In re W.R. CA5

Filed 4/17/23 In re W.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re W.R., a Person Coming Under the Juvenile
Court Law.
KINGS COUNTY HUMAN SERVICES F084912
AGENCY,
(Super. Ct. No. 21JD0021)
Plaintiff and Respondent,
v. OPINION
MELVIN R.,
Defendant and Appellant.
In re W.R., a Person Coming Under the Juvenile
Court Law.
KINGS COUNTY HUMAN SERVICES F085119
AGENCY,
(Super. Ct. No. 21JD0021)
Plaintiff and Respondent,
v.
JENNIFER H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Jennifer Lee
Giuliani, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant
and Appellant Melvin R.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant Jennifer H.
Diane Freeman, County Counsel, Risé A. Donlon and Thomas Y. Lin, Deputy
County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellants Jennifer H. (mother) and Melvin R. (father) are the parents of now
nine-year-old W.R. (the child), who is the subject of a dependency case. Mother
challenges the juvenile court’s orders issued at a contested Welfare and Institutions Code
section 366.261 hearing that resulted in mother’s parental rights being terminated.
Mother contends the juvenile court erred in finding W.R. adoptable and considering
improper factors in relation to the beneficial parent-child relationship exception. Mother
also argues that the juvenile court erred in denying her section 388 petition for further
reunification services without an evidentiary hearing. Father joins in mother’s
arguments.2
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
On February 21, 2021, the Kings County Human Services Agency (agency)
received a referral after the child was admitted into Valley Children’s Hospital (hospital)
due to a seizure. The child was identified as a nonverbal, gastrostomy tube (g-tube)
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2Father withdrew the arguments in his opening briefing regarding alleged errors
related to compliance with the Indian Child Welfare Act.
2.
dependent, and developmentally delayed child with a history of seizures. The child’s
weight classified her as “failure to thrive” at the 22nd percentile, and concerns were
expressed that mother did not understand the extent of the child’s delays or appropriate
g-tube feeding procedures. Her current glucose level indicated that she was not being
fed, which put her at risk for seizures.
A social worker responded to the hospital and met with mother at the child’s
hospital room. Mother was not consistently engaged with the social worker during the
meeting, and she failed to answer the social worker’s questions for long periods of time.
The child’s glucose levels were estimated to be 42 at the time emergency services
transported the child to the hospital. Mother indicated a healthy level is between 75 and
100, but she denied having the means to monitor the child’s glucose levels. Mother
claimed she was unaware of the cause of the child’s seizure, and she suggested the child
may have become diabetic due to her seizure medication, Keppra.
The child had approximately three seizures since being prescribed Keppra in
January. Mother responded, “ ‘millions of children have seizures all over the world,’ ”
when the social worker asked if mother was concerned about her daughter’s seizures.
Mother expressed feeling “overwhelmed” as she attended to the needs of the child, the
child’s sibling, and father. The child removed her g-tube on January 30, 2021, which
required mother to take her to the hospital. The child’s recommended diet consisted of
five cans of “PediaSure” per day.
At that time, the child tested positive for pneumonia and COVID-19, and mother
reported the child’s appetite changed following the illness. The child became fussy and
did not want to eat. The Central Valley Regional Center (CVRC) recently began having
contact with the family, and mother recently discontinued participating in bi-weekly
therapy. Mother did not want additional services from the agency because she felt it
would be overwhelming to her.
3.
On the following day, a social worker spoke with the reporting party on the phone
to gather additional information. The reporting party discovered that mother had not
followed up with appointments for a cardiologist for the last two years, and the child had
a heart murmur. Mother also failed to follow up with a neurologist to determine if the
child had an underlying seizure disorder. The reporting party believed mother had
cognitive delays due to concerning statements that mother would make. Mother was
present with the child for the majority of the time, but the reporting party was unsure if
the child was “too much for the mother to handle.” The child’s nurse was concerned that
mother did not understand the severity of the child’s condition, and mother denied
knowing how to clean the child’s g-tube.
An agency social worker met with father at the home of his adult daughter. Father
did not know why the agency was involved, and he believed the child was in the hospital
because she had the flu. He was unable to remember the child’s medical condition, but
he claimed she was “ ‘growing out of it.’ ” Father explained how the child had a seizure
in her sleep, which was her third seizure. Mother was identified as the child’s primary
caretaker, and father rejected the social worker’s suggestion that mother missed any
medical appointments for the child. Father recently had a stroke, and a nurse came to
help him twice per week. He was willing to cooperate with the agency and indicated the
social worker could check on the family as long as she needed to. Father denied that
either himself or mother had any mental health diagnoses or criminal history. Both
mother and father smoked marijuana five or six times each week.
The social worker also interviewed the child’s then nine-year-old brother, J.R.,
while father was present. J.R. helped mother with feeding the child, and J.R. believed the
child had seizures when she did not eat. J.R. was worried about the child still being in
the hospital and his father’s cancer. Throughout the interview, J.R. appeared nervous,
and the interview was terminated after father urinated while sitting in a nearby chair.
Father’s adult daughter explained that mother dropped father and J.R. off at her home
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when mother took the child to the hospital. The adult daughter was not able to assist the
family due to her full-time job and family obligations.
To complete the investigation, and assist the family, the social worker contacted
mother by phone. Mother acknowledged that the child had missed “some feedings”
because she was not hungry when she had COVID-19. She claimed the child grunted
when mother tried to feed her through her g-tube, which indicated the child was not
hungry. The social worker eventually set an appointment to meet with mother at her
home.
A nurse from the hospital informed the social worker by phone that an MRI ruled
out any neurological concerns for the child. The child would remain in the hospital
because she was underweight. The hospital had concerns with mother’s credibility. The
nurse was confused by mother’s statement that the child was not hungry because she
could not eat food orally. The child’s occupational therapist walked into the hospital
room and observed mother give the child a piece of shrimp. This was cause of concern
because the child was diagnosed with an oral aversion that causes her to struggle with
consuming food by mouth. Any attempts to feed the child were to be done with food in
puree form because the child could choke on solid food. The nurse indicated she would
have a doctor provide additional information regarding the child’s condition.
