and that Mother expressed frustration that the Agency
was allowing E.F. to make decisions about her attendance at visits.
17
The juvenile court held a 12-month review hearing on November 5,
2018. The court found that Mother had made minimal progress and that it
was not likely that E.F. would be returned home by the next review hearing.
Change in Placement and Termination of Reunification Services
That December, the third foster family asked the Agency to remove
E.F. due to her behaviors and she was returned to PCC on December 24,
2018. Although E.F. had refused to attend a number of visits with Mother
prior to the placement change, she did visit with Mother while at PCC. On
January 25, 2019, E.F. told the Agency social worker that she did not want to
be adopted again and that she would live with Mother if she had the choice.
In January and February of 2019, the Agency received reports alleging
general neglect of E.F.’s older siblings by Mother. Around the same time,
Mother underwent a neuropsychological evaluation. The examiner concluded
that Mother was suffering from a cognitive disorder and personality change
due to a traumatic brain injury that occurred when she was a teenager. The
evaluator opined that it was unlikely that additional treatments or services
would be effective in changing Mother’s behaviors or resolving the difficulties
between Mother and E.F. The Agency acknowledged that Mother’s behaviors
made more sense in light of the evaluation, but also noted that the behaviors
were nevertheless emotionally damaging to E.F. Based on these issues and
Mother’s demonstrated lack of progress since E.F.’s removal, the Agency
recommended that the juvenile court terminate services for Mother and
concluded that there was not a substantial probability that E.F. could safely
return to Mother’s care.
Fourth Foster Placement
18
E.F. was placed in a new foster home on February 25, 2019. In April,
the Agency reported that she was doing well in the placement, with the
exception of some stealing, lying, and food-based issues.
On April 5, 2019, the juvenile court terminated family reunification
services. Mother continued to have visits with E.F. During the visits,
Mother attempted to manipulate E.F. by bringing personal items but telling
E.F. that she could not have them at the new foster home.
In July, the caregivers reported that E.F. was having encopretic
accidents surrounding visits with mother. They reported that E.F. would
play with her feces and that she had also rubbed her feces on the couch and
encouraged the family dog to roll in her feces. E.F. typically had two to three
accidents per week but had only one accident during weeks that she did not
have a visit with Mother. E.F.’s physician opined that the visits with Mother
were rekindling distress and preventing E.F. from progressing with her
therapy. The caregivers indicated that they were interested in adopting E.F.
but expressed concerns about E.F.’s behaviors following visits with Mother.
Around the same time, E.F. began to decline to attend visits with
Mother. Her caretakers indicated that she would have an accident each time
a social worker contacted her about a visit with Mother. They further
reported that E.F. would say, “I refuse to listen to my body” and “Why didn’t
my mom teach me how to be potty trained?” E.F. said that she missed
Mother but was scared to see her because of the past abuse and the fact that
seeing Mother made her soil herself.
On August 24, 2019, the caregivers notified the Agency that they could
no longer care for E.F. They said that they cared for her but that the ongoing
encopresis and enuresis was a concern for the household. They agreed to
keep E.F. in their home until the Agency found a new placement but reported
19
that E.F. continued to decline and that E.F. had an encopresis episode each
time a social worker contacted her about having a visit with Mother.
Fifth Foster Family Placement and Request to Suspend Visitation with
Mother
The Agency found another potential placement for E.F. in September
2019. At the Agency’s request and pending the filing of a formal section 388
petition, the juvenile court suspended Mother’s visits with E.F. to give the
new placement the maximum chance for viability.
The Agency filed its section 388 petition requesting termination of
Mother’s visits with E.F. shortly thereafter, on October 11. The Agency
explained that E.F. had been refusing visits with Mother for some time and
that the previous visits had negatively impacted her progress. Mother was
overbearing, made disparaging remarks to E.F., and spoke to E.F. about the
case in an inappropriate manner. As a result, E.F. returned from visits in a
confused state. She would mutter words and refuse to make eye contact, and
had increased stomach aches and encopretic accidents. Several foster
placements had noted E.F.’s regressions after visits.
