In re E.B. CA4/2 ( 2024 )

Filed 1/4/24 In re E.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.B. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E081976
Plaintiff and Respondent, (Super.Ct.Nos. J290686 &
J290687 & J290688 &
v. J290689 & J290690)
B.B. et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and
Appellant B.B.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant J.R.
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Tom Bunton, County Counsel, Pamela J. Walls, Special Counsel for Plaintiff and
Respondent.
Defendants and appellants J.R. (Mother) and presumed father B.B. (Father;
collectively, Parents) are the parents of Br.B. (female born Nov. 2017), J.B. (female born
Oct. 2020), E.B. (female twin born Sept. 2021), and G.B. (female twin born Sept. 2021;
collectively, Twin Girls).1 Mother has another child, A.G. (female born Feb. 2013).2 On
appeal, Parents contend that the juvenile court’s findings and orders at the Welfare and
Institutions Code3 section 366.26 hearing terminating their parental rights to the Twin
Girls must be reversed. For the reasons set forth post, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 26, 2021, the family came to the attention of San Bernardino County
Children And Family Services (CFS) for allegations of emotional abuse to Br.B. and J.B.
by Parents. Law enforcement was called after Father hit Mother.
On September 3, 2021, Mother “acknowledged that domestic violence took place.
She reported that the only times that the father has been physically violent with her is
when she is pregnant.” Mother was near the end of her pregnancy with the Twin Girls.
1 In 2022, Mother gave birth to twin boys. They are not parties to this appeal;
they are subjects of a separate dependency case in Riverside County.
2 A.G.’s biological father passed away in 2014.
3 All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2
Mother stated that Father chased her into the kitchen and slapped her after Mother
confronted Father about getting a job. Mother reported that Father had previously served
jail time for hitting Mother when she was pregnant. Mother denied that either she or
Father had a history of drug abuse. Although Father did not reside in the home, Mother
reported that she was unemployed so she “relied heavily on the father as he provided
food, shelter and basi[c] necessities for herself and the children.” Mother stated that “her
dilemma was having multiple children, being pregnant and no support, and that is why
she felt required to stay in the relationship.” Mother admitted that “within the last ‘few
months’ the father’s demeanor and personality had been changing,” but she denied father
used illicit drugs or drank alcohol extensively. Mother called the social worker on
September 14, 2021, and informed her that a court granted a temporary domestic violence
restraining order against Father.
On September 16, 2021, when the social worker was interviewing A.G., Br.B.
“interrupted and reported that the father spent the night at the house the previous night
and the father had been arrested.” When A.G. was asked to confirm Br.B.’s statement,
A.G. “was unwilling to do so.” When the social worker asked Mother, Mother denied
that Father had been in their home. Mother eventually admitted that Father was at the
home to help with the children and take A.G. to school. Mother then stated, “that the
father had been arrested and taken to jail on an open warrant for the domestic violence
incident that occurred on August 26, 2021.” Mother stated that she had not
communicated with Father since his arrest.
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On September 17, 2021, Father called the social worker “requesting to be
interviewed and to verify what he need[ed] to do in order to comply with CFS.” Father
stated that on August 26, 2021, Mother would not let him leave when Father tried to
leave the house. Therefore, Father pushed Mother. “He denied hitting her.” Father then
“acknowledged the previous incident of domestic violence but denied hitting [Mother].
He reported ‘it’s normal relationship stuff.’ ” Father declined services and reported being
“sober from marijuana and alcohol for three months.” Father, however, would not
provide details. The social worker ended the call when Father became verbally
combative, condescending, and rude. “However, before terminating the call the [social
worker] advised the father after he calmed down to call back or text if he wanted to
continue the conversation.”
A few days later, Mother gave birth to the Twin Girls.
On September 23, 2021, the social worker “obtained a signed detention warrant”
for the children. Law enforcement served the warrant at Mother’s home. Father was
arrested for violating the restraining order while attempting to flee the home. Br.B and
the Twin Girls were placed in a foster home; A.G. and J.B. were placed with the maternal
grandparents.
On September 27, 2021, CFS filed section 300 petitions on behalf of the children.
A.G.’s petition alleged that Mother had a substance abuse problem and a history of
domestic abuse under section 300, subdivision (b). The petitions on behalf of the other
four children alleged that Parents had substance abuse problems and histories of domestic
abuse, and Father had an extensive criminal history under section 300, subdivision (b).