Dr. Alexandria Curry contacted the social worker by phone to provide background
for the child’s medical condition. The child had an oral aversion and received a g-tube in
2017. Mother was advised to feed the child through the g-tube five times per day. A
team of doctors would reconvene to determine the child’s recommended amount of
“PediaSure” if she did not gain weight with the appropriate nutrition in the hospital. The
child was underweight for her age and diagnosed with failure to thrive. However, Curry
did not believe the child would be considered failure to thrive if she was consistently
receiving the appropriate amount of nutrition at home.
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There were also concerns expressed by Curry that mother did not understand that
she was responsible to provide the child with appropriate nutrition due to the child’s
developmental delays. It was reported that mother had a history of missing
appointments, and mother admitted to lying about how often she had been feeding the
child to medical staff. Mother admitted to missing one or two feedings per day because
the feedings were “too stressful” and she was tired. Curry believed mother would
continue to not feed the child consistently when mother felt overwhelmed or stressed.
On February 24, 2021, the social worker and law enforcement contacted mother at
her residence to address the referral allegations. Mother acknowledged that she lied to
doctors regarding the amount she was feeding the child because she was afraid to be
honest. She claimed there was a lot on her plate when the child’s missed feedings began.
The child’s feedings were not missed every day, and mother believed the child was not
starving. She felt the child needed to be part of her own recovery and want to get better.
Mother became angry as the social worker emphasized the child’s failure to thrive
diagnosis, and she stated, “ ‘[the child] is not failing to thrive she . . . just gets really
stressed.’ ” Law enforcement and the social worker determined that a protective hold
would be placed on the child and J.R. (collectively, the children).
The agency filed a petition alleging the child was described by section 300,
subdivision (b)(1). The petition alleged the child was at substantial risk of suffering
serious physical harm as a result of the parents’ failure to provide adequate medical care
and nutrition to the child. The petition further alleged that there was a substantial risk
that J.R. would be similarly neglected by the parents pursuant to section 300,
subdivision (j). At the detention hearing held on March 1, 2021, the juvenile court
ordered the children removed from their parents, and it set a combined jurisdiction and
disposition hearing for March 22, 2021.
6.
Jurisdiction and Disposition
The agency’s jurisdiction and disposition report recommended that the allegations
in an amended petition be found true, the children remain in out-of-home care, and family
reunification services be provided to mother and father. The children were placed in
separate resource family homes. The child’s care provider was a nurse who works with
developmentally delayed children, and she was trained to meet the child’s needs. There
were three sets of relatives interested in placement of the children, and the agency was
assessing the relatives through the resource parent approval process.
The report noted the parents’ prior child welfare history beginning with four
referrals from May 2009 to May 2010 that were found to be inconclusive. The referrals
involved allegations that mother left the child’s siblings either without supervision or
with unsafe persons while mother was using drugs or alcohol. In May 2013, there was a
report that mother was overwhelmed and the child was at risk of failure to thrive in the
weeks following her birth. An August 2013 referral alleged the child was hospitalized
twice for failure to thrive at only three months of age. It was claimed that mother did not
wake at night to feed the child, and mother believed that medical staff were “ ‘overly
worried.’ ” The Alameda County Department of Children and Families initiated
dependency proceedings in September 2013 after mother refused to bring the child to the
hospital for her weight loss. The child received a “Nasal Gastro Tube” to administer her
feedings, and she was returned to mother and father on a plan of family maintenance in
October 2012. The dependency was terminated in January 2016.
The agency received a referral in August 2019 due to medical staff’s concerns that
mother did not seek timely medical treatment after the child pulled out her g-tube. The
child had a g-tube since she was two years old, and mother claimed the g-tube came out
accidentally. The referral was deemed inconclusive because the agency was unable to
contact the family. On January 26, 2021, a referral was received regarding the child’s
suffering of seizures, and there were reported concerns that mother would not follow
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through with medical care. On February 4, 2021, the child was hospitalized after her
g-tube was pulled out of her stomach. It was reported that the child was malnourished
and mother appeared distraught. Both referrals were found to be inconclusive.
The agency received a phone call from hospital staff on February 26, 2021, and it
was reported that mother stopped the child’s feeding when no one was in the hospital
room. Mother claimed something in the feeding bag would cause the child to become
sick, and she believed the child was hospitalized due to COVID-19 and pneumonia.
Hospital staff informed the agency that mother was not allowed to visit with the child at
the hospital after she became confrontational and was asked to leave on February 26,
2021. Mother participated in a supervised visit with the children on March 12, 2021.
Mother watched a movie with the children, and the visitation supervisor had to advise
mother not to feed the child regular food.
In March 2021, mother was participating in therapy sessions by phone every two
weeks, but she did not take any of her prescribed medications for mental health. She
informed the social worker that the allegations were all lies and that she could feed and
support her children. Mother was referred to providers for a mental health assessment
and nurturing families class on March 17, 2021.
The jurisdiction and disposition hearing was eventually set for a contested hearing
on April 2, 2021. An addendum report filed by the agency on March 30, 2021, indicated
the child’s care provider had no issues with the child’s feedings. Father had to be
reminded not to give the child regular food during a March 19, 2021 supervised visit.
Mother completed a feeding through the child’s g-tube during the visit. On March 26,
2021, mother refused to interact with an agency supervisor when the visitation supervisor
questioned mother about the child chewing on something.
At the contested jurisdiction and disposition hearing held on April 2, 2021, mother
testified that she was aware of the child’s medical and developmental issues. She denied
having any difficulty following medical advice for the child, and she claimed to only
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have difficulty with the child’s feeding schedule when the child had COVID-19. Mother
did not believe that the child’s most recent seizure was related to improper feedings. She
attributed the child’s lack of weight gain to her developmental disability, and she
described the child’s weight gain as a “very slow process.” Mother acknowledged that
she was the child’s sole care provider, and she was the only one feeding the child through
the g-tube at home.
After the conclusion of testimony and argument, the juvenile court found the
allegations in a second amended petition to be true and ordered the children to remain in
out-of-home care with family reunification services to be provided to mother and father.
The service objectives of the case plan required mother to meet the child’s physical,
emotional, medical, and educational needs, accept responsibility for her actions, and
comply with medical treatment. Mother was also responsible for completing any
recommended mental health treatment, parenting program, and demonstrating her ability
to feed the child as recommended by doctors. A six-month review hearing was set for
September 23, 2021.
