In re N.R.

Filed 1/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re N.R., a Person Coming B322164
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 18CCJP03467A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Daniel Zeke Zeidler, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
**********
Appellant V.R. is the mother of now 11-year-old N.R.
Mother appeals the juvenile court’s order terminating her
parental rights as to N.R. Mother argues that the order is
unsupported by clear and convincing evidence of parental
unfitness or child detriment. Specifically, she argues that
termination cannot be predicated on earlier, unchallenged
findings of parental unfitness or child detriment as to N.R.
because, after N.R. and her younger half sister R.L. were
removed from mother’s custody, the juvenile court returned R.L.
to mother. According to mother, R.L.’s return to mother
“rebutted” the earlier findings as a matter of law. If these earlier
findings are disregarded, mother continues, no substantial
evidence otherwise supports termination of her parental rights as
to N.R.
We are unpersuaded by the logic of mother’s argument.
Ascertainment of parental fitness or child detriment is a child-by-
child inquiry. That the juvenile court found it appropriate to
return R.L. to mother’s custody does not undermine its earlier
findings regarding mother’s relationship with N.R. The juvenile
court was therefore entitled to rely on those earlier findings, in
accordance with Cynthia D. v. Superior Court (1993) 5 Cal.4th
242 (Cynthia D.), in terminating mother’s parental rights as to
N.R. We affirm.
BACKGROUND
Mother has two children, N.R. and R.L. N.R. and R.L. are
half sisters. R.L. is not part of this appeal.
These proceedings began in early 2018, when N.R. was six
and R.L. was 10 months, following six separate referrals to the
Los Angeles County Department of Children and Family Services
(Department). These referrals included multiple alleged
2
incidents of physical and emotional abuse of N.R. by mother. No
allegations of similar abuse towards R.L. were reported.
However, other allegations raised concerns about the safety of
both children. These included that mother had various adults at
her home using drugs and alcohol; some guests mother brought
into the home were violent; mother was using drugs and
prostituting herself; mother was assaulted in the home by
acquaintances in the children’s presence; and the home was dirty
and lacked sufficient food.
After an investigation, the Department filed a petition with
the juvenile court in May 2018. The petition contained counts
relating to both children under Welfare and Institutions Code1
section 300, subdivisions (a) and (b)(1), based on alleged physical
abuse of N.R. by mother, and under subdivision (b)(1), based on
R.L.’s father’s criminal history. Additional counts relating only to
R.L. were under subdivision (d), based on her father’s criminal
history, and under subdivision (j), based on alleged physical
abuse of N.R. by mother.
Mother denied the allegations of the petition at her initial
appearance. The juvenile court ordered the children detained but
released them to mother’s home. At the jurisdictional and
dispositional hearing in July 2018, mother pled no contest to the
petition as amended. The juvenile court sustained the petition as
to N.R. under section 300, subdivision (b)(1) based on mother’s
inappropriate discipline of N.R. It sustained the petition as to
R.L. under subdivisions (b)(1) and (j) based on mother’s
inappropriate discipline of N.R., and under subdivisions (b)(1)
1 Undesignated statutory references are to the Welfare and
Institutions Code.
3
and (d) based on R.L.’s father’s criminal history. The juvenile
court left the children in mother’s custody and ordered services.
Less than three months later, in October 2018, the juvenile
court removed the children from mother’s home based on
subsequent and supplemental petitions under sections 342 and
387 alleging that mother suffered from emotional problems that
placed her children at risk of harm. Mother had made threats to
her Regional Center case worker, and she allowed a maternal
uncle who had molested maternal aunt as a child to have
unlimited access to the children. Further, mother had violated
court orders by allowing R.L.’s father to have access to the
children. There was also an incident in which maternal uncle
was stabbed at mother’s home in the children’s presence. The
fracas resulted in a physical injury to N.R., but mother did not
seek medical care for her. The Department observed that mother
had become “increasingly agitated and verbally abusive to
[N.R.],” and that N.R. “started to pick up mother’s behaviors and
[wa]s exhibiting behavioral issues.” Mother denied the
allegations, but the juvenile court ordered the children removed
from mother. The children were placed in foster care.
