In re I.T. CA4/1 ( 2024 )

Filed 2/15/24 In re I.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 I.T., a Person Coming Under
the Juvenile Court Law.
D082441
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520755)
Plaintiff and Respondent,
v.
T.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and
Respondent.
T.M. (Mother) appeals from the juvenile court’s order terminating her
parental rights as to her four-year-old son I.T. (the child) following a
contested Welfare and Institutions Code1 section 366.26 hearing. She
maintains the juvenile court erred by not applying the parental benefit
exception in lieu of ordering a permanent plan of adoption. We affirm the
juvenile court’s order.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and investigation
According to the San Diego County Health and Human Services
(Agency) June 2, 2022 detention report, the child abuse hotline received its
first referral as to the child on May 10, 2021. After Mother was admitted to a
hospital for treatment of an infection, she tested positive for
methamphetamines, THC, opiates, and benzodiazepines, and while there, she
admitted to using drugs daily and caring for her son while under the
influence. Two days later, the hotline received another report. The caller
similarly reported that Mother was under the influence while caring for the
child and would leave him unsupervised while she used substances. The
caller also raised concerns of gang affiliation, prostitution, and an unsecured
gun in Mother’s residence.
When interviewed, Mother told the social worker she began using
methamphetamines at the age of 14 and had previously undergone treatment
and experienced some periods of sobriety over the years. She had been the
primary caregiver for her then two-year-old son and admitted to using
marijuana in his presence, leaving him unsupervised in another room while
smoking methamphetamines with friends, and caring for him while under
the influence. She drank three to four times per week, got drunk about once
a week, and for the three months prior to her hospital admission, she used
1 All further statutory references are to the Welfare and Institutions
Code.
2
methamphetamines, THC, and Xanax daily. Mother believed it was fine if
she used while the child was in another room.
According to the detention report, in December of 2020, Mother sent
the child to live with the maternal grandparents while she continued to use
on and off. She had no long-term sobriety since then but stated she did not
need treatment. According to maternal grandfather, Mother left the child
with maternal grandparents in California for six weeks while she went to
Iowa.
The Agency’s investigation was substantiated for general neglect, and a
safety plan was created on May 18, 2021, whereby Mother agreed to have the
maternal grandparents be the sole caregivers for the child with supervised
visitation.
B. Section 300 petition and jurisdiction/disposition hearing
On June 1, 2021, the Agency filed a petition pursuant to section 300
and a protective order was issued. The following day, the juvenile court
approved the child’s detention in the maternal grandparents’ home and set a
jurisdiction and disposition hearing. The maternal grandparents had cared
for the child full time since Mother was admitted to the hospital on May 5,
2021, and they continued to care for him throughout this dependency case.
In its July 22, 2021 jurisdiction/disposition report, the Agency reported
that Mother admitted to driving the child after consuming a marijuana edible
on Easter day in 2021, but she claimed she was not high. She stated she was
not using drugs at that time but confirmed drinking alcohol and abusing
Xanax. She was attending outpatient treatment at McAlister North Central
Women’s Recovery Center (McAlister), and although she was struggling with
anxiety, she was not receiving any mental health treatment. The Agency was
concerned that the minor was at significant risk of harm and recommended
3
that the parents receive family reunification services and the child remain in
out of home care.
The jurisdiction and disposition hearing was held on September 29,
2021. The juvenile court removed the child, then age two, from the parents’
custody pursuant to section 361, subdivision (c). The court ordered
reunification services for both parents2 and scheduled the six- and 12-month
review hearings.
On January 18, 2022, Mother was arrested for vehicle theft, possession
of a controlled substance and paraphernalia, possession of stolen property,
forgery, and possession of burglary tools. The criminal court was apparently
willing to vacate the charges upon Mother’s completion of the KIVA
residential substance abuse treatment program. Although Mother enrolled
in the program, she did not stay sober and left the program on March 2, 2022.
