In re R.S. CA2/6

Filed 4/12/22 In re R.S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re R.S., et al., Persons 2d Juv. No. B314326
Coming Under the Juvenile (Super. Ct. Nos. J072607,
Court Law. J072608, J072609)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Petitioner and Respondent,
v.
M.L.,
Objector and Appellant.
M.L. (mother) appeals from the juvenile court’s orders
terminating parental rights to her children, R.S., L.S., and R.L.,
(the children) and selecting adoption as the permanent plan.
(Welf. & Inst. Code, § 366.26.)1 Mother contends the juvenile
court erred in finding that the parental-benefit exception to
adoption did not apply because the evidence demonstrated that
the children would benefit from continuing the relationship and
terminating parental rights would be detrimental to the
children’s well-being. She contends that a legal guardianship or
long-term foster care is the more appropriate permanent plan for
the children. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children, R.S. (born March 2015), L.S.
(born April 2018), and R.L. (born July 2020). At the time of R.L.’s
birth, mother tested positive for marijuana and amphetamine.
R.L.’s umbilical cord also tested positive for marijuana,
amphetamine, and methamphetamine. Mother has a history of
substance abuse, which continued throughout her pregnancy.
While pregnant with R.L., mother did not obtain any prenatal
care, and R.L. was born prematurely at 31-weeks gestation.
After giving birth to R.L., mother left the hospital early against
medical advice, did not provide any contact information, and told
hospital staff she did not want to have contact with R.L. because
she wanted the baby to be adopted.
On July 28, 2020, Ventura County Human Services Agency
(agency) filed petitions asking the juvenile court to exert
dependency jurisdiction over the children alleging that they were
at substantial risk of harm due to mother’s substance abuse
issues and untreated mental health issues.
On August 26, 2020, following an uncontested jurisdiction
and disposition hearing, the juvenile court found the allegations
1 All further references are to the Welfare and Institutions
Code.
2
contained in the petitions to be true, exerted dependency
jurisdiction over the children and removed them from mother’s
custody. The juvenile court ordered the agency to provide mother
with reunification services.
Initially, the children experienced multiple placements.
Immediately following her birth, R.L. was transferred to the
neonatal intensive care unit where she remained for
approximately one month. R.S. and L.S. were briefly placed in a
non-related resource home but were later placed with a non-
related extended family member (NREFM). However, after R.S.
exhibited sexualized behavior, he was moved to a relative’s home,
along with L.S. and R.L. After an incident between R.S. and the
relative’s daughter, R.S. was placed in Intensive Service Foster
Care (ISFC) where he could receive a higher level of care due to
his behavioral issues. L.S. briefly returned to NREFM’s home
but was later placed with R.S. in the same ISFC home due to her
specialized needs. R.L. was eventually removed from the
relative’s home and placed in the NREFM’s home. The children
have remained in their respective placements since September
2020 for R.S. and R.L., and November 2020 for L.S.
On March 8, 2021, the juvenile court conducted a six-month
progress hearing. By that time, mother had maintained regular
visitation with the children. She had attended 37 of the 39 twice-
weekly scheduled visits. At each visit, numerous extended family
members were present, and the family members would hold the
children and help tend to their needs. Despite mother’s
consistent visits with the children, she had not completed any of
the services that were part of her case plan. She had not
participated in substance counseling or parenting education. She
had not submitted a single drug test. Mother had also not
3
remained in contact with the agency. On this basis, the juvenile
court found that mother’s progress “toward alleviating or
mitigating the causes necessitating placement ha[d] been nil,”
and proceeded to terminate mother’s reunification services and
set a permanency planning hearing.
On July 29, 2021, the juvenile court conducted a contested section
366.26 hearing. After hearing testimony from the social worker and
mother, the juvenile court found the children to be adoptable, found the
parental-benefit exception did not apply, and terminated mother’s
parental rights over the children.
DISCUSSION
Mother contends the juvenile court erred in finding that the
parental-benefit exception to adoption did not apply. She further
contends a guardianship or long-term foster care, and not
adoption, is the more appropriate permanent plan for the
children.
“‘At a permanency plan hearing, the [juvenile] court may
order one of three alternatives: adoption, guardianship or long-
term foster care. [Citation.] If the dependent child is adoptable,
there is a strong preference for adoption over the alternative
permanency plans.’ [Citation.]” (In re B.D. (2021) 66 Cal.App.5th
1218, 1224.) If the juvenile court finds that the child is
adoptable, it must terminate parental rights unless a statutory
exception applies. (§ 366.26, subd. (c)(1).)