Family Reunification Period
The agency’s six-month status review report, filed September 13, 2021,
recommended that family reunification services continue for both parents. The children
were placed together with relatives on April 9, 2021. The relative care provider
expressed that it can be overwhelming to care for the children at times, but she was
willing to care for the children because they were family. The child gained six pounds
since being placed with the relative care provider, and her vocabulary was expanding.
The relative care provider described the child’s seizures as staring with fear for one to
two minutes followed by confusion. The child was diagnosed with cardio-facial
cutaneous syndrome.
The child was hospitalized in August 2021 due to complications with her g-tube.
Medical staff was concerned with mother’s ability to understand their recommendations,
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and doctors were not confident that mother was able to provide “ ‘informed consent’ ” for
a surgery. Mother often claimed to understand, but she delayed medical procedures by
not providing consent timely. Mother indicated the doctors should just feed the child by
mouth, however, the child was only able to pass liquids by mouth since the age of two. It
was her belief that the child would learn to eat by mouth if given the chance.
Both parents were minimally compliant with their case plan. The agency was
unable to obtain information regarding mother’s progress in mental health services.
Mother had not demonstrated the skills learned from her parenting class during her
visitations with the children. Mother and father engaged in arguments in front of the
children during visits. Mother struggled with the child’s many tantrums during visitation,
and the child became more upset as mother became easily frustrated with her. The
relative care providers had to intervene during the child’s tantrum in order to calm the
child.
At a Child Family Team Meeting, mother claimed she questioned doctors and
delayed giving consent for the child’s treatment because she believed there were
alternative treatments available for the child. Mother became upset and left the meeting
after indicating that she would not be giving consent for future surgeries. The agency
determined that return of the children to mother’s care would be detrimental based upon
mother’s failure to understand the importance of following the recommendations of the
child’s medical professionals. Any delays in the child’s medical treatments were seen as
potentially fatal due to her failure to thrive diagnosis.
The six-month review hearing was set for a contested hearing at the request of
father for October 5, 2021. On September 28, 2021, the agency requested authorization
for the child to undergo a medical procedure requiring general anesthesia. Mother
declined to consent to the procedure, and hospital staff did not believe that mother either
understood or was fit to consent to the procedure. Mother continued to ask the medical
staff to feed the child through her mouth despite repeatedly being informed that the child
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cannot be fed. The juvenile court granted the request as recommended that the
surgical/medical treatment be authorized by the child’s medical team at Valley Children’s
Hospital. At the contested six-month review hearing on October 5, 2021, father withdrew
his contest and all parties submitted on the agency’s recommendation. The juvenile court
ordered continued family reunification services for mother and father, and it set the next
review hearing for March 29, 2022.
The report prepared for the 12-month review hearing recommended that family
reunification services be terminated for mother and father and a section 366.26 hearing be
set. The children remained placed in the home of their relative care provider, and the
child was discharged from the hospital on October 8, 2021, after treatment for an
abdominal distension and small bowel obstruction. The child was diagnosed with
Noonan’s Syndrome and Cardiofaciocutaneous Syndrome. She was tolerating her
feedings and doing well since her discharge from the hospital.
Mother and father were living together in an apartment while mother acted as
father’s caretaker due to his ongoing medical care. During the review period, mother
sporadically attended counseling and failed to take her prescribed medication. She did
not follow up with her psychiatrist because she did not believe he could help her.
Mother’s therapist informed the social worker that mother lacked the ability to fully
understand the extent of certain situations. The lack of understanding was believed to be
from a possible learning disability or untreated mental health.
During supervised visits, mother had a difficult time starting the child’s scheduled
feeds, and she needed several reminders from others to comply. Mother was observed
asking the child if she wanted to eat in order to determine if she should feed the child
instead of following her schedule. The child’s relative care providers were concerned
that mother had not demonstrated her ability to meet the child’s medical needs by
complying with the feeding schedule and changing her colostomy bag. The agency was
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also concerned with mother’s inability to manage the children’s behaviors, accept support
from service providers or family, and cope in stressful situations.
J.R. expressed his desire to return to the home of his parents, but he enjoyed living
with the relative care providers. Both children were observed to have a strong bond with
the relative care providers, and the concurrent plan for both children was adoption. The
relative care providers wanted nothing but the best for the children, and they desired a
plan of adoption.
A contested 12-month review hearing was set for April 6, 2022, at the request of
mother and father. At the contested hearing, both parents testified regarding their
progress in services. Mother testified that she completed her parenting class, obtained a
new therapist, and was taking medication for her mental health. She felt comfortable
feeding the child without any assistance, and she believed she was ready for unsupervised
visitation with the child. Mother’s counsel requested the juvenile court continue family
reunification services for her to participate in unsupervised visits and demonstrate her
ability to provide for the child’s medical needs. The juvenile court adopted the agency’s
recommendation and terminated family reunification services to mother and father. A
section 366.26 hearing was scheduled for July 27, 2022.
Selection and Implementation Hearing
On July 15, 2022, mother filed a section 388 petition requesting the children be
returned to her care.3 The petition alleged mother’s circumstances changed because she
received training for the child’s g-tube and colostomy bag. It further alleged that mother
realized the importance of school and doctor’s visits. The children’s best interests were
alleged to be served because the children would be happier at home with mother and
father.
3 Father also filed a section 388 petition requesting that the children be returned
home.
12.
On July 18, 2022, mother’s counsel filed a section 388 petition requesting
additional reunification services based upon the following alleged change of
circumstances: attendance of therapy appointments, completion of a psychiatric
evaluation, receipt of professional medical training, and confidence in feeding and
changing the child. The order for continued reunification services was alleged to be in
the children’s best interests because she continued to visit and the children were bonded
to mother. Attached to the petition was a psychiatric evaluation, a letter indicating
mother attended “GJ-Tube Teaching” with a nurse from the hospital, and a mental health
attendance report.
The juvenile court denied the July 15, 2022, section 388 petition because the
petition filed by mother’s counsel was set for a hearing on July 27, 2022, to determine if
an evidentiary hearing would be granted on the request for additional reunification
services.
The section 366.26 report, filed by the agency on July 20, 2022, recommended
that the juvenile court establish a permanent plan of legal guardianship for J.R. As to the
child, the agency recommended that mother and father’s parental rights be terminated and
a plan of adoption be ordered. The child, now nine years old, remained placed in the
home of the relative care providers with J.R. The child was hospitalized twice in May
and June 2022, but she continued to put on weight and appeared to be happy. More than
15 months had elapsed since the children’s placement in the relative care providers’
home, and there were no observed concerns regarding the placement. The child showed
affection by giving the relative care providers hugs and kisses, and she was playful with
them. J.R. expressed his desire to live with his parents, but he had no worries or concerns
in relation to the placement.
