In re O.R. CA4/2

Filed 7/15/21 In re O.R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re O.R. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E076441
Plaintiff and Respondent, (Super. Ct. No. J281467)
v. OPINION
E.R. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Julie E. Braden under appointment by the Court of Appeal, for Defendant and
Appellant, E.R.
Jamie A. Moran under appointment by the Court of Appeal, for Defendant and
Appellant, B.M.
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Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy
County Counsel, for Plaintiff and Respondent.
B.M. (Mother) and E.R. (Father) appeal from the juvenile court’s order
terminating their parental rights to their minor children, O.R. and J.R., and freeing them
for adoption. Mother argues the court erred in failing to apply the beneficial parental
relationship exception to adoption. Father joins Mother’s argument. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2019, the San Bernardino County Department of Children and Family
Services (the Department) received a referral alleging severe neglect of O.R. (born in
2019) and J.R. (born in 2018). The referral alleged that J.R. was observed being held by
a woman unsecured in the back seat of a moving car.
When a social worker spoke with Father about the referral, he stated that he was
living with his parents with Mother and the children. He also reported that he and
Mother got into a physical altercation about a year earlier, but there had been no domestic
violence since then.
When the social worker spoke with Mother about a month later, Mother reported
that she was living in a sober living facility to get “straight” for O.R. and J.R. Mother
reported that the children were staying with their paternal grandparents.
Mother explained that she had been prescribed medication for borderline
personality disorder and major depression. Mother also reported that Father had “an
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anger issue,” he had been arrested for domestic violence against her a few days prior, and
that she wanted to get a restraining order against him. Mother stated that Father went
into the paternal grandparents’ home and began hitting and biting Mother in the
children’s presence. The paternal grandfather told the social worker that he captured the
incident on video and gave the video to the police. Mother told the social worker that
Father had repeatedly violated restraining orders she had obtained. However, the social
worker could find no records confirming that Mother had ever filed for a restraining order
against Father.
In June 2019, Mother authorized the Department to detain O.R. and J.R. The
children were placed with their paternal grandparents. The Department filed petitions on
behalf of the children under Welfare and Institutions Code section 300, subdivisions (b)
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and (j), based on Mother and Father’s domestic violence, Mother’s mental health issues,
and Father’s incarceration. The juvenile court ordered the children detained with their
paternal grandparents.
In August 2019, the Department filed an amended section 300 petition, which
alleged that Father had untreated mental health issues that placed the children at risk.
The Department further alleged that Mother and Father had substance abuse histories.
In September 2019, the Department filed additional information with the juvenile
court. The Department reported that Mother had failed a drug test in August 2019 but
tested negative two weeks later. Mother also had met with a domestic violence
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All further statutory references are to the Welfare and Institutions Code.
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counselor, who reported that Mother brought the children to the meeting, appeared
overwhelmed by the children, and needed help with them. Mother told the counselor that
she could not perform her services because she needed childcare.
After a contested jurisdiction/disposition hearing in October 2019, the juvenile
court sustained the allegations in the amended section 300 petition. The court then
ordered, among other things, reunification services for the parents.
In January 2020, Mother filed a section 388 petition requesting increased
unsupervised visits. Shortly afterward, the Department received a referral that Father had
entered Mother’s sober living home without authorization and assaulted her. Mother did
not report the incident to the Department or the police. At the Department’s request, the
juvenile court ordered Mother’s visits with the children be supervised.
In February 2020, the Department recommended that Mother’s section 388
petition be denied and Mother and Father no longer be allowed to have unsupervised
visits with the children because of ongoing domestic violence between Mother and
Father. The Department reported Father’s assaults on mother at the sober living facility.
Although Mother told the Department that she was no longer seeing Father, she had
continued her relationship with him, which was frequently violent.
Mother withdrew her section 388 petition and the juvenile court ordered further
domestic violence services for Mother. About a week later, Father asked the social
worker to waive his parental rights because he “wasn’t right in the head” and “‘doctors
had told him he had done too much damage to his brain with drugs.’”
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In its report for the six-month review hearing in April 2020, the Department
recommended the termination of family reunification services and scheduling of a section
366.26 hearing to establish a permanent placement plan of adoption for O.R. and J.R.
The Department explained that Mother and Father were not benefitting from services and
had not made progress with their domestic violence, substance abuse, or mental health
issues. The Department also reported it was “difficult to assess” Mother’s progress “due
to her dishonesty and mental health issues that prevent her from benefitting from services
fully.” Mother remained “adamant that her mental health diagnosis is not an issue.” In
the Department’s view, Mother “is incapable of protecting herself, and [Father] is still a
danger to [Mother] and the children.”
The Department reported that the children continued to live with their paternal
grandparents and were doing well. The paternal grandparents were willing to adopt the
children if reunification was not possible.
At the parents’ request, the juvenile court set the matter for a contested section
366.26 hearing. In its report for the hearing, the Department recommended adoption of
O.R. and J.R. by their paternal grandparents. The Department reported that the children
were bonded to their grandparents, who wished to adopt them.