On November 26, 2018, the juvenile court sustained
amended allegations in the subsequent and supplemental
petitions. The court found “by clear and convincing evidence
[that] remaining in the home of the mother would pose
substantial danger and risk of detriment to the children’s
physical, health, safety, protection, or physical or emotional well-
being.” Mother was ordered to receive monitored visitation and
to participate in services.
According to the Department’s July 2019 status review
report, N.R. was hospitalized for suicidal ideation in May 2019.
4
She and R.L. were placed with maternal great-aunt following
N.R.’s release from the hospital. It was N.R.’s fourth placement
since she was detained from mother. She was hospitalized again
later that month and again in June 2019, after she complained of
auditory hallucinations that were telling her to kill R.L.
Maternal great-aunt was struggling to care for N.R. and
sometimes required police intervention to deal with her
behaviors. In contrast, maternal great-aunt reported “she ha[d]
not had any issues with [R.L.].” Maternal great-aunt asked for
the children to be removed from her home in July 2019 due to
housing issues.
At the time of the July 2019 status review, mother had
moved into temporary housing provided by the Regional Center,
and she was working at a toy factory. Mother had completed her
parenting, counseling, and anger management programs but
chose to continue participating in the programs. She was actively
participating in her services and receiving substantial support
from the Regional Center.
Mother consistently visited the children. The visits
generally went well, except that mother had a difficult time
managing N.R.’s behaviors and required assistance from the
social worker. The social worker noted that mother “is a trigger”
for N.R. During N.R.’s psychiatric hospitalizations, mother
frequently made her upset.
N.R.’s behaviors continued to be problematic, and she had
to be re-placed multiple times over a period of several months.
“Most times, the caregivers asked for [N.R.] to be immediately
picked up after less than a week in the home. It was then
determined that due to [N.R.’s] behaviors and the level of care
5
needed, the Department needed to pursue a more intensive
placement with a caregiver trained to work with [N.R.’s] needs.”
In September 2019, N.R. was placed with a highly trained
caregiver through the Intensive Services Foster Care program.
This was her 11th placement. Because of the high level of care
she required, N.R. and R.L. could not be placed together. In
contrast to N.R.’s challenges, R.L. was reported to be “adjusting
and doing well” in the home of her caregiver, with only limited
concerns about intellectual and social development.
The Department’s November 2019 status review report
noted that N.R. had not expressed any recent suicidal ideation,
but she expressed “homicidal ideation when she is upset.” N.R.’s
therapist was working to help her decrease her tantrums, but
those tantrums made it difficult to take her out in the community
and created safety risks. No similar issues were reported as to
R.L.
As of November 2019, mother had complied with most
aspects of her case plan. However, the Department did not
recommend that the children be returned to her as mother
remained a “trigger” to N.R. and did not seem to understand the
extent of N.R.’s significant needs.
In early November 2019, N.R. was suspended from school
for taunting and screaming at other children. The following day,
she had another psychiatric hospitalization which lasted 12 days.
She was diagnosed with “Sever[e] Bi-Polar Disorder.” She was
hospitalized again in late December 2019 after assaulting her
foster sibling, punching holes in the wall of her foster home, and
assaulting her in-home counselor. This hospitalization lasted a
week. R.L. experienced no similar issues.
6
N.R.’s therapist reported that N.R. had daily verbal
outbursts, physical aggression, and made threats to others. She
was not responding well to therapy. She continued to be
triggered by visits with mother, and the therapist believed
beginning conjoint therapy with mother would not benefit N.R.
until she was more stable. N.R. continued to be “more triggered
as a result of conversations and visits with mother.” No similar
issues were reported as to R.L.
As of January 2020, mother was still living in the Regional
Center facility, which did not allow overnight visitation with N.R.
and R.L. or permit them to reside with her. Mother was still
looking for appropriate housing.
N.R.’s foster mother reported that her behaviors escalated
after visits with mother. Mother still did not appear to
understand the severity of N.R.’s issues. And she still was often
unable to manage N.R.’s behaviors during visits and struggled to
handle N.R. and R.L. together. According to the foster mother,
N.R. was working to control her behavior but continued to be
aggressive with her foster siblings.
N.R. was hospitalized again in early January 2020. Later
that month, her caregiver gave a 14-day notice to have N.R.
removed from her home. N.R. was initially placed in shelter care
because the Department could not find an available placement.
She was placed with a new caregiver at the end of January. She
continued to have aggressive tantrums and physical
confrontations with her caregiver and other children.