The report noted that mother participated in weekly supervised visits with the
children for two hours per week from February 2021 through June 2022. In July 2022,
visitation occurred every other week, and mother was consistently observed to be on time
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and engaging with the children. Social workers did have to intervene when J.R. tried to
manipulate mother by becoming angry or loud. In recent visits, mother met the child’s
medical and physical needs, and no significant concerns were noted in the last three
months of supervised visitations. However, mother, father, and relative care providers
engaged in a verbal altercation that upset the child prior to an attempted visit outside of
the agency’s supervision. The relative care providers left the visit with the child because
they were concerned she would pull out her feeding tube or harm herself.
The child was described as an adorable, strong-willed female of Black, Caucasian,
and Hispanic descent. She was nonverbal and often motioned when she was expressing
herself. The child had been diagnosed with autism, global developmental delays,
craniofacial syndrome, seizure-like activity, failure to thrive, feeding tube dependent,
hypoglycemia, constipation, and fecal impaction. She required specialized care and
attention, and she had a significant history of hospitalizations. The child was excited to
see her mother, and she transitioned easily to and from visits. She was observed to be
happy, playful, and content with her relative care providers. The agency believed the
child was “specifically adoptable” due to her significant medical and developmental
concerns.
The relative care providers were willing to adopt both children to keep them with
their family. The agency considered J.R. to be adoptable due to his young age and lack
of significant medical or developmental concerns. At almost 11 years of age, J.R.
indicated that he would refuse to sign adoption papers in the event he turned 12 years old
prior to the finalization date. He was in agreement with a permanent plan of legal
guardianship if he could not be returned home.
The children lived with their maternal grandfather, maternal grandmother, and
maternal aunt, who resided in the home together to care for the children. The maternal
grandmother and maternal aunt were cleared as the resource family parents, and the
maternal grandfather was cleared as another adult in the home. The agency was working
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to approve the maternal grandfather as a resource family parent, but the process would
not be completed by the section 366.26 hearing. The relative care providers expressed an
openness and commitment to providing the children permanency through either a plan of
adoption or legal guardianship.
On July 27, 2022, a combined hearing regarding the section 388 petition and
section 366.26 hearing was held with both parents present. The agency’s counsel
requested a continuance for the agency to respond to the section 388 petition for
additional reunification services. Mother’s counsel requested to proceed on the section
388 petition that she filed on mother’s behalf, and the juvenile court noted its previous
denial of mother’s initial section 388 petition. The hearing was continued with the
agreement of the parties to August 17, 2022.
The agency filed a report in response to mother’s section 388 petition, which
recommended mother’s petition be denied. The report detailed mother’s child welfare
history, the circumstances that led to the removal of the children, and current information
on the family. The social worker observed the child articulating single words, short
sentences, and gestures, but she was not able to describe her feelings, thoughts, or wishes.
The child became excited and stated, “ ‘Go see Mom!’ ” when the social worker
reminded her of an upcoming visit with mother. However, she became upset when the
social worker clarified that the visit was not until the next day.
On August 2, 2022, mother, father, and the child participated in a two-hour make-
up visit. The child responded excitedly to mother, but she did not respond to father. She
became upset when mother went to get father’s phone from the car. Mother addressed
the child’s medical needs and offered her liquid through her feeding tube. The child was
excited about bringing hair supplies to allow mother to style her hair, but they did not
style the child’s hair. The family sat and watched television throughout the visit without
significant interactions.
15.
The social worker met with mother to discuss her prior and current efforts to
engage in services. Mother disclosed participating in individual counseling every other
week and psychiatric services once per month for her psychotropic medications. She
believed one of her medications helped with her mood while the other was intended to
help her quit smoking. Mother completed a training for the child’s colostomy bag in
October 2021, which was prior to her family reunification services being terminated. In
June 2022, she completed a training for the child’s feeding tube, and she learned that she
had to pay attention to every single detail regarding the child’s feedings. She believed
the child was ready to return to her care fulltime, and she just needed more time to show
the juvenile court that the children could return home safely. Mother would need the
support of a nurse or trained person to assist with caring for the child on occasion.
The agency did not believe the children’s best interests would be served by
delaying the children’s permanent plans to offer family reunification services to mother.
The social worker observed that mother continued to be overwhelmed while the children
were in her care for two-hour supervised visits, and mother had not shown an ability to
meet the children’s needs for extended periods of time. The report concluded that the
mother’s section 388 petition should be denied because mother had not yet mitigated the
circumstances that led to the children being removed from her care.
On September 1, 2022, the juvenile court held a contested hearing on mother’s
section 388 petition and the section 366.26 hearing after multiple continuances. The
juvenile court began the hearing by allowing the parties to argue whether an evidentiary
hearing should be granted for mother’s section 388 petition. After hearing argument
from counsel and considering the petition and current reports, the juvenile court denied
mother’s request without an evidentiary hearing. The juvenile court determined that
mother’s circumstances were “changing” rather than “changed,” and it further found that
there was insufficient evidence that additional family reunification services would be in
the children’s best interests.
16.
The selection and implementation portion of the hearing then began with
testimony from father. Father was opposed to the legal guardianship for J.R. because he
believed himself and mother were good parents. The assigned social worker testified
regarding her experience, and she was found to be an expert witness in child welfare
adoptions. The social worker believed that the agency would be able to find a home that
was willing to take placement of both children with their respective permanent plans if
the relative care providers were unable to adopt.
The child’s significant medical needs were described by the social worker, and she
believed that another adoptive home could be located for the child if the relative care
providers were not able to adopt the child. The social worker previously had children
with significant medical needs on her caseload, and there were care providers all over the
state that the agency connected children with in the past. The care providers are
generally nurses or other persons trained in caring for medically needy children. The
maternal relatives were currently identified as persons that were interested in meeting the
child’s high level of care and providing a plan of adoption. In the social worker’s
professional opinion, it would not be detrimental to terminate the child’s parental rights
because she was well-adjusted and comfortable in her current home. The child looked
forward to visits with mother, but she grew weary of the visit and wanted to go home as
the visit progressed.