On October 18, 2019, E.F. was placed with her fifth foster family since
her original removal from Mother’s care. She had not had contact with
Mother since June. The juvenile court granted the Agency’s request to
suspend visits with Mother on October 21, but set the matter for a contested
hearing together with the section 366.26 hearing. E.F. continued to struggle
with encopresis and enuresis but she appeared happy in the placement and
her problematic behaviors decreased. The caregivers had previous experience
with children with encopresis, wanted to adopt E.F., and stated, “This feels
like it is the perfect match.” In an addendum report dated November 21,
2019, the Agency recommended that the juvenile court terminate Mother’s
parental rights to free E.F. for adoption.
20
On November 27, 2019, E.F. called Mother several times and left a
voice message. She said that she missed Mother and did not want Mother to
leave her. She later told the social worker that she missed Mother, but that
Mother made her “worse.” When the social worker asked what E.F. meant,
she said, “I don’t want to talk about it. I’ll talk when I’m ready.” E.F.’s
therapist indicated that holidays tend to trigger emotions in foster children
and that it was common for them to miss parents they had been removed
from during that time. Mother filed a request for renewed contact with E.F.
based on the calls.
Termination of Mother’s Parental Rights
In an addendum report dated January 17, 2020, the Agency reported
that the allegations of emotional abuse and general neglect by Mother toward
E.F.’s adoptive siblings had been substantiated and that the older children
had been removed from Mother’s care. E.F. continued to state that she
wanted to be adopted by her foster family and the foster family remained
committed to adopting her. The Agency continued to recommend that the
juvenile court terminate Mother’s parental rights so that E.F. could be
adopted.
The juvenile court held a section 366.26 hearing on January 27, 2020.
Mother requested that E.F. testify and the Agency objected. The Agency
submitted a report from E.F.’s therapist indicating that E.F. became
dysregulated and had tantrums that included crying and yelling anytime
that court was mentioned. In addition, the stress caused E.F. to regress and
display increased episodes of enuresis and encopresis. The Agency also
submitted a letter from E.F.’s pediatrician in which he indicated that even
the thought of having to appear in court was triggering regression in E.F.’s
behavior and that requiring her to appear in court would result in additional
21
trauma to her. He therefore strongly opposed requiring E.F. to appear in
court in any capacity. The court denied Mother’s request to have E.F. testify.
At the conclusion of the hearing, the juvenile court found that E.F. was
specifically adoptable and that neither the sibling nor the beneficial parent-
child relationship exception applied. The court therefore terminated
Mother’s parental rights.
Mother appeals.
DISCUSSION
I. The Juvenile Court Did Not Abuse its Discretion by Denying Mother’s
Request That E.F. Testify
The juvenile court is obliged to consider the wishes of the child at a
section 366.26 hearing and a parent’s right to call or cross-examine witnesses
generally includes a right to call the minor child to testify. (See In re Jennifer
J. (1992) 8 Cal.App.4th 1080, 1085-1086 (Jennifer J.); § 366.26, subds. (h)(1),
(2).) However, the juvenile court may allow the minor to testify in chambers,
outside the presence of the minor’s parent or parents, and may decline to
compel the testimony of the minor altogether if there is evidence that
testifying will cause the minor psychological harm. (§ 366.26, subd. (h)(3)(A);
Jennifer J., supra, at pp. 1086, 1088-1089; In re Daniela G. (2018) 23
Cal.App.5th 1083, 1086 (Daniela G.).) When considering whether to require
a minor to testify, the court must carefully weigh the necessity of the
testimony against the potential harm to the child, and should consider: (1)
whether the desires and wishes of the minor can be presented absent live
testimony; (2) whether the minor’s testimony is material to the issues to be
resolved; and (3) whether the minor would be psychologically damaged by
testifying. (Jennifer J., supra, at p. 1089.)