Mother reentered the KIVA program on March 15, 2022, and expressed
a willingness to commit to treatment. The Agency commended Mother for
returning to treatment and focusing on learning tools to remain sober. In
addition, Mother had begun to gain insight into how her behaviors had been
unsafe for her child and was open to therapy and following the
recommendations of the Agency. As a result of Mother’s progress, the Agency
recommended an additional six months of reunification services.
C. Six- and 12-month review hearings
At the six-month review hearing on April 28, 2022, the court
terminated reunification services for the father. Although it found that
returning the child to the custody of Mother would create a substantial risk of
detriment to the child’s physical or emotional well-being, the court adopted
2 Father was incarcerated when I.T. was removed from his Mother’s
custody and was again incarcerated at the time of the section 366.26 hearing.
He does not contest the order terminating his parental rights.
4
the Agency’s recommendation to extend reunification services for six months
and permitted unsupervised visits with Mother while she was at the KIVA
residential program.
Mother completed the KIVA program on June 2, 2022 and consistently
visited the child while there. However, after completing the program, she
was unable to maintain her sobriety, and although she had the opportunity
for supervised visitation, Mother only visited with the child on June 8, 2022,
and then stopped visiting “due to her continued substance use and
instability.” Mother would request video visits with the caregiver but would
not call for the actual visit.
In its July 28, 2022 report, the Agency reported that Mother was
incarcerated. On July 11, 2022, she was arrested on a warrant when she
went to visit a friend at the George Baily Detention Facility. She was
charged with multiple felony counts including burglary, vehicle theft,
possession of stolen vehicle and using another’s ID along with five
misdemeanor counts including intent to defraud, receiving stolen property,
and possession of a controlled substance and paraphernalia. According to the
Agency, Mother had not demonstrated that she understood how her unsafe
behaviors impacted the child, and the Agency noted that she went to visit a
friend in prison but had not visited her own child. The Agency recommended
termination of reunification services and the scheduling of a section 366.26
hearing.
On August 17, 2022, Mother was released from jail and moved to a
sober living facility. Mother began visiting the child weekly, and on
September 14, 2022, she had an intake appointment at McAlister to again
begin substance abuse treatment. The Agency commended Mother for
getting back into treatment but noted that she had not displayed the ability
5
to maintain her sobriety despite completing an inpatient treatment program,
participating in multiple outpatient programs, and living in various sober
living facilities. She continued to associate with people who hindered her
ability to maintain her sobriety and avoid criminal activity, she did not use
her coping skills or commit to the lifestyle changes necessary to remain
successful with reunification, and she continued to believe that using
substances while parenting was safe.
The child, on the other hand, was reported to be in a loving and
nurturing environment and had bonded to his maternal grandparents, who
had committed to his long-term care. The Agency reiterated its
recommendation that the court terminate reunification services and set a
section 366.26 permanency hearing. The 12-month review hearing was held
on September 29, 2022. The court terminated reunification services, ordered
supervised visitation, and set a section 366.26 hearing for January 26, 2023.
D. Visitation following failed reunification efforts
In its section 366.26 report, the Agency reported that, according to the
caregiver, Mother visited with the child “with some consisten[cy] but has
missed visits or canceled using numerous reasons.” In its April 25, 2023
addendum report, the Agency reported that Mother and the caregiver had
verbal altercations in front of the child, and the caregiver spoke negatively
about Mother in front of the child. Mother and the caregiver agreed to
behavior support. The Agency submitted a referral for formal supervised
visitation at a family visitation center and scheduled weekly virtual visits.
The Agency acknowledged that Mother had been consistent with visits
over a few months but noted that she had not attended visits consistently
throughout the case and did not stay in contact with the caregivers or the
Agency to get updates about the child for long periods. Between May 20,
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2021 and March 14, 2022, Mother was inconsistent in attending in-person
and virtual visits. At one point, she missed all the scheduled visits in one
month and stopped seeing the child entirely.