As of the Department’s April 2020 status review report,
mother had still not secured housing where the children could be
placed with her. She continued to participate in programs and
was still employed. Mother was making some progress with
7
achieving treatment goals in individual therapy. However, she
still struggled to control N.R.’s aggressive behaviors during visits
and required help in managing the children and ensuring their
safety. In one instance, N.R. threw a tantrum during which she
pushed R.L.’s high chair. Visit monitors had to intervene to
protect R.L. from harm.
The Department reported that “many people who have
observed mother with her children believe that mother is not able
to adequately and safely care for both children due to mother’s
own limitations, along with high level of needs the children have.
It is clear to the Department that mother deeply loves and cares
for her children. However, for the safety and well-being of her
children, the Department feels that without significant, 24 hour
assistance from the regional center, the Department cannot
recommend that the children return to the care of the mother.” It
recommended that reunification services be terminated.
The review hearing was continued due to the COVID-19
emergency.
According to the Department’s August 2020 supplemental
report, N.R. was struggling with virtual learning. Moreover, she
had broken her caregiver’s glass coffee table and washing
machine, and made a hole in the wall. N.R.’s therapist reported
that she had great difficulty coping with her negative emotions,
and the therapist was worried she would regress significantly if
reunified with mother. No similar issues were reported as to R.L.
At the August 24, 2020 review hearing, the juvenile court
continued mother’s reunification services and set the matter for a
section 366.25 permanency planning hearing on February 23,
2021. Despite mother’s “substantial” progress toward alleviating
the causes necessitating placement, the court again found by
8
“clear and convincing evidence that return of the child[ren] to the
physical custody of [mother] would create a substantial risk of
detriment to the child[ren] . . . .”
According to the Department’s November 2020 report,
N.R.’s caregiver asked that N.R. be removed from the caregiver’s
home in October 2020. N.R. had been terminated from her
daycare program due to her daily disruptive behavior. N.R. was
transitioned back to her maternal great-aunt’s home, where R.L.
was also placed. This was N.R.’s 13th placement. Maternal
great-aunt reported that N.R. was doing well in her home.
Mother had moved into her own apartment by late October
2020. She was receiving parenting instruction through the
Regional Center. The Department recommended that the
children remain with maternal great-aunt, with the goal of
gradually transitioning them back to mother’s care. The
contemplated transition called for the children to be placed with
mother separately to “reduce[] the likelihood of mother becoming
overwhelmed” with two children.
In November 2020, mother started to have overnight
weekend visits with the children. Regional Center staff were
present to assist mother for the duration of the visits. Mother’s
parenting partner reported that the visits generally went well.
However, on several occasions, N.R. refused to visit or did not
want to stay overnight. N.R. reported that mother tried to force
N.R. to speak with R.L.’s father on the phone, even though N.R.
did not want to. No similar issues were reported as to R.L.
In February 2021, the Department reported that N.R. and
R.L. were progressing in the care of maternal great-aunt. N.R. in
particular was “doing better in virtually all areas of her life.
[She] attended school more regularly and . . . started to like
9
school. While she . . . had some tantrums, there [were] no reports
of suicidal ideations or hospitalizations as a result. [She] clearly
ha[d] a very strong bond with [maternal great-aunt] and it
appear[ed] that [maternal great-aunt was] able to meet the high
level of needs that [N.R.] has.”
N.R. told the social worker she did not want to live with
mother. She wanted to be adopted by maternal great-aunt.
According to N.R.’s therapist, N.R. experienced regressions in her
behavior after visits with mother. She became upset when
anyone tried to discuss living with mother. She also refused to
participate in conjoint counseling with mother.
Despite all of the training she had received since 2018,
mother still lacked insight about N.R.’s needs. She attributed
N.R.’s problems to “guilt that [N.R.] feels for being the reason
that the children were removed from [mother’s] care.”
Nevertheless, the Department recommended that the children be
returned to mother “if [she] continues to have significant
assistance from the regional center.”
N.R.’s court-appointed special advocate (CASA) reported
that N.R. was doing very well in maternal great-aunt’s care. Her
tantrums had subsided, and her behavior was greatly improved.
