In re A.N. CA2/8

Filed 11/20/20 In re A.N. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re A.N. et al., Persons Coming B305208
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 18CCJP02285A–C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.O.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Daniel Zeke Zeidler, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Stephen D. Watson, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Appellant F.O. appeals from the juvenile court orders
terminating her parental rights and freeing the minors for
adoption.1 She argues the juvenile court abused its discretion in
failing to find the “beneficial parental relationship exception” to
adoption applies. (Welf. & Inst. Code, § 366.26, subd.
(c)(1)(B)(i).)2 We affirm.
FACTS
On April 10, 2018, the Los Angeles County Department of
Children and Family Services filed a dependency petition on
behalf of five-year-old A.N., four-year-old S.N., and three-year-old
G.N. pursuant to section 300, subdivisions (a) and (b). The
petition alleged the minors were at risk because of the parents’
history of violent altercations in front of them. On March 15,
2018, the father strangled the mother, causing her to lose
consciousness; he also threatened to kill her and burn down the
minors’ house. On April 6, 2018, the mother punched the father
with a closed fist, and he scratched her eye. The father had a
history of drug abuse, including methamphetamine, and the
mother would allow him to have access to the children in
1 Appellant F.O. previously filed a petition for extraordinary
relief under rule 8.452 of the California Rules of Court. (F.O. v.
Superior Court, B299479.) The petition was denied on the
ground it was inadequate. (Glen C. v. Superior Court (2000) 78
Cal.App.4th 570, 577–584.)
2 All statutory references, unless otherwise designated, are
to the Welfare and Institutions Code.
2
violation of a domestic violence restraining order and a criminal
protective order. The minors were detained and placed with a
paternal great aunt and her partner. Monitored visits were
ordered.
On July 2, 2018, the juvenile court sustained the petition,
declared the minors dependents of the court, and provided
reunification services and monitored visits. The minors were
provided cognitive behavioral services beginning in January
2019, “to reduce trauma related symptoms of anxiety and
nightmares.” A.N. was “yelling and not listening to her elders in
placement and at school.” She was receiving trauma focused
therapy “to address the PTSD that she is experiencing.” S.N. was
“experiencing flashbacks” and was having “anger outbursts and
shutting down (refusing to talk), especially after contact with
mother.” G.N. had “symptom of anxiety, (i.e. feeling nervous and
fearful in response to talking about mommy/event)” and was
having “difficulty falling asleep, flashback[s] and nightmares.” In
March 2019, it was reported that the mother’s monitored visits
with the minors “have been sporadic.”
On June 4, 2019, mother was found in partial compliance
with her court-ordered case plan, and reunification services were
terminated. One month later, reunification services for the
father were also terminated.3
On November 12, 2019, the Department submitted its
report for the section 366.26 hearing. The minors continued to
reside with the paternal great aunt and her partner; they felt
loved and cared for. “The children report that they like visiting
with mother [twice a month] but enjoy being able to return to
their home with caregivers.” Telephone calls with the mother are
3 Presumed father S.N. is not a party to this appeal.
3
monitored. The two oldest “have reported that they speak with
mother on the phone, but at times do not want to speak with
her.” In August 2019, the oldest “cried because she was afraid
that CSW would return her to the care of mother . . . .” It was the
recommendation of the Department that all parental rights be
terminated and the minors be placed for adoption.
In the Last Minute Information for the Court, the
Department reported that on September 30, 2019, it met with the
mother who stated that, “she did not know why she was being
punished when she was the victim. CSW asked mother if she
acknowledged her role in failing to protect her children by
remaining in a harmful relationship and exposing her children to
harmful situations. Mother stated that she would take the
responsibility of what father did to her in front of the children but
she was also a victim.” The caregivers reported that on October
26, 2019, “mother told [A.N.] that she was going to live with her
again and needed to tell the judge that she wanted to live with
her. [A.N.] shared with CSW that mother scared her . . . .” The
Monday after the visit, A.N. became ill at school. “It appears that
A.N. often feels ill after having visits with mother and going to
the [nurse’s] offices is a recurring behavior.” The October 26 visit
also made the monitor uncomfortable. The mother was on her
telephone and at times was attempting to make contact with her
boyfriend who was taking pictures from the upper level of the
mall. The monitor was no longer willing to monitor the visits.
The caregivers also reported that “mother’s phone calls are not
consistent and at times mother will attempt to call after the
scheduled times.”
The 366.26 hearing was finally scheduled for March 12,
2020. In the Last Minute Information for the Court, the monitors
4
for the mother’s visits, which are held in the Department’s
offices, “have stated that the visits are unhealthy as the children
do not listen to mother. On one of the visits, [a monitor] reported
that [G.N.] asked mother to teach him how to spell, ‘I hate you’
and then gave the letter to mother and on the same visit spit on
mother.” The minors “have reported that they enjoy visits with
mother now because mother promises them toys and candy.” The
therapist indicated that the minors had progressed well and
therapy was no longer needed.