Finally, mother testified that the child calls her “[m]om,” and she runs to give her
a hug at the beginning of visits. Supervised visits between mother and the child took
place every other week, and mother fed the child through her feeding tube and changed
her colostomy bag. Mother believed the child looked “[d]efeated” at the end of visits
because she had to leave. Her preference was for the juvenile court to order guardianship
instead of adoption for the child.
17.
After hearing argument from all counsel, the juvenile court proceeded to its ruling
on the section 366.26 hearing after a recess. The juvenile court began with the first issue
of the children’s adoptability by stating as follows:
“I don’t believe today that there’s any question about that. There is
no evidence that the Court has before it that the children aren’t adoptable.
They are with maternal family who wish to adopt. And according to
testimony, if the maternal relatives that currently have care are unable or
unwilling at some point to adopt, there are other relatives that have also
stepped forward and indicated that they would be willing to do so. That in
and of itself establishes sufficient evidence that the children are adoptable,
and I don’t think there’s been any argument that they are not.”
The juvenile court agreed with the agency’s recommendation that a plan of legal
guardianship was the most appropriate plan for J.R. based upon his wishes. In regard to
the child, the juvenile court found there was clear and convincing evidence that the child
was adoptable. Next, the juvenile court turned to the beneficial parent-child relationship
exception to adoption. It began by acknowledging the recitation of the law by agency’s
counsel, which relied upon the California Supreme Court’s recent guidance in the case of
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). The juvenile court agreed with all
counsel that mother and father established the first prong of the exception through regular
visitation and contact with the child.
In considering the existence of a substantial positive, emotional attachment
between the child and parents, the juvenile court acknowledged that there appeared to be
an attachment and relationship from the description of the parents’ visits. However, it
was uncertain that the parents met their burden to provide evidence of a substantial
positive, emotional attachment. The juvenile court summarized the “very difficult”
issues in the case relating to the child, and it determined that the child’s unique
circumstances required an even greater need for permanency and stability.
The juvenile court concluded that it was unable to find that termination of parental
rights would be detrimental given the benefits provided to the child by a permanent and
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stable adoptive home. It proceeded to follow the agency’s recommendation and
terminated the parental rights of mother and father and selected a plan of adoption for the
child.
DISCUSSION
I. DENIAL OF SECTION 388 PETITION
Mother contends the juvenile court erred when it failed to grant her section 388
petition requesting additional reunification services. She argues that her petition and
supporting documentation showed a material change in her circumstances.
A. Legal Principles
A petition to modify a juvenile court order under section 388 must allege facts
showing new evidence or changed circumstances exist and changing the order will serve
the child’s best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217,
1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal.
Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may
consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181,
189.)
Section 388 serves as an “ ‘escape mechanism’ when parents complete a
reformation in the short, final period after the termination of reunification services but
before the actual termination of parental rights. [Citation.]” (In re Kimberly F. (1997)
56 Cal.App.4th 519, 528 (Kimberly F.).) “After the termination of reunification services,
the parents’ interest in the care, custody and companionship of the child are no longer
paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency
and stability’ [citation] . . . .” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
“The change in circumstances must relate to the purpose of the order and be such
that the modification of the prior order is appropriate. [Citations.] In other words, the
problem that initially brought the child within the dependency system must be removed
or ameliorated. [Citation.] The change in circumstances or new evidence must be of
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such significant nature that it requires a setting aside or modification of the challenged
order. [Citation.]” (In re A.A. (2012) 203 Cal.App.4th 597, 612.) “A petition which
alleges merely changing circumstances and would mean delaying the selection of a
permanent home for a child to see if a parent, who has repeatedly failed to reunify with
the child, might be able to reunify at some future point, does not promote stability for the
child or the child’s best interests. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38,
47.)
When determining whether a modification under section 388 would be in the best
interests of the child, courts have considered several factors including but not limited to:
“(1) the seriousness of the problem which led to the dependency, and the reason for any
continuation of that problem; (2) the strength of relative bonds between the dependent
children to both parent and caretakers; and (3) the degree to which the problem may be
easily removed or ameliorated, and the degree to which it actually has been. . . .”
(Kimberly F., supra, 56 Cal.App.4th at p. 532.)
B. Standard of Review
We review the denial of a section 388 petition after an evidentiary hearing for
abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) “ ‘The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ”
(Id. at pp. 318–319.) “ ‘The denial of a section 388 motion rarely merits reversal as an
abuse of discretion.’ ” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) Where
there is conflicting evidence, we reverse only if the evidence compels a finding for the
appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1529.)
C. Analysis
In the present case, the juvenile court determined that mother did not prove the
existence of a change in circumstance or the children’s best interests were served by
granting her request. Mother provided evidence that she was regularly attending
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counseling, participated in a feeding-tube training, and participated in a psychiatric
evaluation in the four months following the termination of her reunification services.
Citing to Kimberly F., mother argues that the juvenile court’s denial of her section
388 petition prevented her from giving testimony regarding a variety of factors affecting
the children’s best interests. In Kimberly F., the Court of Appeal rejected a trial court’s
use of a simple best interests test – of comparing the household and upbringing offered
by the natural parent or parents with that of the caretakers – in analyzing a section 388
petition. (Kimberly F., supra, 56 Cal.App.4th at pp. 526–530.) The appellate court then
determined a list of factors that may be considered: the seriousness of the problem
leading to dependency and the reason that problem was not overcome by the final review;
the strength of relative bonds between the dependent children to both parent and
caretakers and the length of time a child has been in the dependency system in
relationship to the parental bond; and, the degree to which the problem may be easily
removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530–
532.)
Here, it cannot be disputed that mother was engaged during visits with the
children, and she was participating in counseling and psychiatric appointments. These
facts were understood and acknowledged by the juvenile court. The reasons provided by
the juvenile court in denying mother’s request related directly to the “seriousness of the
problem which led to the dependency,” and the “degree to which it actually has been”
ameliorated. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The juvenile court also
properly focused on the children’s permanence and stability when it considered mother’s
request to delay the children’s proposed permanent plans.
Mother’s argument that her bond with the children and participation in mental
health treatment required resumption of reunification efforts ignores the legally required
shift in focus once her prior efforts failed. Mother’s section 388 petition contemplated
further delay in permanency for children that had remained in out-of-home care for more
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than 18 months. Although mother had begun making progress by participating in regular
counseling, a psychiatric evaluation, and a medical training, the circumstances before the
court showed that mother still lacked the ability to provide care for the child on a full-
time basis.