Parental-Benefit Exception
One exception to this rule is the parental-benefit exception,
which allows the juvenile court to deny termination if it “finds a
compelling reason for determining that termination would be
detrimental to the child” because “[t]he parents have maintained
regular visitation and contact with the child and the child would
4
benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i).) To avoid termination of parental rights under this
exception, a parent “must show, by a preponderance of the
evidence, three things. [First,] [t]he parent must show regular
visitation and contact with the child . . . . [Second,] 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
[third,] 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
parental-benefit exception applies incorporates two standards of
review. (Caden C., supra, 11 Cal.5th at pp. 639-641.) We apply
the substantial evidence standard to the first two elements of the
exception and abuse of discretion to the third element. (Ibid.)
Juvenile Court’s Ruling
Here, the juvenile court found mother had satisfied the first
element but did not satisfy the second and third elements of the
parental-benefit exception. As the juvenile court explained: “I
think the mother has shown regular visitation and contact.
That’s the first part of the exception for the beneficial
relationship exception. [¶] The next question is whether she’s
established that the children have a substantial positive
emotional attachment to [mother] . . . . [¶] [¶] [¶] . . . [I]t’s really
5
difficult, based upon the evidence . . . , to find that these children
have a substantial positive emotional attachment to . . .
mother . . . . There’s no doubt the visits have been pleasant, but
that’s not enough. [¶] . . . [E]ven if there was some kind of
substantial positive emotional attachment, I still would have to
determine whether that relationship is such that it’s so
significant to these children that it outweighs the need that they
have or the benefits that they would realize by having a stable,
permanent home that they could get with adoption . . . . And I
don’t think that the evidence of their relationship with their
mother, for the most part arising out of pleasant visits, is more
significant than the benefits they’ll realize by having a stable,
permanent home. [¶] So I don’t think . . . mother has met her
burden of showing that the exception applies, and so I am
ordering adoption as the permanent plan.”
Substantial Evidence Supports the Juvenile Court’s
Determination the Parental-Benefit Exception Did Not Apply
There is no dispute that mother established the first element of
the parental-benefit exception, that she maintained regular visits with
the children. (Caden C., supra, 11 Cal.5th at p. 632; § 366.26, subd.
(c)(1)(B)(i).) However, there is no evidence in the record to establish the
second two elements.
In determining whether the “‘child would benefit from
continuing the relationship,’” the focus is on the children. (Caden
C., supra, 11 Cal.5th at p. 632.) The exception must be examined
on a case-by-case basis, taking into account “a slew of factors”
which affect a parent/child bond such as, “‘[t]he age of the child,
the portion of the child’s life spent in the parent’s custody, the
“positive” or “negative” effect of interaction between parent and
child, and the child’s particular needs.’” (Caden C., at p. 632,
6
quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn
H.).)
Here, mother’s supervised visits with the children were
generally “positive” and the “quality of the visits” were
“consistently strong [and] adequate.” The visits went well
enough for mother to progress from supervised to monitored
visits. Typically, the visits included a large number of mother’s
family members. Mother would bring the children food and toys.
The children would hug and kiss her and call her “mama.” But a
parent who seeks to invoke the parental-benefit exception “must
do more than demonstrate ‘frequent and loving contact[,]’ an
emotional bond with the child, or that parent and child find their
visits pleasant. Instead, the parent must show that he or she
occupies a ‘parental role’ in the child’s life.” (In re Derek W.
(1999) 73 Cal.App.4th 823, 827, citations omitted; In re C.F.
(2011) 193 Cal.App.4th 549, 555.)
While the children appeared happy to see mother and
enjoyed their visits with her, they did not have any difficulty
separating from mother at the end of the visits. They did not cry,
nor did they ask for additional visits. That is because mother did
not occupy a parental role in their lives. Rather, she was more
like a friendly visitor, which would not preclude terminating her
parental rights. (See Autumn H., supra, 27 Cal.App.4th at p.
576.) This is further supported by mother’s own testimony
during the section 366.26 hearing. When asked by her counsel,
“What do you see as the benefits for these children?”, mother
replied that she “honestly . . . can’t say anything, ‘cause it’s not
me that’s caring for them.”
Moreover, since this dependency action began, the children
have made great progress in their individualized therapy and
7
treatment services. For example, both R.S. and L.S. required
placement in an ISFC home to address their heightened
behavioral and health needs. R.S. is making improvements
regulating and expressing his needs and emotions with his
current treatment plan. L.S. is progressing in her development
with speech therapy and other resources provided by her ISFC
caregiver. R.L. is also receiving occupational therapy and
physical therapy weekly and making positive progress.
Nevertheless, mother does not believe the agency’s
involvement is warranted. She also does not believe that she or
the children need therapeutic services, despite the children
having been assessed by professionals to have “significant needs”
that require professional treatment. Mother’s refusal to
recognize the impact that her behavior and substance abuse have
had on the children is relevant to the juvenile court’s inquiry as
to whether the children would “benefit from continuing the
relationship and be harmed, on balance, by losing it.” (See Caden
C., supra, 11 Cal.5th at pp. 637-638.)