We review the juvenile court’s decision to exclude a minor’s testimony
based on the potential for psychological harm for an abuse of discretion and
22
review any challenges to the factual findings underlying the juvenile court’s
ruling for substantial evidence. (Daniela G., supra, 23 Cal.App.5th at p.
1090; Jennifer J., supra, 8 Cal.App.4th at pp. 1086, 1088.)
The juvenile court concluded that any potential benefit from requiring
E.F. to testify would be outweighed by the harm that it would cause her. The
Agency included E.F.’s statements of her wishes and desires in their reports
and E.F.’s statements had been largely consistent throughout the pendency of
the case. The court noted that it had reviewed the reports containing E.F.’s
statements and was very familiar with the case. Thus, any benefit from
requiring E.F. to testify would be marginal. Further, the court found that
requiring E.F. to testify, even in chambers, would be detrimental to her
because she suffered from post-traumatic stress disorder (PTSD) and there
was evidence that the court proceedings were a trigger for her. The court
therefore denied Mother’s request to require E.F. to testify. We find no abuse
of discretion in the juvenile court’s ruling.
As in Jennifer J., the crucial issue in this case was whether continued
contact with Mother would be beneficial or detrimental to E.F. (See Jennifer
J., supra, 8 Cal.App.4th at p. 1087-1088.) E.F. had a long history of well-
documented adverse reactions to Mother, and several doctors and therapists
agreed that her interactions with Mother were causing her continued
psychological and emotional harm. Although there was some indication that
E.F.’s behaviors were related to RAD, the experts agreed that, at the very
least, Mother’s behavior exacerbated whatever attachment issues E.F. may
have had. More recently, E.F. had displayed similar adverse reactions to
mere discussions regarding contact with Mother or the associated court
proceedings and began to have tantrums and an increase in incidents of
enuresis and encopresis whenever those topics were raised.
23
By contrast, there was little the court stood to learn from E.F.’s live
testimony. E.F.’s negative interactions with Mother were well-documented
and, having presided over the case for years, the juvenile court was well
aware of E.F.’s various statements regarding Mother. E.F sometimes
vacillated in her desire to see Mother but had consistently refused visits with
Mother for several months prior to the section 366.26 hearing. On two
separate occasions, E.F. told the social worker that she missed Mother, but
that she was scared to see Mother because the visits made her soil herself or
made her “worse.” E.F. resisted further discussion of the issue and often had
a negative reaction to the social worker’s inquiries concerning Mother. There
was no reason to believe that E.F. would have provided any additional
relevant testimony if the court had compelled her to testify.
Mother concedes that there was evidence that E.F. would experience
“some level of trauma” if she were required to testify, but asserts that any
harm would be temporary and was outweighed by Mother’s due process right
to present her case. To the contrary, E.F.’s behaviors had been reoccurring
for years and were indicative of deep-seated stress and trauma. At least two
experts indicated that requiring E.F. to participate in the court proceedings
would further traumatize her. (See In re Jennifer J., supra, 8 Cal.App.4th at
p. 1085.)
Mother asserts that the juvenile court improperly relied on the
Agency’s reports as evidence of E.F.’s wishes and desires, and that E.F.’s calls
to her on November 27, shortly before the section 366.26 hearing, were
inconsistent with the Agency’s conclusions. To the contrary, E.F.’s statement
to the social worker regarding the calls—that she missed Mother but that
Mother made her “worse”—was entirely consistent with her previous
statements. Moreover, E.F.’s therapist indicated that it was typical for foster
24
children to miss their former parents during the holidays. Thus, it is not
surprising that E.F. sometimes missed Mother, and the fact that she did does
not undermine her other statements. Regardless, the juvenile court was
aware of the calls and E.F.’s statements, and there is no indication that E.F.
would have said anything different if the court had required her to testify.
Like the court in Jennifer J., the juvenile court in this case properly
weighed the evidence indicating that E.F. would suffer psychological damage
if required to testify against the low probability that her testimony would be
beneficial to resolving any material issue, and appropriately declined
Mother’s request to require E.F. to testify at the hearing. (See Jennifer J.,
supra, 8 Cal.App.4th at pp. 1088-1089.)