We acknowledge that mother’s continued progress in treating her mental health
and learning about the child’s medical care indicates that her circumstances are changing,
and mother’s continued efforts are to be commended. However, mother must
demonstrate “changed, not changing, circumstances.” (In re Mickel O. (2011) 197
Cal.App.4th 586, 615.) Thus, it was reasonable for the court to conclude mother’s recent
efforts in the few months prior to the termination hearing evidenced “changing” rather
than “changed” circumstances, particularly in light of her lengthy history of receiving
court-ordered services in two separate dependencies involving the child. Because mother
did not make a prima facie showing that circumstances had changed in the four months
following the review hearing, the juvenile court properly denied her section 388 petition
without an evidentiary hearing.
In the context of an 18-month dependency for the children, mother’s sincere
efforts to continue visits and counseling demonstrated changing, but not changed,
circumstances. The child was still in a vulnerable but improving state with her various
medical and developmental conditions, and the child already endured months of
uncertainty while in out-of-home care. Considering the child’s heightened need for
permanence and stability, and the inability of mother to demonstrate her ability to meet
the child’s needs, the juvenile court’s decision to forego additional reunification efforts
was not arbitrary or beyond the bounds of reason. Accordingly, we find the juvenile
court did not abuse its discretion in denying the section 388 petition.
II. ADOPTABILITY
Mother also challenges the sufficiency of the evidence to support the juvenile
court’s finding that the child is adoptable. She contends the juvenile court misunderstood
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the correct standard, the evidence suggested uncertainty as to who would be adopting the
child, and improperly relied upon evidence that other individuals would be willing to
adopt the child.
A. Legal Principles
Once the juvenile court sets a hearing pursuant to section 366.26 to select and
implement a permanent plan for a dependent child, the agency must prepare an
assessment, frequently referred to as an adoption assessment. “Such an adoption
assessment provides the information necessary for the juvenile court to determine
whether it is likely the child will be adopted [citation] and to consequently order
termination of parental rights.” (In re G.M. (2010) 181 Cal.App.4th 552, 559.) The
assessment must include “[a] preliminary assessment of the eligibility and commitment
of any identified prospective adoptive parent.” (§ 366.21, subd. (i)(1)(D).) “A child’s
current caretaker may be designated as a prospective adoptive parent if the child has lived
with the caretaker for at least six months, the caretaker currently expresses a commitment
to adopt the child, and the caretaker has taken at least one step to facilitate the adoption
process. (§ 366.26, subd. (n)(1).)” (In re G.M., supra, at p. 559.)
At the section 366.26 hearing, the juvenile court must determine by clear and
convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd.
(c)(1).) If the court finds a likelihood of adoption, the court must terminate parental
rights absent evidence termination would be detrimental to the minor under one of the
exceptions to adoption (§ 366.26, subd. (c)(1)(B)(i)–(vi)) that are not applicable here.
(See In re Celine R. (2003) 31 Cal.4th 45, 53.)
In determining adoptability, the juvenile court assesses the child’s age, physical
condition and emotional state and how these characteristics affect a prospective parent’s
willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) To
be considered adoptable, the child need not be in a prospective adoptive home and there
need not be a prospective adoptive parent waiting to adopt. The fact a prospective
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adoptive parent has expressed interest in adopting the child is evidence the child’s age,
physical condition, mental state, and other matters relating to the child are not likely to
dissuade adoption of the minor. A prospective adoptive parent’s willingness to adopt
generally indicates the minor is likely to be adopted within a reasonable time either by
the prospective adoptive parent or by some other family. (In re R.C. (2008) 169
Cal.App.4th 486, 491.)
In assessing adoptability, some courts have divided children into two categories:
those who are “generally adoptable” and those who are “specifically adoptable.” A child
is “generally adoptable” if the child’s traits, e.g., age, physical condition, mental state and
other relevant factors do not make it difficult to find an adoptive parent. A child is
“specifically adoptable” if the child is adoptable only because of a specific caregiver’s
willingness to adopt. (In re R.C., supra, 169 Cal.App.4th at pp. 492–494.) When a child
is deemed adoptable only because a particular caregiver is willing to adopt, the analysis
shifts from evaluating the characteristics of the child to whether there is any legal
impediment to the prospective adoptive parent’s adoption and whether he or she is able to
meet the needs of the child. (Id. at p. 494.) For example, a married, but separated person
may not adopt a child without the consent of the spouse. (In re Sarah M., supra, 22
Cal.App.4th at p. 1650, citing Fam. Code, § 8603.)
B. Standard of Review
On appeal, we review the juvenile court’s finding that a child is adoptable for
substantial evidence. “[O]ur task is to determine whether there is substantial evidence
from which a reasonable trier of fact could find, by clear and convincing evidence, that
the minor is adoptable. [Citation.] The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the finding or order.” (In re R.C.,
supra, 169 Cal.App.4th at p. 491.)
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C. Analysis
We address the terms “generally” and “specifically” adoptable, terms that, in our
view, obfuscate the adoptability issue before the juvenile court because those terms are
not mentioned in section 366.26. Further, the juvenile court is not required to assess the
general and specific adoptability of a child or make such findings. Instead, section
366.26 merely requires the juvenile court to determine if the child is “likely” to be
adopted within a reasonable time. The law requires the juvenile court to determine if the
child is adoptable.
“Although a finding of adoptability must be supported by clear and convincing
evidence, it is nevertheless a low threshold: The court must merely determine that it is
‘likely’ that the child will be adopted within a reasonable time. [Citations.] We review
that finding only to determine whether there is evidence, contested or uncontested, from
which a reasonable court could reach that conclusion. It is irrelevant that there may be
evidence which would support a contrary conclusion.” (In re K.B. (2009) 173
Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to
the juvenile court’s findings, and draw all inferences from the evidence that support the
court’s determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Mother’s contention that the juvenile court applied an improper standard when
finding the child adoptable ignores the full context of its actual statements. The juvenile
court initially stated that it did not believe there was any question that the children were
likely to be adopted because no parties argued to the contrary. Its observation that
“[t]here is no evidence that the Court has before it that the children aren’t adoptable”
merely acknowledged the parents implied concession of the issue. In fact, the juvenile
court expressly concluded its discussion on adoptability by stating, “the Agency has met
its burden by clear and convincing evidence that [the child] is an adoptable child.” Thus,
it did not apply an incorrect legal standard when finding the child was adoptable.