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The petitions also alleged that Father left a loaded firearm within the reach of A.G., under
section 300, subdivisions (b) and (j).
At the detention hearing on September 28, 2021, Parents and their attorneys were
present. The court found a prima facie case established that the children came within
section 300 and continued their detention. The court also ordered a same-day drug test
for Parents, and told them that a refusal or failure to test would be deemed a positive test.
The court then ordered supervised visitation.
Notwithstanding the court’s order, neither Mother nor Father drug tested after the
detention hearing.
At the jurisdiction and disposition hearing on October 19, 2021, Parents and their
attorneys were present. At the hearing, the juvenile court found the following allegations
true: (1) as to AG, that she came within section 300, subdivision (b); and (2) as to E.B.,
G.B., J.B. and Br.B., that they came within section 300, subdivisions (b) and (j). The
court removed the children from Parents’ custody, and ordered reunification services with
increased visitation between the Twin Girls and Mother.
On April 12, 2022, CFS filed a Status Review Report for the six-month review
hearing. In the report, the social worker reported that Parents were still in a relationship
and moved into a new apartment together. The children were assessed and they were
determined not to qualify for any mental and emotional services. They appeared happy
and comfortable in their placements.
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The social worker provided that Mother participated in services. Her “individual
counseling” counselor requested additional sessions. Mother missed several drug tests.
Father also participated in services and missed several drug tests.
At the six-month review hearing on April 19, 2022, Parents and their attorneys
were present. The juvenile court granted unsupervised visits.
In a status review report for the section 366.21 12-month hearing, the social
worker reported that Parents married. Mother gave birth to twin boys in September 2022.
Parents continued to participate in court-ordered services.
The social worker reported that the children continued to be happy and
comfortable in their placement. Moreover, the social worker noted no concerns regarding
visitation.
At the October 5, 2022, 12-month review hearing, Parents and their attorneys were
present. The juvenile court set the matter for mediation, followed by a further review
hearing.
In a Mediation Report dated October 18, 2022, the social worker noted that
Mother missed drug tests on September 7, September 26, and October 4, 2022. On
September 15, 2022, however, Mother’s doctor provided a note stating that Mother
would be unable to test due to her pregnancy. The social worker wrote that Mother
would “start her random drug testing again after November 14, 2022.” The social worker
also reported that since “[t]here were no concerns [regarding the twin boys,] Riverside
CPS would not accept a referral.”
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The social worker and Parents participated in the mediation. At the mediation the
parties agreed “to begin unsupervised overnights and weekends after the next hearing,”
and “[u]pon 4 successful weeks / visits to transition to a 29-day visit.”
At the hearing the following day, Father and attorneys for Parents were present.
Mother did not attend. The court stated that at the mediation, “[t]here was a full
agreement between the parties to begin unsupervised, overnights, and weekends after
today’s date. And then upon four successful weeks, visits are to transition to a 29-day
visit. [¶] The Court would be in agreement with setting the matter out 60 days to
December 19 and granting authority for visitation as agreed to by the parties.”
After discussing the issue with counsel, the juvenile court scheduled a further 12-
month review hearing for December 19, 2022. The court then stated: “I’ll find good
cause and in the best interest of the minors to continue the matter to transition them home
to [Parents]. I’ll grant authority for [Parents] to begin unsupervised visits, overnights,
and weekends. And then upon four successful weeks, the Court will grant authority for
the children to have an extended visit with [Parents].”
In an Additional Information to the Court filed on December 14, 2022, the social
worker reported that overnight and weekend visits proceeded with no issues. Thereafter,
all five children began their 29-day trial visits. On November 7, 2022, however, Mother
texted the social worker indicating that the family was being evicted from their
apartment. Thereafter, Parents eventually worked out a payment plan and moved back.
Although the doctor’s note excusing Mother from drug testing expired on November 14,
2022, Mother failed to drug test on November 18, 2022. Father also missed his drug test.
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At the December 19, 2022, continued hearing, Mother and attorneys for Parents
were present. Father was not present. The court continued the hearing to review the 29-
day trial visit. The juvenile court ordered that Children’s Advocacy Group and CFS were
to have unannounced access to the children. The juvenile court explained to Mother,
“[s]ince the children remain in your care on an extended visit, I’m ordering that you
allow Children’s Advocacy Group—the attorneys that represent the children and their
social worker—have access to your home to assess the children while they remain with
you on an extended visit. . . . [¶] . . . [¶] . . . The children’s attorney and the children’s
attorney’s social worker. They may make announced visits to speak to their clients and
see the children in your home.”
