In re E.E. CA2/6 ( 2024 )

Filed 5/13/24 In re E.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re E.E., a Person Coming 2d Juv. No. B331640
Under the Juvenile Court (Super. Ct. No. 23JV00050)
Law. (Santa Barbara County)
SANTA BARBARA COUNTY
CHILD PROTECTIVE
SERVICES,
Plaintiff and Respondent,
v.
G.E., et al.,
Defendants and Appellants.
G.E. (father) and A.B. (mother) appeal from the orders of
the juvenile court denying their Welfare and Institutions Code1
All further statutory references are to the Welfare and
1
Institutions Code.
section 388 petitions and terminating their parental rights.2
They contend the juvenile court erred when it denied their
petitions without a full evidentiary hearing. They also contend
the juvenile court erred when it found the parental-benefit
exception did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
Facts and Procedural Background
Father and mother have a long history with the
dependency system due to their chronic substance abuse and
criminality, including the termination of their parental rights to
their older children. In February 2023, Santa Barbara County
Child Welfare Services (CWS) detained four-day-old E.E. after
she tested positive at birth for amphetamines,
methamphetamines, methadone, and fentanyl. Mother admitted
to using fentanyl in the days prior to giving birth. E.E. was
placed with paternal aunt.
Mother submitted on jurisdiction and agreed to waive her
rights. The juvenile court took judicial notice of parents’ prior
dependency matters and found the allegations in the amended
section 300 petition to be true. (§ 300, subds. (b)(1), (j).)
At the disposition hearing, the juvenile court declared E.E.
a dependent of the court, bypassed reunification services for both
parents pursuant to section 361.5, subdivisions (b)(10), (b)(11),
and (b)(13), and set the matter for a section 366.26 hearing.
In September 2023, father and mother each filed a section
366.26 offer of proof asserting the parental-benefit exception
applied. They also filed section 388 petitions requesting
reunification services. Parents asserted a change in
circumstances based on their participation in services, substance
2 Father joins in mother’s arguments pursuant to
California Rules of Court, rule 8.200(a)(5).
2
abuse treatment, and parenting classes, among other things.
They also asserted E.E. was bonded to parents and would benefit
from continuing the relationship.
The juvenile court conducted a hearing on whether to hear
evidence of the merits of parents’ section 388 petitions. After
carefully considering the proposed change of order and hearing
argument, the juvenile court denied the petitions holding the
parents failed to establish both the change in circumstances and
best interest requirements.
The juvenile court proceeded to the section 366.26 hearing.
The parties stipulated E.E. was adoptable and that parents had
maintained regular visitation. After hearing testimony and
considering the evidence presented, the juvenile court found E.E.
was likely to be adopted and that parents had not proven the
parental-benefit exception applied. The juvenile court
terminated father and mother’s parental rights.
Discussion
Mother appears to challenge the juvenile court’s earlier
orders as to jurisdiction and disposition. Her challenges are
barred because they are untimely. (See Cal. Rules of Court, rule
8.406(a)(1).)
Section 388 petition
Father and mother next contend the juvenile court erred by
failing to grant a full evidentiary hearing on their section 388
petitions.
To be entitled to an evidentiary hearing on a section 388
petition, the parent must make a prima facie showing of (1) a
change of circumstances or new evidence, and that (2)
modification of the prior order would be in the best interests of
the minor child. (In re Ernesto R. (2014) 230 Cal.App.4th 219,
3
223; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see Cal.
Rules of Court, rule 5.570(d)(1), (e).)
A prima facie case is made where the allegations in the
petition demonstrate that these two elements are supported by
probable cause. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
“It is not made, however, if the allegations would fail to sustain a
favorable decision even if they were found to be true at a hearing.
[Citations.] While the petition must be liberally construed in
favor of its sufficiency [citations], the allegations must
nonetheless describe specifically how the petition will advance
the child’s best interests. [Citations.]” (Ibid.)
We review the juvenile court’s summary denial of a section
388 petition for abuse of discretion. (In re Angel B. (2002) 97
Cal.App.4th 454, 460.) Under this standard, we will not disturb
the decision of the juvenile court unless the juvenile court
exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318.) If two or more inferences can
reasonably be deduced from the facts, we have no authority to
substitute our decision for that of the juvenile court. (Id. at p.
319.)
No Abuse of Discretion
Father and mother contend the juvenile court abused its
discretion when it denied their section 388 petitions because it
relied on inapposite caselaw and applied the wrong standard of
“preponderance of the evidence” rather than the “prima facie”
test. In so doing, they contend the juvenile court deprived them
of due process. We disagree.
Although parents are correct that the juvenile court applied
the wrong standard, the error was harmless. The juvenile court
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must hold an evidentiary hearing on a section 388 petition only if
the proposed evidence, if credited, might make a difference in the
court’s ruling. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; In
re Edward H. (1996) 43 Cal.App.4th 584, 593-594.)
Here, it is not reasonably likely that additional testimony
would have persuaded the juvenile court to grant parents’
petitions. The juvenile court expressly stated that it had
“carefully” reviewed parents’ section 388 petitions, the court file,
and past reports. As the juvenile court explained, even if it were
to “find everything true,” it still could not find that “extend[ing]
permanency,” and “delay[ing] [E.E.’s] adoption” so parents could
have another “shot” at reunification would be in E.E.’s best
interest. Thus, any error was harmless. (Cal. Const., art. VI, §
13.)
Moreover, after the juvenile court has bypassed or
terminated reunification services, the focus of the case shifts from
the parents’ interest in the care, custody, and companionship of
the child to the needs of the child for permanency and stability.