After hearing testimony from Mother and Father, and counsel’s arguments at the
section 366.26 hearing, the juvenile court found that O.R. and J.R. were adoptable. The
juvenile court also found that Mother and Father failed to prove the beneficial parental
relationship exception applied. The juvenile court reasoned that although the parents had
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consistent contact with the children and “nice visits” with them, Mother and Father did
not occupy a parental role in their lives. The juvenile court therefore terminated Mother
and Father’s parental rights to O.R. and J.R. and freed them for adoption by their parental
grandparents.
III.
DISCUSSION
Mother’s sole argument on appeal is that the juvenile court erroneously found that
the beneficial parental relationship exception did not apply. Father joins Mother’s
argument and raises no other issues on appeal beyond arguing that if the order
terminating Mother’s parental rights is reversed, then the order terminating his parental
rights must also be reversed. We find no error.
The beneficial parental relationship exception applies when “[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)). “This exception can only be
found when the parents have maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship.” (In re Anthony B. (2015) 239
Cal.App.4th 389, 395 (Anthony B.).) These are sometimes referred to as the first two
prongs of the exception’s test. Even after a parent proves the existence of a beneficial
parental relationship, however, the juvenile court must also find that such relationship
constitutes “a compelling reason for determining that termination would be detrimental to
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the child.” (§ 366.26, subd. (c)(1)(B).) That is sometimes referred to as the third prong
of the test.
To establish that the beneficial parental exception applies, the parent must show
three things: “The parent must show regular visitation and contact with the child, taking
into account the extent of visitation permitted. Moreover, the parent must show that 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
the parent must show that terminating that attachment would be detrimental to the child
even when balanced against the countervailing benefit of a new, adoptive home. 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 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 beneficial parental
exception applies incorporates both the substantial evidence and abuse of discretion
standards. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply the substantial
evidence standard of review to the first two prongs of the exception and the abuse of
discretion standard to the third prong. (Ibid.)
The first prong of beneficial parental relationship exception analysis “is
quantitative and relatively straightforward, asking whether visitation occurred regularly
and often.” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) The juvenile court found
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that Mother and Father maintained regular visitation and contact with O.R. and J.R.
Mother and Father thus satisfied the first prong of the beneficial parental relationship
exception. (Ibid.)
Mother argues that she occupied a parental role in the children’s lives, but neither
she nor Father offers any argument about the third prong of the beneficial parental
relationship exception. Mother and Father make no attempt to explain why their
relationships with O.R. and J.R. are “so significant and compelling . . . that the benefit of
preserving [them] outweighed the stability and benefits of adoption.” (Anthony B., supra,
239 Cal.App.4th at p. 396.)
O.R. and J.R. were removed primarily because of Mother and Father’s domestic
violence issues, which continued throughout the dependency proceedings. O.R. and J.R.
are safe and well cared for in their prospective adoptive home. O.R. and J.R. have lived
with their prospective adoptive parents—their grandparents—for almost their entire
young lives. They are bonded with their grandparents, who are committed to adopting
them and providing them with a permanent, safe, and stable home.
On the other hand, there is ample reason to conclude that Mother and Father
cannot properly care for and protect the children because of their ongoing domestic
violence. At oral argument, counsel for Mother suggested that her continued struggles
are not relevant to deciding whether the beneficial parental exception applies under
Caden C. But our Supreme Court held in Caden C. that “issues such as those that led to
dependency often prove relevant to the application of the exception” because they can
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“speak to the benefit (or lack thereof) of continuing the relationship.” (Caden C., supra,
11 Cal.5th at p. 637.) Mother does not dispute that her domestic violence with Father,
which sometimes occurred in front of the children, was harmful to them. It is therefore
“relevant to the detriment from terminating [her] parental rights.” (Ibid.)
Given Mother and Father’s continued domestic violence, the children’s bond with
their grandparents, and the safe home their grandparents have provided them for almost
their entire lives, the juvenile court reasonably found that the benefit the children would
derive from a parental relationship with Mother and Father does not “outweigh the
benefit [they] would gain in a permanent home with new, adoptive parents.” (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.) Mother and Father failed to show anything
more than that they had frequent contact with the children that raised no concerns. But a
loving and friendly relationship is “‘not enough to outweigh the sense of security and
belonging an adoptive home would provide.’” (In re Jason J. (2009) 175 Cal.App.4th
922, 938.) The juvenile court thus did not abuse its discretion in finding that there was
no “compelling reason for finding that termination [of parental rights] would be
detrimental to the child[ren]. [Citations.]” (In re Anthony B., supra, 239 Cal.App.4th at
p. 395.) We therefore conclude the juvenile court did not err in terminating Mother and
Father’s parental rights to O.R. and J.R. and freeing them for adoption.
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IV.
DISPOSITION
The order terminating Mother and Father’s parental rights to O.R. and J.R. is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
FIELDS
Acting P. J.
MENETREZ
J.
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