In the January 11, 2023, Additional Information to the Court, the social worker
reported that Mother missed her only drug test in December. Father missed two drug
tests. Mother stated that she forgot to test because the children were in her home, and
Father stated that he was sick. The social worker attempted to make unannounced visits
but no one answered or responded, even though the social worker heard the television on
one attempt and saw the family car on another attempt. In addition, Parents failed to
respond to the social worker’s calls and texts. When the social worker was finally able to
see the family at an unannounced visit, the social worker discussed the importance of
complying with the juvenile court’s orders to complete random drug tests. Subsequently,
Father tested negative but Mother missed another drug test.
At the January 11, 2023, hearing, Father and attorneys for parents were present.
Mother did not attend the hearing. The court set the matter for a contested 12-month
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review hearing. The court also terminated the trial visit and reverted Parents’ visitations
to supervised visits. The court further ordered Parents to drug test that day. The court
again reminded Parents that failing to test would be considered a positive result.
CFS filed an addendum report on January 31, 2023. In the report, the social
worker provided that J.B. and A.G. were placed with their maternal grandparents again.
The Twin Girls and Br.B. were placed in a new foster home.
On January 19, 2023, Riverside CPS contacted Parents regarding the twins boys.
Riverside CPS requested that Parents take saliva drug tests. Father’s results were
inconclusive, and Mother refused to test. Later that day, Mother confronted Father; it led
to a physical alternation. Father “busted” Mother’s lip. Father was subsequently arrested
for spousal abuse. Riverside CPS removed the twin boys on January 20, 2023.
On January 23, 2023, Mother “completed a random drug testing for Riverside
County which was negative.” The Riverside social worker, however, believed that
Mother “may have ‘taken something’ ” so was “talking about obtaining a hair follicle
test.” Riverside CPS reported that Mother refused to take a hair follicle drug test.
Mother took numerous drug tests for both cases in Riverside and San Bernardino. She
tested negative for several tests but tested positive for amphetamines on January 20,
2023.
During this time, Mother moved into a friend’s home, and then to her aunt’s home
in Los Angeles.
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At the contested review hearing on February 2, 2023, Father and Parents’
attorneys were present. Mother was not present at the beginning of the hearing but
eventually appeared telephonically after several attempts to reach her.
After counsel for Parents, the children, and CFS presented their arguments, the
juvenile court found that neither parent benefitted from services. The court stated, “the
Court cannot find that [Parents] have demonstrated capacity and ability to complete the
objectives of the treatment plan and provide for the children’s safety, protection, physical
and emotional health. It’s clear that while they may have completed their classes, they
have failed to benefit from those classes.” The juvenile court then stated that “over the
objection of [Parents], the Court will adopt the findings and orders set forth in the
addendum report of today’s date.”
The court ordered the children as continued dependents of the court, terminated
reunification services to parents, and set the matter for a contested section 366.26
hearing.
On May 19, 2023, CFS filed its Section 366.26 WIC Report. In the report, the
social worker reported that the Twin Girls, who were one year old, were happy in their
placement with their prospective adoptive parents. The Twin Girls were placed with the
foster parents on September 23, 2021, and then again on February 16, 2023. “When
asked to describe their relationship with the children, [the foster mother] stated, ‘I feel
like they are mine, they don’t know anyone else but me and my husband, when they went
home for the trial period, they had a hard time and so did we’. [The foster parents]
stated, ‘They are the princesses and have brought so much joy into our household.’ ” The
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social worker noted that the foster parents look “affectionate and nurturing to [the Twin
Girls].” Moreover, both foster parents wished “to legalize their parental relationship with
he children and [were] very committed to providing them permanency through adoption.”
At the contested section 366.26 hearing on August 16, 2023, Parents and their
respective attorneys were in attendance. After hearing from the attorneys for Parents, the
children, and CFS, the juvenile court found that the Twin Girls were likely to be adopted.
Moreover, after analyzing the elements of the parental benefit exception to adoption
under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), the court found that the
exception did not apply. Thereafter, the court terminated the parental rights of Parents to
the Twin Girls.
On August 16, 2023, Father filed a timely notice of appeal, and on August 18,
2023, Mother filed a timely notice of appeal.