Mother argues that In re Amy M. (1991) 232 Cal.App.3d 849 (Amy M.),
in which the appellate court determined that the juvenile court should have
required the minor to testify, should control here. We disagree.
In Amy M., the parties disputed jurisdiction and presented competing
experts as to whether the minor had suffered emotional damage inflicted by
his parents or rather, merely as a result of the removal. (See Amy M., supra,
232 Cal.App.3d at pp. 864-865.) In that context, the appellate court
determined that the minor’s testimony was crucial, because it had the
potential to directly verify or refute the expert testimony. (Id. at p. 865.) In
addition, the court noted that “there was no other testimony or statements
which could have been admitted into evidence to substitute for [the minor’s]
testimony.” (Id. at p. 868.)
By contrast, in this case, while Dr. Chou indicated that E.F. would be
best served by continued attachment focused therapy with Mother and that
additional placements would be detrimental to E.F., all of the experts,
including Dr. Chou, agreed that Mother behaved inappropriately with E.F.
25
and that Mother’s behavior was at least a significant cause, if not the sole
cause, of E.F.’s declining behavior. Although the relationship between E.F.
and Mother was complex, the juvenile court was very familiar with the case,
was aware of E.F.’s various statements regarding contact with Mother, and
was able to weigh the experts’ opinions. Thus, it is unlikely that E.F.’s live
testimony would have helped resolve the fundamental issue of whether it
would be beneficial or detrimental for E.F. to maintain a relationship with
Mother.
Mother also asserts that, like the parents in Amy M., she and her
attorney were denied access to E.F. prior to the section 366.26 hearing. (See
Amy M., supra, 232 Cal.App.3d at p. 868.) Mother was denied access to E.F.
based on the juvenile court’s order suspending visits between Mother and
E.F., and that order is not at issue here. With respect to Mother’s counsel,
Mother does not indicate what her counsel would have asked E.F. if given the
opportunity and there is no indication that E.F. would have said anything
that she had not already said to the social workers. Indeed, the juvenile
court invited Mother’s counsel to renew her request to meet with E.F. if she
could establish the need for specific information regarding a particular issue
that arose during the proceedings, but Mother’s counsel did not do so.
Accordingly, we conclude that Amy M. is not controlling here, and that
the juvenile court did not abuse its discretion by declining Mother’s request
that E.F. be required to testify at trial.
II. Termination of Parental Rights
We turn next to Mother’s assertion that the juvenile court erred by
terminating her parental rights. Mother asserts that there was insufficient
evidence to support the juvenile court’s finding that E.F. was likely to be
adopted within a reasonable time and that the court should have applied the
26
beneficial parent-child relationship exception in section 366.26, subdivision
(c)(1)(B)(i), to preclude the termination of her parental rights.
A. The Juvenile Court’s Finding that E.F. Was Likely to Be Adopted by
a Specific Family Must be Reconsidered in Light of Significant Post-
Judgment Developments
Once the juvenile court terminates reunification services in a
dependency proceeding, the focus shifts from preserving the family to
promoting the best interests of the child, including the child’s interest in a
stable, permanent placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317;
In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Autumn H. (1994)
27 Cal.App.4th 567, 573.)
At this point, “the juvenile court has three options: (1) to terminate
parental rights and order adoption as a long-term plan; (2) to appoint a legal
guardian for the dependent child; or (3) to order the child be placed in long-
term foster care.” (In re Fernando M., supra, 138 Cal.App.4th at p. 534.) Of
those options, adoption is the permanent plan preferred by the Legislature,
even though it requires termination of the natural parents’ legal rights to the
child. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) At the same time,
though, section 366.26, subdivision (c)(1), requires the juvenile court to find,
“by a clear and convincing standard, that it is likely the child will be
adopted,” before terminating parental rights and ordering that the child be
placed for adoption. (Ibid.)