N.R. consistently told the CASA that she wanted to remain
placed with maternal great-aunt and did not want to be returned
to mother. N.R. did not feel “comfortable” with mother, and N.R.
was worried that mother was not ready to care for her. N.R.
reported that mother was speaking with R.L.’s father, and she
was worried “her life will go back to ‘the way it was’ with her
mother prior to her removal.”
Maternal great-aunt also told the CASA that N.R. was
resistant to contact with mother, and that she would have
10
tantrums to avoid visitation. In one instance, when mother came
to maternal great-aunt’s home to pick up N.R. for a visit, N.R.
refused to go. Mother yelled at maternal great-aunt and used
profane and threatening language, blaming her for N.R.’s refusal
to see mother.
N.R. refused to speak about mother during her therapy
sessions. Whenever the therapist tried to discuss mother, N.R.
would shut down. Mother and N.R. had two conjoint therapy
sessions, and mother appeared irritable and did not respect
N.R.’s boundaries. N.R.’s therapist believed that mother had
historically been dismissive of N.R.’s needs, depriving N.R. of the
opportunity to develop self-expression skills, the resulting
deficiencies being especially apparent in her mother’s presence.
The CASA reported that the unanimous consensus among
those professionals involved in N.R.’s case was “that [mother] is
not ready [for reunification with N.R.], and [N.R.] would likely
suffer as a result.” The CASA recommended termination of
mother’s reunification services, and that N.R. remain placed with
maternal great-aunt, where she was thriving.
The section 366.25 permanency planning hearing was held
in March 2021. N.R. told the juvenile court she wanted to stay
placed with maternal great-aunt, even if R.L. were returned to
mother’s care. The court found both that N.R. wanted to remain
with the maternal-great aunt and that she did not want to be
returned to mother. The latter, the court reasoned, supported a
finding of substantial risk in the context of the record. On this
basis, it concluded that “return of [N.R.] to the physical custody of
the mother would pose substantial risk of detriment to her
physical and/or mental health creating a continuing necessity for
and appropriateness of the current placement outside of the
11
mother’s care.” The court terminated reunification services, and
set a section 366.26 selection and implementation hearing. The
court acknowledged that it was “very torn” because of mother’s
“tremendous growth,” but that the court was concerned about
mother’s continued contact with R.L.’s father and the trauma to
N.R. of being returned to mother’s care.
In contrast, the juvenile court ordered R.L. placed in
mother’s home under supervision of the Department.
Shortly thereafter, mother filed a notice of intent to file a
writ petition as to N.R. We stayed the selection and
implementation hearing to permit review but denied the writ
petition on January 4, 2022.
In July 2021, the juvenile court held a review hearing for
R.L. It found that “mother ha[d] complied with the case plan and
resolved the issues that brought [R.L.] into the system. [R.L.] is
no longer at risk.” It terminated jurisdiction with a custody order
granting mother legal and physical custody.
The juvenile court held a review hearing regarding N.R. in
September 2021. The court had before it a report that N.R. was
attending overnight visits with mother on a semi-regular basis.
No significant issues were reported regarding visits, but N.R. had
refused to attend some. She remained adamant that she “d[id]
not want to live with mother again” and did not “feel comfortable”
with mother. The Department reported that N.R. was “far more
stable” while placed with maternal great-aunt who was able to
attend to N.R.’s “significant needs.” The Department maintained
its recommendation of adoption by maternal great-aunt as N.R.’s
permanent plan. The juvenile court found continued jurisdiction
over N.R. was necessary and found “by clear and convincing
12
evidence that return of [N.R.] to the physical custody of [mother]
would create a substantial risk of detriment to [N.R.] . . . .”
In a March 2022 status review report, the Department
reported that N.R. had graduated from intensive clinical services
and was participating in weekly individual counseling. She
remained comfortable in maternal great-aunt’s home, and she
wanted to be adopted by maternal great-aunt. N.R. appeared to
respect the authority of maternal great-aunt more than anyone
else.
The Department reported that, during an extended visit
with mother in December 2021, N.R. said she wanted to live with
mother. But that desire was short lived. Later in the same visit,
mother told N.R. she wanted to “get rid of her” and then
proceeded to ignore N.R. Following the visit, N.R. told a social
worker she still wanted to live with maternal great-aunt, and she
no longer wanted to visit mother at all. Despite that, after the
December 2021 visit, N.R. attended some weekend visits with
mother.