DISCUSSION
THE JUVENILE COURT PROPERLY FOUND THAT THE BENEFICIAL
EXCEPTION TO ADOPTION DID NOT APPLY
On appeal, Mother contends that the juvenile court erred in finding that the
parental benefit exception to adoption did not apply. Mother states: “The judgment
terminating parental rights must be reversed: In light of [the Twin Girls’] relationships
with their parents and the consequences of severing those relationships—as well as the
children’s relationships with their older sisters, younger brothers, and extended family—
the juvenile court abused discretion in deciding against applying the parent-children
relationship exception to terminating parental rights.”
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“Father joins Mother’s argument in her appellant’s opening brief that the juvenile
court abused its discretion when it found the parent-child relationship did not apply and
the order terminating Mother’s parental rights must be reversed; if the judgment
terminating Mother’s parental rights is reversed, the judgment terminating Father’s rights
must also be reversed.”
At a section 366.26 hearing, the juvenile court selects and implements a permanent
plan for the child. If a child cannot be returned to his or her parents and is likely to be
adopted if parental rights are terminated, a court must select adoption as the permanent
plan unless one of the exceptions provided in section 366.26, subdivision (c), applies. (In
re L.Y.L. (2002) 101 Cal.App.4th 942, 946; In re Celine R. (2003) 31 Cal.4th 45, 53
(Celine R.).)
In order to invoke an exception under section 366.26, subdivision (c)(1)(B)(i), “the
moving parent must establish, by a preponderance of the evidence, each of the following
elements: (1) that the parent has regularly visited with the child; (2) that the child would
benefit from continuing the relationship; and (3) that terminating the relationship would
be detrimental to the child.” (In re Katherine J. (2022) 75 Cal.App.5th 303, 316
(Katherine J.).) This exception “to the general rule that the court must choose adoption
where possible—‘must be considered in view of the legislative preference for adoption
when reunification efforts have failed.’ ” (Celine R., supra, 31 Cal.4th at p. 53.)
We review the juvenile court’s findings on the first two elements under the
substantial evidence standard of review. (In re LA-O (2021) 73 Cal.App.5th 197, 206
(LA-O).) “But ‘the ultimate decision—whether termination of parental rights would be
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detrimental to the child due to the child’s relationship with his parent—is discretionary
and properly reviewed for abuse of discretion.’ ” (Id., at p. 206.) “ ‘A court abuses its
discretion only when “ ‘ “the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.” ’ ” ’ ” (LA-O, at pp.
206-207.)
In this case, the juvenile court analyzed the parental benefit exception under
Caden C., supra, 11 Cal.5th 614 and In re Autumn H. (1994) 27 Cal.App.4th 567. After
discussing both Caden C. and Autumn H., the juvenile court stated: “Stated otherwise,
the trial Court must determine whether terminating parental rights serves the child’s best
interest. The Court acts in the child’s best interest in a specific way by deciding whether
the harm of severing a relationship outweighs the security and the sense of belonging in
[a] new family would confer. [¶] In looking at the relationship between [Parents] and the
children, the Court is cognizant that the relationship between parents and children may be
shaped by . . . set factors that include the age of the children, the portion [of the]
children’s life spent in the parent’s custody, whether there are positive or negative effects
of interaction between the parent and child, and whether a child has a particular need. [¶]
In this case, as [CFS’s counsel] stated, and as set forth in the report that was received into
evidence, [the Twin Girls] were born [in September 2021]. They came into protective
custody on September 23rd, 2021, and they were in their first foster care placement for
just over 14 months when they were returned home on January 11, 2023. And then on
February 16, 2023, they were removed again and placed in the previous concurrent
planning home of the current prospective adoptive parents.”
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The court then went on to discuss the elements of Caden C., as they applied to the
current case: “As [Mother] indicated, the twins lived with her about one and a half
months. Both [Mother] and [Father] satisfied the first element of In re Caden C. It
appears both have visited on a regular basis and are visiting within the confines of the
Court’s order. The visits have been one time per month for two hours. According to the
.26 report of June 2nd, [Parents] have had monthly supervised visits, which are separate,
and the visits have been going well. The mother testified she has not missed any visits.
She described what takes place during the visits, including playing with the twins,
feeding them, and spending time together.”