At the hearing, the mother testified that the children seem
happy to see her at these visits, call her “mom,” and are
disappointed when the visits are over. She brings them snacks
and little gifts and talks with them about what is going on in
their lives. She knows their likes and dislikes and tries to help
them deal with situations when they fight over a toy or become
argumentative. She talks with the minors over the telephone
when they want to. When asked about doctor’s appointments and
other health related issues, she said she is aware “like 50
percent. I’m not always aware of their appointments or—but
when I am made aware of it, I will follow up and, you know, how
did it go.” The mother also submitted a progress report from
Abundance Guidance Center. It was offered to show she has
learned skills that would show she has the ability to interact
appropriately with the minors.
The mother argued the court should find the beneficial
parental exception applies and not terminate the mother’s
parental rights. The Department recommended that the juvenile
court select adoption as the permanent plan and terminate
mother’s parental rights. Minor’s counsel supported the
Department and also asked the court to select adoption and
5
terminate parental rights. On March 12, 2020, the court found
the minors adoptable, concluded the exception did not apply, and
terminated the mother’s parental rights.
DISCUSSION
At the section 366.26 hearing, the juvenile court “‘shall
terminate parental rights and order the child placed for adoption”
if it finds that “it is likely the child will be adopted.” (In re Celine
R. (2003) 31 Cal.4th 45, 53.) Here, the paternal aunt and her
partner have indicated they wish to adopt the minors.
There is an exception to this rule known as the “beneficial
parental relationship exception.” Subdivision (c)(1)(B)(i) of
section 366.26 requires termination of parental rights “unless”
the parent has “maintained regular visitation and contact with
the child and the child would benefit from continuing the
relationship.” Here, the court found that “mother has maintained
regular and consistent visitation and contact,” but then stated
that, “I can’t find that that parental role and relationship
outweighs the benefits of permanence in adoption for the
children, nor that it would be detrimental to terminate that
relationship . . . .”
The analytical framework is well established. First, the
burden was on the mother to prove “her relationship with the
children would outweigh the well-being they would gain in a
permanent home with an adoptive parent. [Citation.] Evidence
of frequent and loving contact is not enough to establish a
beneficial parental relationship. [Citation.] The mother must
also show she occupies a parental role in the children’s lives.” (In
re Noah G. (2016) 247 Cal.App.4th 1292, 1300 (Noah G.); see also
In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [makes no
6
sense to forgo adoption when no real parental relationship
shown].)
Second, the standard of review in “evaluating the juvenile
court’s determination as to the factual issue of the existence of a
beneficial parental relationship, [courts] review for substantial
evidence. [Citation.] But whether termination of the parental
relationship would be detrimental to the child as weighed against
the benefits of adoption is reviewed for abuse of discretion.”
(Noah G., supra, 247 Cal.App.4th at pp. 1300–1301.)
Finally, “[i]n the context of the dependency scheme
prescribed by the Legislature, we interpret the ‘benefit from
continuing the [parent/child] relationship’ exception to mean the
relationship promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents. In other words, the
court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the
security and the sense of belonging a new family would confer. If
severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that
the child would be greatly harmed, the preference for adoption is
overcome and the natural parent’s rights are not terminated.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, the juvenile court found by clear and convincing
evidence that the beneficial parental relationship exception did
not apply. This was not a close case. It is evident from the record
that there was no parent/child relationship between the mother
and any of her children, much less a substantial, positive
emotional attachment. The minors had been traumatized by the
history of extreme domestic violence. After successful trauma
7
therapy, A.N. at best felt sorry for the mother; the younger
siblings were impressed at the monitored visits with promises of
toys and candy. In contrast, the minors spoke of safety and
feeling cared for with the caregivers, traits one associates with a
parental relationship. Nothing in the record, and in particular
nothing in the mother’s testimony at the hearing, suggested she
had a parental relationship with the minors.
The mother points to In re E.T. (2018) 31 Cal.App.5th 68,
where the reviewing court found the mother had met the
parental relationship standard. But that case is clearly
distinguishable. There, the mother did all her programs to
maintain her sobriety and to become a better parent. (Id. at p.
77.) The children were very attached. (Ibid.) Here, mother had
completed a residential treatment program but did not complete
her domestic violence program due to excessive absences. She
did not show a commitment to improving herself in a way that
would allow her to become a better parent. It was more about
keeping the minors from father. Settling accounts with the other
parent is not a compelling reason to apply the exception.
Appellant’s backup argument is that the court should have
ordered a permanent plan of legal guardianship. It does not
appear this argument was raised below and therefore it has been
waived. Even if the issue had been properly preserved, it does
not survive critical analysis. Once the juvenile court determines
parental rights are terminated, it must select adoption as the
preferred choice if adoption is likely. It cannot select a less
secure and permanent placement such as legal guardianship. (In
re Teneka W. (1995) 37 Cal.App.4th 721, 728.)
Finally, appellant argues this appeal has “critical
importance. The question is how we treat battered women and
8
how we will continue to treat them in the future.” Mother has
continually argued she was the victim of domestic violence and
that there is something perverse in an order terminating her
parental rights but allowing father “access” to the minors because
the paternal great aunt and her partner will likely be the
adoptive parents. Even if the premise were accepted, the focus of
this appeal is whether the court selected the appropriate
permanent plan and whether the exception applied as to the
mother. Why the minors were taken into the dependency system,
and whether the father might have “access” to them after
adoption, is irrelevant.
DISPOSITION
The orders of the juvenile court terminating parental rights
are affirmed.
SALTER, J.
We Concur:
GRIMES, Acting P. J.
STRATTON, J.

Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
9