When determining whether the child is adoptable, the juvenile court
typically focuses on whether the child’s age, physical condition, and emotional
health make it difficult to find a person willing to adopt that child within a
reasonable time. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah
M.); In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).) It is not
necessary that the child already be placed in a prospective adoptive home,
27
and the court may find that the child is generally adoptable without
examining the suitability of a specific prospective adoptive home. (Brian P.,
supra, at p. 624; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, in
some cases, where the minor might not be considered generally adoptable
“due to age, poor physical health, physical disability, or emotional
instability,” the juvenile court may nevertheless conclude that the minor is
likely to be adopted based on the identification of a specific prospective
adoptive family that has expressed a willingness to adopt the minor. (Sarah
M., supra, at p. 1650.)
We affirm the juvenile court’s finding of adoptability on appeal if there
is substantial evidence to support a finding, by clear and convincing evidence,
that the child is either generally or specifically adoptable. (See Sarah
M., supra, 22 Cal.App.4th at pp. 1649-1651). The California Supreme Court
recently clarified, “when presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing evidence,
the [appellate] court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of fact could have
made the finding of high probability demanded by this standard of proof.”
(See In Re Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
The juvenile court found that E.F. was specifically adoptable. The
court noted the “described commitment” and experience of the specific foster
family that E.F. was placed with at the time of the section 366.26 hearing, as
well as E.F.’s statement that she was comfortable in the home, and
concluded, “I do find that she is specifically adoptable.” The juvenile court
did not make any findings on the record indicating that E.F. was generally
adoptable. Although the court used the more general statutory language in
its written order, finding “by clear and convincing evidence, it is likely that
28
said child will be adopted if parental rights are terminated,” it is clear from
the record that this finding was based on the willingness of a specifically
identified family to adopt E.F.
However, during the pendency of the present appeal, this court learned
that E.F.’s placement with that family ended in April 2020 and that E.F. has
been residing in a residential facility since that time.5 Upon learning of this
development, we asked the parties to submit additional briefing addressing
what impact, if any, E.F.’s removal from the prospective adoptive home had
with respect to the juvenile court’s findings regarding adoptability. In its
response, the Agency states that E.F. “has not yet been placed in a new
adoptive home, although the Agency is looking at three adoptive placement
options,” and acknowledges that the matter should be remanded to the
juvenile court for a new assessment and section 366.26 hearing. We agree.
Appellate courts have, at times, deemed it appropriate to take
subsequent developments in juvenile dependency cases into account. (See In
re Elise K. (1982) 33 Cal.3d 138, 139 (Elise K.); In re B.D. (2019) 35
Cal.App.5th 803, 818 (B.D.).) We conclude that it is appropriate to do so here
given the history of this case, the facts surrounding the juvenile court’s
adoptability finding, and the significance of the subsequent change in
placement.
E.F. had been placed with the prospective adoptive family for only
three months at the time of the section 366.26 hearing and this family was
the fifth foster family that E.F. had been placed with since her removal from
5 On this court’s own motion, we take judicial notice of the minute orders
of the juvenile court in the underlying matter, dated July 27, 2020, which
confirm that E.F. was placed in a licensed group home or short-term
residential facility and referred to the Agency for adoptive placement. (Evid.
Code, § 452, subd. (d).)
29
Mother’s care in August 2018. Although the juvenile court ultimately found
that E.F. was likely to be adopted by that family, it did so only after some
significant hesitation. The court noted that the short length of the
placement, the number of previously disrupted placements, and the “many
factors surrounding the reasons” for the previous disruptions presented
abundant reason for pause, and stated, “we really don’t know how this is
going to pan out.” Despite those concerns, the court indicated that it did not
want to eliminate hope for E.F. and that it was encouraged by the stated
commitment and experience of the prospective adoptive family. The court
therefore proceeded to find that E.F. was specifically adoptable.