Mother reported many reasons why she could not attend visits and
missed multiple visits including moving frequently, being incarcerated, and
starting and stopping treatment for substance abuse. The instability in
Mother’s life made it difficult to schedule visits. The Agency referred Mother
to the family visitation center for supervised visitation multiple times, but all
the referrals were closed due to her cancellations, no-shows, or failures to
respond to requests to set up services.
Between March 15, 2022 and June 8, 2022, Mother visited the child
with regularity while she was in treatment at KIVA, but then relapsed.
Between June 10, 2022 and August 17, 2022, she tested positive for
methamphetamines and fentanyl and was asked to leave her sober living for
five days. She did not return. Shortly after relapsing, Mother was arrested
and detained at Las Colinas Detention and Rehabilitation Facility until
August 17, 2022. After her release, she began residing in sober living, stayed
clean, and became employed. During that time, the caregiver stated that
Mother would request video visits with the child but would not call for the
actual visit and that she did not visit with the child for over two months.
Between January 10, 2023 and April 14, 2023, the Agency supervised
nine in-person visits and the caregivers provided weekly virtual visits.
During this three-month period, the visits went well. Mother was on time,
did not cancel, and engaged positively and appropriately with the child,
giving him positive attention and affection. The child looked forward to the
visits, was happy and excited to see Mother, and became upset or cried when
the visits ended.
7
In its assessment of the parent-child relationship in its April 25, 2023
report, the Agency stated that Mother had not maintained regular and
consistent contact with the child, and that it was only in recent months that
Mother had consistent and regular contact. The child did have a substantial,
positive, emotional attachment to Mother as evidenced by his reactions to her
during their visits. However, the Agency found it questionable that
termination of parental rights would be detrimental to him since he had no
issues when he spent days at a time without seeing Mother. The child was
thriving in the care of his grandparents, where he had been placed for the
past almost 24 months (nearly half his life). In addition, when the social
worker asked the child who he would want to live with if he could live with
anyone, he replied, “My grandpa.”
Although Mother and the child had a positive relationship, the Agency
concluded it did not supersede the benefits of adoption, which was in the
child’s best interests. The Agency believed the child deserved to live in a
safe, stable, healthy, and loving environment free of drugs and violence and
recommended termination of parental rights and a permanent plan of
adoption. His grandparents were able and willing to adopt him and could
provide him with permanence, stability, and safety while maintaining family
connections. If parental rights were terminated, the Agency noted that
visitation would be at the caregiver’s discretion and recommended that visits
continue to be supervised.
The Agency submitted two addendum reports prior to the section
366.26 hearing focused on Mother’s visitation. According to the May 24, 2023
addendum report, Mother did not attend her scheduled in-person supervised
visits on April 28, 2023 and May 5, 2023. She stated she did not feel well on
April 28, and although she contacted the caregiver on May 5, 2023 to inform
8
him that she could not attend, she did not contact the social worker. She was
late for her next scheduled visit on May 12, 2023, which had been
rescheduled with Mother’s agreement to begin at 4:30 p.m. Mother did not
arrive until 5:06 p.m., and the visit was scheduled to end at 5:30 p.m. After
announcing several times that the visit was over, the monitor left at 5:45
p.m. The caregiver later reported that after the monitor left, Mother refused
to separate from the child, resulting in the child crying while the caregiver
picked him up and walked toward the building. Mother continued to follow
the caregiver, begging him for more time with the child.
Mother was considered a “no show” for her next supervised visit on
May 14, 2023. She claimed someone’s car broke down and requested a
FaceTime visit instead. The caregiver initially refused but then agreed to a
brief visit. The child did not appear happy to see Mother and appeared sad
during the visit. The caregiver also reported that Mother had moved out of
her sober living and into an apartment complex with some of her old friends,
and he was concerned for her safety and sobriety. The Agency maintained its
recommendation for termination of parental rights and adoption.
In its May 31, 2023 addendum report, the Agency reported that Mother
attended the May 19, 2023 visit, and she and the child played together and
walked to a nearby deli to get something to eat. When the caregiver arrived
toward the end of the visit, the child wanted to leave but agreed to stay for
the five remaining minutes at Mother’s request. Mother was a “no show” for
her May 21, 2023 visit and did not give notice that she was not going to make
it. Mother attended the May 26, 2023 visit, and she and the child played,
talked, laughed, and had a snack.