The Department further reported that it was in the process
of investigating a referral from January 2022 related to mother’s
care of R.L. The Department also reported that mother was
investigated for neglect of R.L. in 2021, but the referral was
closed at the end of the year because the Department was unable
to make contact with mother and R.L.
In March 2022, the juvenile court continued the
section 366.26 hearing to May 2022 for a bonding study to assess
N.R.’s bonds with R.L. and with mother. The bonding study
evaluator opined that there would not be a deleterious impact on
N.R. if parental rights were terminated. The evaluator noted
that N.R. did not appear to have a connection with mother, and
13
mother and N.R. were not affectionate with one another. The
evaluator said there appeared to be tension and disconnect
between N.R. and mother, and mother was detached and
unaffectionate with N.R. Similarly, N.R. did not initiate affection
toward R.L.
N.R. told the bonding study evaluator that she was afraid
to spend the night with mother, and she did not want to live with
mother. The bonding study evaluator noted that N.R.’s “general
theme in regard[] to living with mother pertains to her feeling
unsafe.” When mother left the bonding study, she did not initiate
contact with N.R. before she left the room. The bonding study
evaluator opined that mother was insensitive to N.R.’s needs and
blamed others for N.R.’s emotional problems. In contrast, the
bonding study evaluator observed that mother’s relationship with
R.L. was positive and described the reciprocal affection between
mother and R.L. The bonding study evaluator noted that mother
was affectionate and caring toward R.L. and opined that mother
and R.L. had a mutual connection.
The juvenile court proceeded with the section 366.26
hearing in May 2022. The court considered the entire contents of
the court file and mother’s testimony. Counsel for mother argued
that the sibling-relationship and the parental-benefit exceptions
to adoption precluded the termination of mother’s parental
rights. Counsel for N.R., joined by counsel for the Department,
asked the court to terminate mother’s parental rights because no
exception to adoption applied.
Upon the conclusion of argument, the juvenile court found
by clear and convincing evidence that N.R.’s return to mother’s
custody would be detrimental to her. The court stated: “And that
really is a big part of this case, considering the mother was able
14
to regain custody of [R.L.], but not of [N.R.]. And a big part of
that was the extent that it would be traumatic to [N.R.] to return
her to the mother, which really is a part of the dynamics of their
relationship, that the court needs to be looking to that
relationship.” The court further relied on the bonding study and
said it would be “pretty much impossible for this court to find
that the relationship is one that it would be detrimental to the
child to sever.” The court terminated parental rights, finding by
clear and convincing evidence N.R. was adoptable and no
exception to adoption applied.
Mother filed a timely notice of appeal from the termination
of her parental rights.
DISCUSSION
Mother makes a constitutional challenge to the juvenile
court’s order terminating her parental rights as to N.R.
According to mother, the order violated her due process rights in
a parental rights proceeding, as established in Santosky v.
Kramer (1982) 455 U.S. 745 (Santosky), because it was
unsupported by clear and convincing evidence of mother’s
parental “unfitness.” She argues, for the first time on appeal,
that earlier findings otherwise sufficient to support termination
had been “rebutted” by the court’s decision to return R.L. to her
care and could no longer be applied to N.R. Importantly, mother
does not challenge the earlier findings that she claims have been
rebutted as a matter of law.
The Department argues that mother forfeited her
argument; that if she did not, it is without merit; and even if it
were meritorious, the juvenile court made the requisite findings
as to N.R. after it returned R.L. to mother’s custody.
15
We consider mother’s argument, find it unmeritorious, and
affirm on that basis.
1. Forfeiture
A claim of error on appeal may be deemed forfeited if the
objection was not raised in the trial court. (In re T.G. (2013)
215 Cal.App.4th 1, 13–14.) However, “ ‘application of the
forfeiture rule is not automatic.’ ” (Id. at p. 14.) When a party
raises an important constitutional claim, we may exercise our
discretion to consider its merits. (Ibid.) Due process claims
relating to the adequacy of findings to support termination of
parental rights have been recognized as sufficiently important to
evade forfeiture. (See ibid.; see also In re Gladys L. (2006)
141 Cal.App.4th 845, 849 [declining to apply forfeiture where no
findings made against presumed father before termination of
parental rights]; In re Frank R. (2011) 192 Cal.App.4th 532, 539
[“we are reluctant to enforce the waiver rule when it conflicts
with due process”].) We therefore decline to apply the forfeiture
rule in this case.