Unfortunately, the issues that caused the juvenile court to be concerned
about the placement came to fruition; the placement with the prospective
adoptive family was ultimately not successful, and E.F. was removed from
that placement. In light of that development, the juvenile court’s finding that
E.F. was likely to be adopted by that specific prospective adoptive family
cannot be sustained. (See Elise K., supra, 33 Cal.3d at p. 187; B.D., supra, 35
Cal.App.5th at p. 818.)
Minor’s counsel contends that this case is distinguishable from B.D.
We disagree. In B.D., the parents appealed from an order of the juvenile
court terminating their parental rights and noted that the minor had
subsequently been removed from the foster home where he was placed at the
time of the section 366.26 hearing. (Id. at pp. 808, 810.) The mother asked
the court to consider post-judgment evidence, including the reasons for the
removal and evidence indicating that the Agency had withheld relevant
information about the prospective foster parent from the juvenile court. (Id.
at p. 810, 814-815.) The appellate court granted the mother’s request and
ultimately reversed the juvenile court’s ruling based on the Agency’s failure
30
to provide a “full, fair and evenhanded preadoption study.” (Id. at pp. 818,
822, 824.)
Minor’s counsel asserts that the post-judgment evidence that the B.D.
court considered existed at the time of the section 366.26. hearing, while the
evidence at issue in this case did not. However, the B.D. court also
considered the change in placement itself, which occurred after the section
366.26 hearing. (See B.D., supra, 35 Cal.App.5th at pp. 810, 826 [noting that
the minor was left parentless].) Regardless, the B.D. court accepted the post-
judgment evidence because it concluded, as we do here, that it was a rare
case where post-judgment evidence undermined the juvenile court’s finding
that the minor was likely to be adopted. (In re B.D., supra, 35 Cal.App.5th at
p. 818; see also Elise K., supra, 33 Cal.3d at p. 139 [reversing a ruling
terminating parental rights based on a post-judgment change in placement
and stipulation of the parties].)
Minor’s counsel also asserts that E.F. was, and remains, generally
adoptable, and that this court may make that finding on appeal based on the
evidence presented in the juvenile court. We disagree. The juvenile court did
not make such a finding and, even if such a finding could be implied, it would
not be supported by substantial evidence. (See Sarah M., supra,
22 Cal.App.4th at pp. 1649-1651). Minor’s counsel relies on the social
worker’s statements indicating that E.F. was generally adoptable, but those
statements are conclusory and are not sufficient to support a finding under
the clear and convincing evidence standard. (See In Re Conservatorship of
O.B., supra, 9 Cal.5th 989 at p. 1005.) In both statements, the social worker
listed several of E.F.’s positive qualities but did not address the serious
behavioral issues that had resulted in the termination of several previous
placements. Further, the Agency did not provide any information regarding
31
the number or existence of available prospective foster families that would be
likely to adopt a child with E.F.’s characteristics.
We acknowledge that a foster parent’s “willingness to adopt generally
indicates the [child] is likely to be adopted within a reasonable time either by
the [foster] parent or by some other family.” (In re Sarah M., supra, 33
Cal.App.4th at p. 1650.) However, the juvenile court found that E.F. was
adoptable based specifically on the prospective adoptive family’s experience
and willingness to handle E.F.’s identified emotional and behavioral issues;
we now know that even that placement was not successful. Moreover,
although the Agency indicates that it is looking at some potential placement
options, E.F. has been in a residential facility for nearly six months and has
not been placed with another prospective adoptive family. Accordingly, we
cannot conclude that the willingness of that specific family to adopt E.F. is
sufficient to support a finding that E.F. is generally adoptable, particularly
where the juvenile court did not make such a finding in the first instance.
Finally, minor’s counsel asserts that, given the lengthy history of
emotional abuse inflicted on E.F. by Mother, termination of Mother’s
parental rights in favor of adoption continues to be in E.F.’s best interest.
However, that issue is not properly before this court. Instead, we must
conclude that the juvenile court’s previous finding that E.F. was specifically
adoptable cannot be sustained in light of the subsequent failure of the
placement with the specific prospective adoptive family. We therefore
remand the matter to the juvenile court with instructions to reconsider the
issue of adoptability.