The court noted that Parents testified that “the children are shy at first” until they
wanted to play. Therefore, the juvenile court found that “both [Parents] have established
the first prong of the elements set forth in In re Caden C.”
However, the court went on to state that Parents have failed to establish “proof of
a relationship the continuation of which would benefit the children such that termination
of parental rights would be detrimental to the child.” The court stated that the Twin Girls
“have only lived with [Parents] for a month and [a] half or six weeks at best. There’s
been no indication that there is any emotional dysregulation at the end of the visits, no
crying.” The court went on to note that there were “no temper tantrums, nothing to
indicate that the separation between the children and [Parents] cause[d] anguish to the
children.: Instead, the court noted that Father stated the Twin Girls looked serious at the
end of the visits and wanted “to keep playing.”
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Therefore, the juvenile court found “that [Parents] have not met the burden of
proof under In re Caden C. There has been insufficient evidence presented to allow the
Court to deviate from the legislative preference for adoption, and this is not a case in
which exceptional circumstances exist to allow the Court to deviate from the legislative
preference for adoption.”
Therefore, for the Twin Girls, the court adopted “the findings and orders that have
been submitted,” and terminated “the parental rights of [Parents] and all unknown
fathers.” The court also found that adoption was “the children’s permanent plan.”
Furthermore, the court stated: “The Court is finding that the children’s placement is
necessary; the children’s placement is appropriate; the children remain dependents of the
Court.”
We agree with the juvenile court’s reasoning and findings. There was no evidence
of any emotional attachment the Twin Girls had for their parents. The Twin Girls were
placed in the prospective adoptive home just days after being born and spent only one
and a half months with Parents when they were infants. Hence, we agree with the court
due to the limited time the Twin Girls spent with Parents, Parents have failed to establish
“proof of a relationship the continuation of which would benefit the children such that
termination of parental rights would be detrimental to the child.”
However, even if we could find that there was some benefit to maintaining the
relationship between the Twin Girls and their parents, we find that there would be no
detriment to the Twin Girls with the termination of their relationship with Parents. This
court recently explained that “ ‘in assessing whether termination would be detrimental,
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the trial court must decide whether the harm from severing the child’s relationship with
the parent outweighs the benefit to the child of placement in a new adoptive home.’
[Citation.] The court must ask, ‘does the benefit of placement in a new, adoptive home
outweigh “the harm [the child] would experience from the loss of [a] significant, positive,
emotional relationship with [the parent?]” ’ ” (LA-O, supra, 73 Cal.App.5th at p. 206.)
Here, the juvenile court did just that. There is no evidence that severing the
relationship between the Twin Girls and Parents would be detrimental to them. As noted
above, the Twin Girls were removed from their home when they were just days old.
Although Parents visited regularly, and the visits went well, there was no evidence of any
parent-child relationship, significant or not.
“ ‘[T]he beneficial relationship exception demands something more than the
incidental benefit a child gains from any amount of positive contact with her natural
parent. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 [a parent must demonstrate
something ‘more than frequent and loving contact, an emotional bond with the child, or
pleasant visits’]; In re Angel B. (2002) 08 Cal.App.4th 454, 458 [‘for the exception to
apply, the emotional attachment between the child and parent must be that of parent and
child rather than one of being a friendly visitor or friendly nonparent relative, such as an
aunt’].)” (Katherine J., supra, 75 Cal.App.5th at p. 316.)
In this case, there is no evidence that the Twin Girls would be “greatly harmed” by
the termination of their natural parent-child relationship with Mother. (In re Angel B.,
supra, 97 Cal.App.4th at p. 466.) The Twin Girls are barely two years old and lived with
parents for a brief time, the girls never asked for Parents and did not react emotionally
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when visits with Parents ended. As the juvenile court stated, Parents “have not
established proof of a relationship the continuation of which would benefit the children
such that termination of parental rights would be detrimental to he child. The children
have only lived with [Parents] for a month and [a] half or six weeks at best. There’s been
no indication that there is any emotional dysregulation at the end of the visits, no crying.
There’s no temper tantrums, nothing to indicate that the separation between the children
and the mother and father causes anguish to the children.”
Therefore, we conclude Parents failed to show that the juvenile court’s findings
lack the support of substantial evidence or that its exercise of discretion rested on an
unsupported factual basis. The juvenile court properly found the parent-child relationship
exception to adoption did not apply.
DISPOSITION
We affirm the findings and orders of the juvenile court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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