9
E. Section 366.26 hearing
At the pretrial status conference on May 24, 2023, minor’s counsel
informed the court that the child “wanted the court to know he enjoys visits
with his mother [and] would like to continue seeing her.” Minor’s counsel, as
the child’s guardian ad litem, planned on submitting on the Agency’s
recommendations of termination of parental rights and adoption, but stated
it would check in with the child again “given his young age to the extent he
understands” as he appeared hesitant about the recommendation of adoption
because he wanted to continue visiting with his mother.
The contested section 366.26 hearing was held on May 31, 2023. The
trial court admitted the Agency’s reports dated January 26, April 25, May 24,
and May 31, 2023 without objection. Mother objected to the termination of
her parental rights and requested a lesser plan of guardianship. She did not
present any affirmative testimony or other evidence, but her counsel argued:
“When [M]other does have visitation, she has very positive visitation. The
[Agency] report indicates that there are times when the minor appears to be
sad at the end of the visit. They always have a very good time. The minor is
happy to see the [M]other. When [M]other does have visitation, they are
consistent. There were multiple times when the minor was observed to be
excited to see [M]other and was unhappy he couldn’t leave with her.”
Minor’s counsel submitted on the Agency’s recommendations. She
noted the child felt “safe and protected” with the caregivers, and asked the
court to find by clear and convincing evidence that the child was both
generally and specifically adoptable, his caregivers were willing and capable
of adoption, and the parents did not meet their burden to show the parental-
benefit exception.
10
The Agency joined in minor’s counsel’s argument and also argued that
neither parent established an applicable exception. Counsel acknowledged
that there have been periods of time when Mother attended visitation
“somewhat consistently,” but when looking at the entirety of the case, Mother
had been inconsistent, even since the last hearing. Although the child had a
relationship with his mother, the Agency argued “it would not be detrimental
for him to have that relationship severed given the stability that he gets
through his current placement,” and his caregivers have “remained
committed to maintaining him in their home for in excess of almost two years
now.”
The juvenile court found the child was adoptable and that it was in his
best interests to be adopted. The court also determined that the parental-
benefit exception did not apply and terminated parental rights.
Mother filed a timely appeal.
DISCUSSION
A. General principles
After reunification services have been terminated, the focus of a
dependency proceeding shifts from family preservation to promoting the best
interests of the child, including the child’s interest in a “placement that is
stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295,
306.) At the section 366.26 hearing, the juvenile court has three options:
terminate parental rights and order adoption; appoint a legal guardian for
the dependent child; or order the child be placed in long term foster care.
(§ 366.26, subd. (b).) “Adoption is the preferred permanent placement, and,
in the absence of an enumerated statutory exception, the juvenile court is
required to select adoption.” (In re Fernando M. (2006) 138 Cal.App.4th 529,
11
534 citing In re Jasmine T. (1999) 73 Cal.App.4th 209, 212.) “The statutory
exceptions merely permit the court, in exceptional circumstances [citation], to
choose an option other than the norm, which remains adoption.” (In re
Celine R. (2003) 31 Cal.4th 45, 53, original italics.)
The burden to show that termination of parental rights would be
detrimental to the child under one of the exceptions rests with the parent.
(In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) In this case, Mother
asserted the parental-benefit exception, which required her to establish the
following three elements by a preponderance of the evidence: “(1) regular
visitation and contact, and (2) a relationship, the continuation of which would
benefit the child such that (3) the termination of parental rights would be
detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 636–637
(Caden C.), original italics.) “[I]n assessing whether termination would be
detrimental, 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.” (Id. at p. 632, original italics, citing In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
B. Hybrid standard of review
The first two elements—whether Mother had regular visitation and
contact and a relationship with the child whose continuation would benefit
the child—are essentially factual determinations that are subject to the
substantial evidence standard of review on appeal. (Caden C., supra,
11 Cal.5th at pp. 639–640.) The third element and ultimate decision—
whether termination of parental rights would be detrimental to the child due
to the child’s relationship with his parent—is discretionary and is therefore
subject to an abuse of discretion standard of review. (Id. at p. 640.) When
assessing the application of the parental-benefit exception under this hybrid
12
standard of review, “there likely will be no practical difference in application
of the two standards” as we evaluate the factual basis for the juvenile court’s
exercise of discretion. (Id. at p. 641.)