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Next, we reject mother’s contention that the uncertainty regarding the maternal
grandfather’s status as an approved adult living in the home rather than an approved
resource family parent undermined the adoption finding. The juvenile court was capable
of relying on the resource family approval of the maternal grandmother and aunt in
determining that the child was likely to be adopted by them. That the grandfather may
have been an additional adoptive parent or another adult living in the home is immaterial
to the juvenile court’s finding.
Even so, mother’s speculative challenge to the juvenile court’s adoptability
finding based on a legal impediment was not properly preserved for appellate purposes.
(See In re G.M., supra, 181 Cal.App.4th at pp. 563-564, citing In re S.B. (2004) 32
Cal.4th 1287, 1293 & In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2.) Mother did not
object to the adequacy of the agency’s assessment, nor did she question the social worker
whether the maternal grandmother in fact had her husband’s consent to adopt the
children. To conclude that either the maternal grandfather would not consent to the
adoption or maternal grandmother and aunt were unable to adopt the child would be
drawing inferences contrary to the juvenile court’s ruling. Mother argues nevertheless,
relying on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), there was insufficient
evidence that the maternal grandmother and aunt were able to jointly adopt the child.
In Valerie W., a mother and her adult daughter applied jointly to adopt two
children, one with a potentially serious genetic or neurological disorder and the other
with emotional problems. (Valerie W., supra, 162 Cal.App.4th at pp. 5–7, 11, 14.) The
children were considered adoptable only because the mother and her daughter were
willing to adopt. (Id. at p. 15.) The agency failed, however, to provide sufficient
evidence that either the mother or her daughter would be willing or able to adopt the
children if the other were found unsuitable, or to identify another prospective adoptive
parent. The appellate court concluded there was insufficient evidence to support the
court’s adoptability finding and remanded the case to the juvenile court. (Id. at pp. 13–
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16.) Here, there was no evidence the maternal grandmother or aunt’s suitability to adopt
depended on the other or that either was unwilling or unable to adopt the child as a single
adoptive parent. Thus, at a minimum, the juvenile court could find the child was
adoptable because she had prospective adoptive parents committed to adopting her.
In addition, we reject mother’s claims that the juvenile court’s additional reliance
on evidence of other relatives being willing to step forward or the agency’s ability to
locate alternative adoptive placements was in error. The common factor in the cases
cited by mother to support this argument was the fact that the children were not yet
placed with prospective adoptive parents. (See In re Amelia S. (1991) 229 Cal.App.3d
1060, 1065 [“the permanency hearing report indicated a few foster parents were
considering adoption”]; see also In re B.D. (2008) 159 Cal.App.4th 1218, 1234 [“this is
not a case in which the children had any previous relationship with a family interested in
adopting them”].) This is not a case where the juvenile court relied solely on the
availability of alternative adoptive placements to support its finding of adoptability.
Accordingly, the juvenile court’s finding that the child was likely to be adopted by
resource family approved relative care providers, who had been committed to the child
for the past 15 months, was supported by substantial evidence.
III. BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION
Mother’s final contention is that the juvenile court erred when it did not apply the
beneficial parent-child relationship exception to adoption. Mother asserts that the
juvenile court improperly considered mother’s inability to resolve the issues that led to
removal when balancing potential detriment from termination against the benefits of
adoption.
A. Legal Principles
At a section 366.26 hearing, when the juvenile court finds by clear and convincing
evidence the child is adoptable, it is generally required to terminate parental rights and
order the child be placed for adoption unless a statutory exception applies. (§ 366.26,
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subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship
exception, which applies when “[t]he court finds a compelling reason for determining
that termination would be detrimental to the child” where “[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.” (Id., subd. (c)(1)(B)(i).)
A parent claiming an exception to adoption has the burden of proof to establish by
a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82
Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail
under the beneficial relationship exception: “(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.” (Caden C., supra, 11
Cal.5th at p. 631.)
The first element of the beneficial relationship determination asks the
“straightforward” question of whether the parent visited consistently, considering the
extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is
on the best interests of the child as opposed to punishing or rewarding parents for good
behavior in maintaining contact. (Ibid.)
The second element of the exception asks whether the child would benefit from
continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child
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.’ ” (Ibid.,
quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court’s focus
should again be on the child, and it “must remain mindful that rarely do ‘[p]arent-child
relationships’ conform to an entirely consistent pattern.” (Caden C., at p. 632.)
When considering the third element, courts must determine “how the child would
be affected by losing the parental relationship—in effect, what life would be like for the
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child in an adoptive home without the parent in the child’s life.” (Caden C., supra, 11
Cal.5th at p. 633.) Potential negative effects from severance of the relationship might
include “emotional instability and preoccupation leading to acting out, difficulties in
school, insomnia, anxiety, or depression.” (Ibid.) An adoptive home might provide a
new source of stability that alleviates emotional instability and preoccupation leading to
those problems, making the loss “not, at least on balance, detrimental.” (Ibid.) Under
this element, the court is again guided by the child’s best interests, but in a “specific way:
it decides whether the harm of severing the relationship outweighs ‘the security and the
sense of belonging a new family would confer.’ ” (Ibid.)
In Caden C., the court held “that because the parent continued to struggle with
substance abuse and mental health issues and because of the risks of foster care and
benefits of the potential adoptive home, no reasonable court could find the child’s
relationship with his parent outweighed the benefits of adoption.” (Caden C., supra, 11
Cal.5th at pp. 625–626.) Rejecting that conclusion, our Supreme Court found “[t]he
Court of Appeal did not explain how the parent’s struggles related to the specific
elements of the statutory exception: the importance of the child’s relationship with the
parent or the detriment of losing that relationship.” (Id. at p. 626.) A parent’s struggles
with issues that led to dependency were determined to be relevant only to the extent they
inform whether the child would “benefit from continuing the relationship and be harmed,
on balance, by losing it.” (Id. at p. 638.)
B. Standard of Review
Appellate courts review a juvenile court’s ruling on the application of the
beneficial parent-child relationship exception using a “hybrid” standard. (Caden C.,
supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two
elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639–
640.) The juvenile court’s decision as to the third element—whether termination of
parental rights would be detrimental to the child—is reviewed for an abuse of discretion.