2. Governing Law and Standard of Review
In most cases, due process prohibits judicial termination of
parental rights absent clear and convincing evidence of parental
unfitness. (Santosky, supra, 455 U.S. at p. 769; but see
Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1130
[requirement inapplicable to rights of noncustodial parent in
guardianship proceeding].)
Parental unfitness is a generic term that describes grounds
for denying a custodial parent, or one otherwise fully committed
to their parenting responsibilities, custody of their child. (See
Guardianship of Ann S., supra, 45 Cal.4th at pp. 1130–1131.)
“The terms [states use] to describe parental unfitness are
16
linguistically variable and include parents who have failed,
refused or neglected to provide proper or necessary care; children
who are neglected, deprived, or abused; children who are in need
of supervision; or the parents who have failed to maintain contact
with the child or to plan for his or her future.” (In re Heather B.
(1992) 9 Cal.App.4th 535, 556.)
While the terminology varies, a finding of parental
unfitness requires some fault or shortcoming on the part of the
parent. (Guardianship of Ann S., supra, 45 Cal.4th at p. 1130
[“[W]hen a custodial parent faces termination of his or her rights
. . . there is no dispute that the best interest of the child would
not be a constitutionally sufficient standard for terminating
parental rights” (citation omitted)]; Reno v. Flores (1993) 507 U.S.
292, 304 [“ ‘[T]he best interests of the child’ is not the legal
standard that governs parents’ or guardians’ exercise of their
custody: So long as certain minimum requirements of child care
are met, the interests of the child may be subordinated . . . to the
interests of the parents”].) However, the necessity of parental
fault or shortcoming does not preclude consideration of other
factors. The best interest of the child, while not determinative, is
nonetheless an “important consideration.” (In re Heather B.,
supra, 9 Cal.App.4th at p. 556.)
Under current California dependency law, the standard for
parental fitness is expressed in terms of “detriment” to the child.
(In re Frank R., supra, 192 Cal.App.4th at p. 537 [parental
unfitness established upon “ ‘a finding that awarding custody of a
dependent child to a parent would be detrimental to the child’ ”].)
Detriment is considered under the constitutionally minimum
clear and convincing evidence standard at the removal stage.
(Id. at pp. 538–539; see also Cynthia D., supra, 5 Cal.4th at
17
p. 253.) At that juncture, the juvenile court may find detriment
where, among other things, clear and convincing evidence shows
“[t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s
. . . physical custody.” (§ 361, subd. (c)(1).) The question of
detriment is revisited at subsequent hearings, at which the
county welfare department bears the burden to show, by a
preponderance of the evidence, that returning the child to the
care of the parent “would create a substantial risk of detriment to
the safety, protection, or physical or emotional well-being of the
child.” (§ 366.21, subd. (e)(1) [six-month review], id., subd. (f)(1)
[12-month permanency hearing], § 366.22, subd. (a)(1) [18-month
permanency review].)
The detriment determination is necessarily made by
reference to circumstances of the family involved, giving due
consideration to the faults or shortcomings of the parents as well
as the specific needs of the child. (See, e.g., In re Jasmon O.
(1994) 8 Cal.4th 398, 426 [noting evidence of detriment based on
“father’s unfitness to meet [daughter’s] extraordinary needs”]; see
also id. at p. 437 (dis. opn. of Baxter, J.) [“I do not dispute that
the finding of unfitness should be based on the circumstances of
the particular parent and child rather than on some abstract
ability to parent”].)
The dual considerations of parental capability and child
needs permit—and indeed require—a child-by-child
determination of parental fitness. Whereas a parent may be “fit”
to have custody of one child, the same may not be true of a sibling
18
with different needs. “Parental rights to one of several children
may be constitutionally severed because it would be detrimental
to that particular child to maintain them, while it would not be as
to the others.” (In re Cody W. (1994) 31 Cal.App.4th 221, 226.)2
Even though a finding of detriment is a prerequisite to
terminating parental rights pursuant to section 366.26, the
detriment finding need not be made at the section 366.26
hearing. This is because “the purpose of the section 366.26
hearing is not to accumulate further evidence of parental
unfitness and danger to the child, but to begin the task of finding
the child a permanent alternative family placement.”