The appellate court will not “ ‘substitute its own judgment as to what is
in the child’s best interests for the trial court’s determination . . . .
[Citation.]’ ” (Caden C., supra, 11 Cal.5th at p. 641.) The juvenile court’s
determinations will be upheld if supported by substantial evidence, “ ‘even
though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.
[Citations.]’ ” (Id. at p. 640.)
The juvenile court’s ultimate determination of whether termination of
parental rights would be detrimental to the child due to the child’s
relationship with his parent will only be reversed for an abuse of discretion
when “ ‘ “ ‘the trial court has exceeded the limits of legal discretion by making
an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Caden C.,
supra, 11 Cal.5th at p. 641; see also In re Robert L. (1993) 21 Cal.App.4th
1057, 1067 [“The reviewing court should interfere only ‘ “if . . . under all the
evidence, viewed most favorably in support of the trial court’s action, no judge
could reasonably have made the order that he [or she] did” ’ ”].)
In this case, the juvenile court stated “none of the circumstances listed
in section 366.26 subdivision (c)(1) . . . exists in this case that would make
termination of parental rights detrimental to this child.” It did not make any
specific factual findings as to its conclusion that the parent-benefit exception
did not apply in this case, and there is no requirement that it do so. (See
In re A.L., supra, 73 Cal.App.5th at p. 1156 [there is “no requirement . . . that
the juvenile court, in finding the parental-benefit exception inapplicable,
must recite specific findings relative to its conclusions regarding any or all of
13
the three elements of the exception.”].) We affirm the juvenile court and
address its implied findings as to the application of the exception in this case.
(See In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [implied finding by
juvenile court that parents had failed to establish the parental benefit
exception].)
C. First element—regular visitation and contact
The juvenile court determined that the parental-benefit exception did
not apply but did not make any express findings as to each element. Thus, on
appeal, we “draw all appropriate inferences in favor of the judgment below.”
(In re Zeth S. (2003) 31 Cal.4th 396, 405; see also In re Autumn H. (1994)
27 Cal.App.4th 567, 576 (Autumn H.) [we consider the evidence “in the light
most favorable to the prevailing party, giving the prevailing party the benefit
of every reasonable inference and resolv[e] all conflicts in support of the
order.”].)
Substantial evidence supports the juvenile court’s implied finding that
that Mother had not maintained regular and consistent visitation with the
child. Mother did not present any affirmative evidence, and the Agency’s
reports reveal that Mother’s visitation was inconsistent and sporadic during
the 24 months the child was in the care of his maternal grandparents.
The Agency’s April 25, 2023 addendum report unequivocally stated
that Mother “ha[d] not maintained regular and consistent contact with [the
child].” More specifically, Mother’s visitation was inconsistent between
May 20, 2021 and March 14, 2022, and during that time, she missed all
scheduled visits in one month and stopped seeing the child entirely. All of
Mother’s referrals to the family visitation center during this time were closed
as a result of Mother’s failure to respond, cancellations, or no-shows.
14
Although Mother visited the child regularly for almost three months
between March 15, 2022 and June 8, 2022 while enrolled in the KIVA
residential treatment program, she relapsed shortly thereafter and was
arrested and detained in jail until August 17, 2022. Although she would
request video visits during that time, she would not call for the actual video
visit and therefore did not visit with the child for over two months.