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(Id. at p. 640.) “Review for abuse of discretion is subtly different, focused not primarily
on the evidence but the application of a legal standard. A court abuses its discretion only
when ‘ “ ‘the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)
The standard of review of a court’s determination that a parent did not meet his or
her burden to prove an exception to termination of parental rights is “whether the
evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is “whether the
appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
C. Analysis
In the present case, the juvenile court determined that neither parent met their
burden of proof as to the application of the beneficial parent-child relationship exception.
The parties acknowledge the juvenile court’s finding that mother visited regularly.
However, the juvenile court did not find that there was sufficient evidence that
maintaining the child’s relationship with mother and father outweighed the benefits of
adoption to establish the exception.
Mother cites to the cases of In re B.D. (2021) 66 Cal.App.5th 1218 and In re J.D.
(2021) 70 Cal.App.5th 833, in support of her contention that the juvenile court’s orders
must be reversed for improper consideration of the circumstances that led to the child’s
removal. In In re B.D., a juvenile court noted that “the social worker’s report stated that
the paternal grandmother met the children’s daily needs and opined that the parents were
‘currently not in a position where they are able to take on the parental role.’ ” (In re
B.D., supra, 66 Cal.App.5th at p. 1229.) The juvenile court also emphasized the parents’
failure to complete the reunification plan and their continued untreated substance abuse
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issues. (Id. at pp. 1228, 1229–1230.) The In re B.D. court found the juvenile court’s
reliance on the fact that the paternal grandmother provided for the children’s daily needs
and the parents were unable to meet the children’s needs to be “concerning because it is
unclear what weight the juvenile court placed on these conclusions when balancing the
harm of severing the natural parent-child relationship to the benefits of a new adoptive
home in the crucial third step of the analysis.” (Id. at p. 1230.) The appellate court
reversed, without conducting a harmless error analysis, so the juvenile court could
conduct a new parent-child relationship exception analysis in light of Caden C. (Id. at
p. 1231.)
Similarly, in In re J.D., the appellate court concluded that it was unclear to what
extent the juvenile court—there, acting before Caden C.—considered improper factors at
the second step of analyzing the parent-child beneficial relationship exception, and it
reversed and remanded for a new section 366.26 hearing in accordance with Caden C.
(In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) Specifically, it observed that the
juvenile court had appeared to improperly consider “the mere fact [that mother] had been
unable to succeed in overcoming her parenting struggles,” “the suitability of [the
minor’s] current placement,” the minor’s attachment to his current caregiver, and the
court’s determination that mother did not occupy a “ ‘parental’ ” role—all factors
improper under Caden C. (In re J.D., at pp. 864-865.)
The cases cited by mother are distinguishable because the juvenile court in this
case did not refuse to apply the beneficial parent-child relationship exception based solely
on the mother’s failure to make “sufficient progress in addressing the problems that led to
dependency.” (Caden C., supra, 11 Cal.5th at p. 637.) A parent’s “continued struggles”
with the issues that led to dependency cannot, “standing alone,” be a bar to the parental-
benefit exception. (Ibid.) However, a parent’s struggles with the issues that led to the
dependency are “relevant to the application of the [parental-benefit] exception” because it
may be probative of whether interaction between parent and child has a negative effect on
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the child. (Ibid.) “A parent’s struggles may mean that interaction between parent and
child at least sometimes has a ‘ “negative” effect’ on the child” (ibid.), while
“[c]onversely, a parent who gains greater understanding of herself and her children’s
needs through treatment may be in a better position to ensure that her interactions with
the children have a ‘ “positive” . . . effect’ on them” (id. at pp. 637–638).
The cases cited by mother are inapposite because the child’s section 366.26
hearing was held in September 2022, more than one year after Caden C., so the juvenile
court had the benefit of the Supreme Court’s analysis, which was cited in the juvenile
court’s ruling. Furthermore, the juvenile court in this case did not refuse to apply the
beneficial parent-child relationship exception based upon mother’s failure to adequately
address the issues that led to the child’s removal. In considering the third prong of the
beneficial parent-child relationship exception here, the juvenile court stated as follows:
“The issues in this case related to [the child] are very difficult. The
mother has done her best to care for [the child], and unfortunately that is—
or the inability to care for her and meet her needs was the thing that resulted
in the Agency and the Court being involved with this family. [The child]
has serious special needs, she has to be fed 16 out of 24 hours a day. And
in the beginning of this case I think that, even according to [mother’s
counsel], that it was very difficult for the mother to understand or be able to
comply with [the child]’s needs. . . . I think maybe it just was difficult for
the mother to appreciate the gravity of [the child]’s situation, and she has
now been out of the mother’s care for 14 months, she’s been living with a
relative care provider, who is very able and very capable of providing the
type of care that [the child] needs to have. [¶] Given the fact that [the
child], probably more than maybe other children, given her special needs
she probably needs permanency and stability even more. [¶] The Court is
unable, based upon the information that is before me, to make a finding as
to [the child] that terminating the parental rights of her parents would be so
detrimental to her that I should not terminate parental rights, and have—
give her the benefit of a permanent and stable adoptive home.”
We do not find that, in making its determination, the juvenile court abused its
discretion by relying on impermissible factors. The juvenile court’s ruling at the
combined section 388 and section 366.26 hearing gave no indication that it relied on
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mother’s “continued struggles” to bar the parent-child relationship exception. Viewed in
its context, the juvenile court considered the child’s need for stability based upon the
gravity of the problem that led to removal in evaluating the third prong of the exception.
On balance, it concluded that ongoing interactions while mother continued making
positive changes to her life was not as beneficial as the child’s greater need for stability.
The evidence in the record weighed in favor of the preferred permanency option of
adoption. Given the fact that the child was still relatively young, had extensive medical
and developmental needs, showed no distress when separating from mother, and was
bonded to her relative care providers, we find the juvenile court did not abuse its
discretion. Under these circumstances, the juvenile court’s ruling is entitled to a
presumption of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at
p. 640.) Therefore, the juvenile court did not err in declining to apply the beneficial
parent-child relationship exception, and its orders terminating mother and father’s
parental rights were proper.
DISPOSITION
The juvenile court’s orders are affirmed.
DETJEN, Acting P. J.
WE CONCUR:
MEEHAN, J.
SNAUFFER, J.
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