B. The Juvenile Court Did Not Err by Refusing to Apply the Beneficial
Parent-Child Relationship Exception
Although we have determined that the juvenile court’s termination of
parental rights must be reconsidered, we address Mother’s argument
32
regarding the applicability of the beneficial parent-child relationship
exception and conclude that the juvenile court did not err in determining that
the exception did not apply.6
Courts have interpreted the beneficial parent-child relationship
exception set forth in section 366.26, subdivision (c)(1)(B)(i), as requiring a
parent-child relationship that “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.” (In re Autumn H., supra, 27 Cal.App.4th at 575.) “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.”
(Ibid.)
A parent claiming the beneficial parent-child relationship exception has
the burden of establishing that it applies and must prove that the child has a
significant and positive emotional attachment to the parent. (In re T.S.
(2009) 175 Cal.App.4th 1031, 1039; In re C.F. (2011) 193 Cal.App.4th 549,
555.) Because a selection and implementation hearing occurs “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
6 We address this issue because it is possible that the juvenile court will
find that E.F. is likely to be adopted despite the recent failure of her
placement in the prospective adoptive home. We acknowledge that this issue
will be moot if the juvenile court determines that E.F. is not likely to be
adopted.
33
over the Legislature’s preference for adoptive placement.” (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.)
The parent asserting the exception will not meet his or her burden by
showing the existence of a “friendly and loving relationship,” an emotional
bond with the parent, or pleasant, even frequent, visits. (In re J.C. (2014)
226 Cal.App.4th 503, 529; In re C.F., supra, 193 Cal.App.4th at p. 555; In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re L.S. (2014) 230
Cal.App.4th 1183, 1200 [“To avoid termination of parental rights, it is not
enough to show that a parent-child bond exists”].) Rather, the parent must
play a parental role in the child’s life, resulting in a significant, positive
emotional attachment from the child to parent that if severed would result in
harm to the child. (In re C.F., supra, at p. 555; In re Elizabeth M. (1997) 52
Cal.App.4th 318, 324; see also In re J.C., supra, at p. 529 [observing that
interaction between a natural parent and child will always confer some
incidental benefit to the child and for the exception to apply, “ ‘a parental
relationship is necessary’ “].)
We apply a hybrid standard of review when reviewing the juvenile
court’s ruling regarding the applicability of the parent-child relationship
exception on appeal. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531.) We
review the juvenile court’s findings regarding the existence of a beneficial
parental relationship for substantial evidence and review the juvenile court’s
determination as to whether there is a compelling reason for concluding the
termination of parental rights would be detrimental to the child for an abuse
of discretion. (Ibid.; In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see
also Jasmine D., supra, 78 Cal.App.4th at p. 1351 [practical difference
between pure substantial evidence standard of review and hybrid standard of
review is insignificant].)
34
There was ample evidence that Mother’s relationship with E.F. was not
beneficial and in fact, that the relationship was detrimental to E.F. As
discussed, ante, E.F. had a long history of well-document adverse reactions to
Mother and several doctors and therapists agreed that her interactions with
Mother were causing her continued psychological and emotional harm.
Indeed, the negative impacts of her contact with Mother were so severe that
the juvenile court had suspended contact between Mother and E.F. prior to
the combined section 388 and 366.26 hearings. Moreover, Mother’s older
children were also removed from her care due to emotional abuse and neglect,
and a neuropsychological evaluation indicated that it was unlikely that
additional treatments or services would be effective in changing Mother’s
problematic behaviors.
Accordingly, substantial evidence supports the juvenile court’s finding
that Mother did not have a beneficial relationship with E.F. and we find no
abuse of discretion in the juvenile court’s refusal to apply the parental
relationship exception to preclude the termination of Mother’s parental
rights.
DISPOSITION
The judgment is reversed and the matter is remanded to the juvenile
court with instructions for the court to determine whether E.F. is likely to be
adopted despite the recent failure of her placement in a prospective adoptive
home.
35
AARON, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
36