During the three-month period between January 10, 2023 and April 14,
2023, Mother’s visits were again regular. However, in the weeks before the
section 366.26 hearing, Mother’s visits were once again inconsistent. Mother
did not attend her scheduled in-person supervised visits on April 28, 2023
and May 5, 2023, was late to her May 12, 2023 visit, and was considered a
“no show” for her May 14, 2023 supervised in-person visit.
Substantial evidence supports the juvenile court’s implied finding that
Mother failed to prove regular visitation and contact with the child. The
dependency proceedings in this matter spanned over two years and there
were at least two extended periods where Mother fell out of contact and failed
to visit entirely. Her inconsistent record of visitation cannot support
application of the parental benefit exception. (See In re J.C. (2014)
226 Cal.App.4th 503, 531 [regular visitation not present when there were
significant lapses in visitation]; In re I.R. (2014) 226 Cal.App.4th 201, 212;
In re C.F. (2011) 193 Cal.App.4th 549, 554 [“Sporadic visitation is insufficient
to satisfy the first prong of the parent-child relationship exception to
adoption.”].)
D. Second element—the child would benefit from continuing the
relationship with Mother
As for the second element, Mother must prove, by a preponderance of
the evidence, that the child would benefit from continuing the relationship.
(§ 366.26, subd. (c)(1)(B); Caden C., supra, 11 Cal.5th at p. 632.)
15
The Agency stated in its April 25, 2023 addendum report that “[the
child] ha[d] a substantial, positive, emotional attachment to [Mother] as
evidenced by [his] reactions to his mother during their visits,” but noted that
he “thrives in the care of his grandparents and spends several days without
seeing his mother without issue.” The Agency went on to conclude that
“although [Mother] and [the child] have a positive relationship, it does not
supersede the benefits of adoption.”
The subsequent Agency reports summarizing Mother’s visitation
during the weeks immediately preceding the contested permanency planning
hearing reveal that Mother’s visits were again inconsistent (she missed four
of the seven scheduled visits), and the child was not always happy to see
Mother nor was he sad when visitation ended, and Mother’s behavior at one
of the visits was apparently disruptive to the child’s emotional well-being.
After cancelling two consecutive visits, Mother was over 35 minutes late to
the May 12, 2023 visitation. She remained an additional 15 minutes after
the visit had ended despite the visitation monitor repeatedly informing her
that the visit was over. After the monitor left, Mother refused to separate
from the child, who began to cry. After the caregiver had picked up the
crying child, Mother followed him to the building, begging him for more time
with the child.
Mother was considered a “no show” for the next in-person visitation on
May 14, 2023, but the caregiver agreed to a brief FaceTime visit. The child
“did not appear happy to see his mother and appeared somewhat sad.” On
May 19, 2023, the child wanted to leave the in-person visit a few minutes
early after he saw his caregiver arrive. Mother was again a “no show” for her
next scheduled in-person visit on May 21, 2023, and although Mother
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appeared for the last reported visitation on May 26, 2023, there was no
mention of the child being sad at the end of that visit.
Mother did not present any affirmative evidence or testimony. Her
counsel merely argued that “[w]hen mother does have visitation,” it is
positive and they “have a good time,” and “[t]here were multiple times when
the minor was observed to be excited to see mother and was unhappy he
couldn’t leave with her.” (Italics added.)
“Interaction between natural parent and child will always confer some
incidental benefit to the child.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Evidence that the child had a substantial, positive, emotional attachment to
Mother and playful and positive visitations does not necessarily prove the
child would benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i), italics added.) “[T]he focus is the child. And the relationship may
be shaped by a slew of factors, such as ‘[t]he age of the child, the portion of
the child’s life spent in the parent’s custody, the “positive” or “negative” effect
of interaction between parent and child, and the child’s particular needs.’
[Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.)
At the time of the section 366.26 hearing, the child had been in the
continuous care of his maternal grandparents for 24 months from age two to
four (half his life).3 His experience of day-to-day interaction, companionship
and shared experiences were with his grandparents. He was thriving in their
care while experiencing sporadic and inconsistent visits with Mother. (See
Autumn H., supra, 27 Cal.App.4th at p. 575 [“The significant attachment
from child to parent results from the adult’s attention to the child’s needs for
physical care, nourishment, comfort, affection and stimulation. [Citation.]