Finally, the children were very young when they were
removed from mother’s care in July 2020. R.S. was five years old,
L.S. was two years old, and R.L. had never lived with mother. At
the time of the section 366.26 hearing in July 2021, the children
had already spent one year in protective custody. During that
time, the children developed a “strong attachment” to their
caregivers. This is evidenced by the children “smiling and
seeking out [their caregivers] when they are hungry, tired, or
when they need to be comforted after crying.”
Substantial evidence supports the juvenile court’s finding
that mother did not satisfy her burden to show a “substantial,
8
positive, emotional attachment” such that the children would
benefit from continuing the relationship.
No Abuse of Discretion in Ruling that Mother Failed
to Establish the Third Element of the Parental-Benefit Exception
“When [the juvenile court] weighs whether termination
would be detrimental, . . . the question is just whether losing the
relationship with the parent would harm the child to an extent
not outweighed, on balance, by the security of a new, adoptive
home.” (Caden C., supra, 11 Cal.5th at p. 634.) “‘If severing the
natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that,’ even
considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental
rights.” (Id. at p. 633.)
The record supports that the children’s well-being would
greatly improve when permanently adopted by stable and fully
attentive parents. When this dependency action was initiated,
the children experienced multiple placements. For example, R.S.
had four placements, some of which lasted a matter of days; L.S.
had five placements; and R.L. had three placements. However,
by the time the section 366.26 hearing occurred, the children had
been in a stable placement with their current respective
caregivers, who are also the prospective adoptive parents. The
record shows the children are thriving with their caregivers who
have given them “stability, consistency, adequate parenting and
love.” When children are this young, their “needs for a
competent, caring and stable parent are paramount.” (In re
Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Indeed, the
juvenile court stated, “[W]ith the many moves that these children
have had, they definitely, as all children do, but these children in
9
particular need a home that they can say is their forever home
that they’re not going to have to leave.”
Mother did not present any evidence that the children
would be greatly harmed by the severance of parental rights, or
that the security and stability of a new home would not outweigh
the loss of that relationship. For example, she did not present a
bonding study or other evidence to show that termination of
parental rights would have a detrimental effect on the children’s
lives. Instead, she contends that she has been the only constant
in the children’s lives, and in particular, R.S.’s life. She asserts
that her regular visits with the children and nightly phone calls
to R.S. were of particular comfort during the children’s multiple
placements.
But the evidence in the record shows that mother has not
maintained contact with either of the children’s caretakers.
Moreover, mother’s nightly phone calls became sporadic and in
February 2021, became “nil.” Prior to the phone calls ending
altogether, R.S. had begun to be “mean” to mother and was not
interested in the phone calls. Even so, mother’s regular visits
and nightly phone calls with the children do not outweigh “the
security and the sense of belonging a new family would confer.”
(Autumn H., supra, 27 Cal.App.4th at p. 575.)
The juvenile court acted within its discretion in concluding
that mother failed to show that severance of the parental
relationship would “harm the [children] to an extent not
outweighed, on balance, by the security of a new, adoptive home.”
(Caden C., supra, 11 Cal.5th at p. 634.)
Mother resists the juvenile court’s finding and contends it
improperly relied on her failure to complete her case plan as a
reason to terminate parental rights. (See Caden. C., supra, 11
10
Cal.5th at p. 634.) We disagree. The juvenile court’s comments
were made after its ruling and in the context of its observations
on how difficult the decision to terminate mother’s parental
rights was in this case. After finding mother had not met her
burden to show the exception applied and after finding the
children adoptable, the juvenile court stated, “[A]nd I . . . just
have to go back and say . . . when I get to this point in many
cases, I am sad, I’m disappointed when we give parents a chance
and . . . this case in particular, it’s just hard for me to
understand, because I think we made it clear what could happen
if mom didn’t do the things we asked her to do, and yet she made
that choice. And I don’t understand that. Especially given how
she was consistent with her visits and clearly loves her children.
But she chose not to do her case plan. And this is what happens.”
Guardianship or Long-Term Foster Care
Mother next contends that a guardianship or long-term
foster care, and not adoption, is the more appropriate option for
the children. This contention fails because we have already
determined mother did not meet her burden to establish the
parental-benefit exception. Accordingly, the juvenile court
correctly determined that adoption was the appropriate
permanent plan for the children. (See In re B.D., supra, 66
Cal.App.5th at p. 1224.)
DISPOSITION
The judgment (orders terminating parental rights and
selecting adoption as the permanent plan) is affirmed.
11
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
12
Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Richard L. Knight, under appointment by the Court of
Appeal, for Objector and Appellant.
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Petitioner and Respondent.