(In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Angel B.,
supra, 97 Cal.App.4th at p. 464.) At this point, there is a
rebuttable presumption “that continued foster care is in the
child’s best interests.” (In re Aaliyah R. (2006) 136 Cal.App.4th
437, 448.) That presumption is even more difficult to overcome,
where as here, the permanent plan is adoption. (Id. at pp. 448-
449.)
Father contends this presumption is not insurmountable.
As to E.E.’s best interests,3 father contends: (1) he has dedicated
3 Mother did not address the “best interests” prong of the
section 388 analysis but joined father’s arguments in her reply
brief. (Cal. Rules of Court, rule 8.200(a)(5).)
5
himself to improving his parenting skills, (2) E.E.’s relationship
with her caregivers will not be “hurt” by offering parents
reunification services because the concurrent planning parent is
committed to maintaining parents’ relationship with E.E., and (3)
father and mother are more than “friendly stranger[s]” because
they attended all of E.E.’s medical appointments, cared for her
during their visits, changed her diaper, fed her, rocked her,
shared “tummy time” with her on the floor, comforted her, and
saw to her needs.
In determining whether the section 388 petition makes a
prima facie showing that the proposed order would promote the
best interests of the minor child, the juvenile court may consider
several factors, including the seriousness of the problem that led
to the dependency, the strength of the relationship between the
minor child to both her parents and her caretaker, and the degree
to which the problem leading to the dependency has been
removed or ameliorated. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 530-532.)
Here, father and mother have “extensive” histories of
substance abuse and failing to reunify with their children. E.E.
was detained from parents at just four days old after she tested
positive for multiple substances at birth. She has lived all of her
young life with her current caregivers who love her and have
provided her with a safe and nurturing home. She is thriving
and her caretakers are committed to adopting her. On these
facts, the juvenile court did not err in denying parents’ section
388 petition without a full evidentiary hearing.
Because we conclude parents did not make a prima facie
showing that the requested modification would be in E.E.’s best
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interest, we need not consider the other prong of the required
prima facie showing – a genuine change of circumstances.
Beneficial Parent-Child Relationship Exception
Mother, joined by father, contends the juvenile court erred
by finding the parental-benefit exception to adoption did not
apply.
“‘At a permanency plan hearing, the [juvenile] court may
order one of three alternatives: adoption, guardianship or long-
term foster care. [Citation.] If the dependent child is adoptable,
there is a strong preference for adoption over the alternative
permanency plans.’ [Citation.]” (In re B.D. (2021) 66 Cal.App.5th
1218, 1224.) If the juvenile court finds that the child is
adoptable, it must terminate parental rights unless a statutory
exception applies. (§ 366.26, subd. (c)(1).)
One exception to this rule is the parental-benefit exception,
which allows the juvenile court to avoid termination if it “finds a
compelling reason for determining that termination would be
detrimental to the child” because “[t]he parents have maintained
regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i).) To avoid termination of parental rights under this
exception, a parent must show, by a preponderance of the
evidence, three things: (1) regular visitation and contact with the
child, (2) the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship, and (3)
termination of the attachment would be detrimental to the child.
“When the parent has met that burden, the parental-benefit
exception applies such that it would not be in the best interest of
the child to terminate parental rights, and the court should select
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a permanent plan other than adoption.” (In re Caden C. (2021)
11 Cal.5th 614, 636-637 (Caden C.).)
Our review of the juvenile court’s ruling on whether the
parental-benefit exception applies incorporates two standards of
review. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply
the substantial evidence standard to the first two prongs of the
exception and abuse of discretion to the third prong. (Ibid.)
Here, the parties stipulated that E.E. was adoptable and
that for purposes of the parental-benefit exception, the parents had
maintained regular visitation and contact. (§ 366.26, subd.
(C)(1)(B)(i).) However, the parents failed to satisfy the second two
elements.
Beneficial Relationship
In determining whether the “‘child would benefit from
continuing the relationship,’” the focus is on the child. (Caden C.,
supra, 11 Cal.5th at p. 632.) The exception must be examined on
a case-by-case basis, taking into account “a slew of factors” which
affect a parent/child bond 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.’” (Ibid., quoting In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Here, the juvenile court acknowledged that father and
mother loved E.E. and had a bond with her. But the juvenile
court did not find E.E. had a “substantial, positive emotional
attachment” to them given her young age and that she has spent
all of her life in the care and custody of the resource parent.
Instead, parents were “friendly visitors” with whom E.E. enjoyed
contact but the relationship did not go beyond that.
We conclude substantial evidence supports the juvenile
court’s finding as to this element.
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Detriment Caused by Termination
“When [the juvenile court] weighs whether termination
would be detrimental, . . . the question is just whether losing the
relationship with the parent would harm the child to an extent
not outweighed, on balance, by the security of a new, adoptive
home.” (Caden C., supra, 11 Cal.5th at p. 634.) “‘If severing the
natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental
rights.” (Id. at p. 633.)
Here, the juvenile court properly weighed the benefits of
adoption and found no evidence of detriment. On these facts,
there was no abuse of discretion.
Disposition
The orders denying parents’ section 388 petition and
terminating parental rights are affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
9
Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Kate M. Chandler, under appointment by the Court of
Appeal, for Defendant and Appellant, father, G.E.
Vincent W. Davis, for Defendant and Appellant, mother,
A.B.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Snr. Deputy County Counsel, for Plaintiff and Respondent.