(Cynthia D., supra, 5 Cal.4th at p. 253.) The juvenile court’s
prior findings of detriment that brought it to the point of
considering termination of parental rights are sufficient to satisfy
due process for termination. (Id. at pp. 254–256.)
3. Analysis
Mother argues that Cynthia D.’s prior findings rule cannot
operate here, where the juvenile court returned R.L. to her
custody between the date of the children’s removal and the date
the court terminated mother’s parental rights as to N.R.
According to mother, R.L.’s return implied she “was again a fit
2 This concept is not unique to California. For example, the
Supreme Court of Massachusetts concurs that “ ‘[o]ne who is fit
to parent in some circumstances may not be fit if the
circumstances are otherwise. A parent may be fit to raise one
child but not another.’ ” (R.D. v. A.H. (2009) 454 Mass. 706, 715.)
Likewise, the District of Columbia’s high court recognizes that
“[f]itness must be determined in reference to the specific child at
issue, taking account of any special needs or extenuating
circumstances—‘[a]n individual may be a fit parent for one child
but not for another.’ ” (In re J.O. (D.C. 2017) 174 A.3d 870, 882.)
19
parent as to [R.L.],” as a consequence of which “the juvenile
court’s prior finding in [N.R.]’s case of unfitness/detriment was
rebutted.”
The problem with mother’s argument (aside from the lack
of authority to support it) is that it treats her children as
fungible. They are not. As set forth above, parental fitness is not
a set of skills cognizable in the abstract. Put another way, there
is no “general” parental fitness, as mother calls it. Rather,
parental fitness must be determined by assessment of a
particular parent’s capacity to nurture and care for a particular
child. (See In re Cody W., supra, 31 Cal.App.4th at p. 226; see
also In re Jasmon O., supra, 8 Cal.4th at p. 426.) The record in
this case illustrates why.
Our lengthy recitation of the facts reflects that parenting
N.R. poses greater challenges than does parenting R.L. The
children’s respective histories of foster placements are
instructive. N.R. required new placements on multiple occasions
because experienced, licensed foster parents, some supported by
Intensive Services Foster Care teams, were unable to control or
tolerate her behavior. No such reports were made as to R.L.
As generally challenging as parenting N.R. proved to be,
the challenges were magnified for mother. Mother and N.R.’s
relationship is burdened by a history of conflict and emotional
baggage that caused mother to be a “trigger” for N.R. Contact
with mother exacerbated N.R.’s behavioral issues. The same was
not true for R.L.
And, despite extensive documentation of N.R.’s peculiar
needs and training in addressing them, mother failed to accept
their severity or causes and continued to struggle with them.
Mother was unable to control N.R.’s aggressive behavior to such a
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degree that it at times endangered R.L. The Department
reported a professional consensus that mother was ill-equipped to
handle N.R. and R.L. together.
The differences between the children and mother’s ability
to parent them were reflected in the juvenile court’s orders from
the outset of the proceedings. N.R. was adjudicated a dependent
based on mother’s resort to “inappropriate discipline” as she
struggled with N.R.’s behavior. It sustained the petition as to
R.L. based on mother’s same inappropriate discipline of N.R. (as
well as R.L.’s father’s criminal history). And when the juvenile
court made the decision to terminate jurisdiction as to R.L.,
because the issues that brought R.L. into the dependency
proceedings had been resolved, the court continued jurisdiction as
to N.R. Mother’s relationship with N.R. remained fraught to
such a degree that the court viewed the trauma to N.R. of
returning to her mother’s home as posing a substantial risk of
detriment to her physical and/or mental health.
In short, the record reflects manifest differences between
N.R.’s and R.L.’s needs and mother’s ability to parent each child.
Throughout the proceedings, the juvenile court carefully
considered this evidence and the respective risks the children
faced in mother’s care. We therefore reject mother’s argument
that R.L.’s return to mother rebutted or otherwise limited the
vitality of prior findings of mother’s unfitness to parent N.R. or
the detriment to N.R. of remaining in, or being returned to,
mother’s custody. Notwithstanding its order returning R.L. to
mother’s custody, due process permitted the juvenile court to rely
on such findings at the section 366.26 hearing in accordance with
Cynthia D., supra, 5 Cal.4th at pages 254–256.
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DISPOSITION
The juvenile court’s order terminating parental rights as to
N.R. is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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