3 In addition, in 2020, prior to the filing of the dependency petition,
Mother left the child with the grandparents for six weeks while she went out
of state.
17
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.]”].) Mother must show more than “loving
contact, an emotional bond with the child, or pleasant visits.” (See In re
Dakota H. (2005) 132 Cal.App.4th 212, 229; see also In re Angel B. (2002)
97 Cal.App.4th 454, 468 [“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”].)
The juvenile court could reasonably conclude, after considering all the
facts and circumstances in this case, that Mother has failed to establish that
the child would benefit from continuing the relationship with her.
Examining the evidence in the light most favorable to the judgment, we
conclude that substantial evidence supports the trial court’s finding that
Mother failed to meet her burden to establish the second element. Even if,
arguendo, Mother was able to prove the second element, in order for the
parent-benefit exception to apply, Mother was required to show, by a
preponderance of the evidence, both of the first two elements—that she had
“maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i), italics
added.)
E. Third element—the benefits of adoption outweigh any detriment
caused by termination
Although Mother’s failure to satisfy the first or the second element
serves to prevent the application of the statutory parent-benefit exception, we
nonetheless address the third element and conclude the juvenile court did not
abuse its discretion by finding that the benefits offered by adoption
outweighed any detriment caused by terminating Mother’s parental rights.
(See In re M.G. (2022) 80 Cal.App.5th 836, 852.)
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“If severing the natural parent/child relationship would deprive a 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.” (Autumn H., supra, 27 Cal.App.4th at
p. 575.) But “[w]hen the benefits of a stable, adoptive, permanent home
outweigh the harm the child would experience from the loss of a continued
parent-child relationship, the court should order adoption.” (In re B.D. (2021)
66 Cal.App.5th 1218, 1225.) We are mindful that such a relationship can
involve “tangled benefits and burdens,” requiring the court to engage in “the
complex task of disentangling the consequences of removing those burdens
along with the benefits of the relationship.” (Caden C., supra, 11 Cal.5th at
p. 634.)
Mother suggests the court lacked sufficient evidence to conclude the
parent-benefit exception did not apply because it did not question the child or
consider a bonding study. Mother ultimately bore the burden to establish the
exception applied (see In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345
(Lorenzo C.)), and she did not attempt to call the child as a witness (see In re
Jennifer J. (1992) 8 Cal.App.4th 1080, 1085) or request a bonding study. (See
Lorenzo C., at p. 1339 [“There is no requirement in statutory or case law that
a court must secure a bonding study as a condition precedent to a
termination order.”].) “ ‘ “We must indulge in every presumption to uphold a
judgment, and it is [Mother’s] burden on appeal to affirmatively demonstrate
error—it will not be presumed. [Citation.]” [Citations.]” ’ ” (In re A.L., supra,
73 Cal.App.5th at p. 1161.) Mother has not demonstrated any error.
Mother’s reliance on In re D.M. (2021) 71 Cal.App.5th 261 is similarly
unavailing. In that case, the Department’s reports gave the court little
evidence about the quality of the visits or how the children felt about the
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father. (Id. at p. 271.) Here, in contrast, the Agency’s reports in this case
provided a detailed account of the child’s visits with Mother and made clear
how the child felt about her.
Severing the child’s relationship with Mother in this case does not
outweigh the benefits he would gain from the stability and security an
adoptive home offers. The child is thriving in maternal grandparents’ home
where he has lived for over two years and where he has expressed a desire to
live. We cannot conclude that preservation of the parent’s rights should
prevail over the Legislature’s preference for adoptive placement. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1349, disapproved on other grounds
in Caden C., supra, 11 Cal.5th at p. 636, fn. 5.) The juvenile court did not
abuse its discretion when terminating Mother’s parental rights.
DISPOSITION
The juvenile court’s May 31, 2023 order is affirmed.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
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