In re D.D. CA4/3 ( 2021 )

Filed 9/3/21 In re D.D. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re D.D. et al., Persons Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY, G059970
Plaintiff and Respondent, (Super. Ct. Nos. 19DP0601,
19DP0602, 19DP0603)
v.
OPINION
L.D.,
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Dennis J.
Keough, Judge. Affirmed.
Law Offices of Vincent W. Davis & Associates and Vincent W. Davis, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
In July 2018, the police arrested L.D. (mother) for endangering her
children: Emily (age 2); Christopher (age 8), and Dylan (age 10). The Los Angeles
Department of Children and Family Services (DCFS) took the children into custody. The
juvenile court declared the children dependents and ordered reunification services. The
matter was transferred to Orange County. Dylan and Christopher were placed with their
maternal grandmother (MGM) and Emily was placed with extended family members.
In August 2020, the juvenile court terminated mother’s reunification
1
services and set a permanency planning hearing. (Welf. & Inst. Code, § 366.26.)
Mother did not challenge the rulings in a writ proceeding.
In January 2021, just prior to the section 366.26 hearing, mother filed a
petition to modify the prior orders. (§ 388.) The court summarily denied the section 388
petition, found the children adoptable, found the beneficial relationship exception to the
termination of parental rights did not apply, and terminated parental rights.
Mother argues the court erred by summarily denying the section 388
petition and by finding the benefit exception did not apply. We affirm the court’s orders.
I
FACTS AND PROCEDURAL BACKGROUND
On July 21, 2018, mother and her children were living in a recreational
vehicle (RV). Mother parked the RV across the street from a restaurant, where she was
going to have dinner with a man whom she had met online. Mother left the children
alone in the RV, telling them she would return soon. After mother had dinner with the
man, she went to his house to have sex in exchange for money. Mother called the police
reporting the man had assaulted, raped, and robbed her.
1
Further undesignated statutory references are to the Welfare and Institutions Code.
2
The next day, police learned mother had three children. Initially, mother
claimed her children were being cared for by her sister. However, mother eventually
admitted the children were not being supervised. The police went to the RV and found
Emily in a soiled and crusty diaper. The police noted: the RV was filthy and unsanitary;
the sink was filled with trash and dirty dishes; the RV had no power and was not
connected to any utilities; and there was no food accessible to the children. DCFS was
notified and took the children into protective custody.
Jurisdiction and Disposition Proceedings
In September 2018, DCFS filed a dependency petition alleging mother was
an abuser of alcohol and marijuana. DCFS alleged mother left the children in a
dangerous situation and had done so on prior occasions. Mother admitted the children
were often made to “take care of themselves” while she recovered from daily hangovers
(there were numerous prior DCFS investigations dating back several years).
In November 2018, the juvenile court declared the children dependents.
The court ordered family reunification services, including substance abuse treatment and
testing for mother, a 12-step program, parenting courses, and individual counseling. The
court ordered monitored visitations with the children.
Six-Month Review Hearing
2
In May 2019, the juvenile court conducted a six-month review hearing.
(§ 366.21, subd. (e).) DCFS noted mother was making efforts on her case plan but was
still testing positive for marijuana. DCFS reported mother was inappropriate during her
2
Many of the hearings were continued past their normal time frames for various reasons.
The later continuances were primarily related to the COVID-19 pandemic.
3
visitations (by discussing the dependency case with the children) and the circumstances
had generally not changed since the prior hearing.
The juvenile court noted mother was now residing in Orange County and
had just enrolled in parenting classes. The court was unaware of mother’s progress in her
mental health treatment plan. Mother’s contacts with the social worker were
inappropriate, which led DCFS to have concerns regarding her mental health. The court
also noted mother’s reported inappropriate behaviors during monitored visitations. The
matter was later transferred to Orange County.
12-Month Permanency Hearing
In September 2019, the juvenile court conducted a 12-month permanency
hearing. (§ 366.21, subd. (f).) The Orange County Social Services Agency (SSA) filed a
36-page status review report.
SSA reported the children were fathered by different men and Christopher’s
3
father was recently deceased. Mother had participated in a substance abuse program and
had completed a parenting education program. Mother had consistently complied with
drug testing and had negative results, except for marijuana. Dylan and Christopher had
been placed with MGM; Emily had been placed with a foster couple (extended family
members). The children were doing well in their respective placements. Mother’s
visitations had recently been liberalized to include unsupervised visitations.
18-Month Permanency Review Hearing
In June and July 2020, the juvenile court conducted an 18-month
permanency review hearing. (§ 366.22.) SSA filed an 87-page status review report, and
3
The two remaining fathers have never been a part of the dependency proceedings.
4
11 addendum reports. SSA recommended the court terminate reunification services and
schedule a permanency planning hearing. (§ 366.26.)
SSA reported mother did not demonstrate an ability to control her impulses
and provide a stable living environment for the children. Mother’s visitations had
returned to monitored visitations. During visitations, mother repeatedly talked to the
children about coming home to live with her. Mother had participated in multiple
substance abuse treatment programs but did not receive a certificate of completion.
The juvenile court found mother continued to exhibit impulse control issues
and mental instability. The court found mother had broken “100 percent of the . . .
visitation parameters” which led to the termination of in-person visitations. The court
found “the children cannot be safely returned and maintained in mother’s care.” The
court terminated reunification services and set a section 366.26 hearing. Mother did not
4
challenge those orders.
Intervening Restraining Order
In September 2020, mother reported to DCFS that Dylan had sent her a
message that MGM had abused him. Dylan and Christopher denied these accusations.
Mother went to MGM’s home for an unmonitored visitation while MGM was at work.
Mother had also gone to the boys’ school, but the staff would not allow her to pick up the
children.
In October 2020, mother told her counselor “the children were Utopian and
needed to be freed.” Mother texted the social worker: “I won’t follow rules that ARE
WRONG!!! [¶] I will go see my kids bc [sic] it’s the right thing to do[.] [¶] You are on
the wrong side of history. Unconsciousness is the old world. There is no need to
4
“All court orders . . . made at a hearing in which a section 366.26 permanency planning
hearing is set must be challenged by a petition for extraordinary writ.” (In re Merrick V.
(2004) 122 Cal.App.4th 235, 247.)
5
‘protect’ my children that’s why I will go see them.” The juvenile court issued a
restraining order protecting the children from mother with limited visitation. Mother
later told the court: “I will not follow rules that tell me to break the bond and connection
with my children.”
In November 2020, mother broke into MGM’s home when the family was
out to dinner. Mother climbed up a tree and entered the home. Christopher found mother
hiding in the bathtub/shower and ran out yelling there was a ghost. The police eventually
arrived and arrested mother for violating the restraining order.
Permanency Planning Hearing
In January 2021, the juvenile court presided over a permanency planning
hearing. (§366.26.) SSA filed a 224-page report and a 30-page addendum report. SSA
recommended the court find each of the children adoptable and terminate parental rights.
(§ 366.3.)
The juvenile court summarily denied mother’s section 388 petition for
modification. After hearing testimony, the court found the children adoptable, found
none of the statutory exceptions to the termination of parental rights applied, and
terminated mother’s parental rights (the witness’ testimony and the court’s rulings will be
covered in greater detail in the discussion section of this opinion).
II
DISCUSSION
Mother argues the juvenile court erred: A) by denying her December 2020
section 388 petition without an evidentiary hearing; and B) by finding the beneficial
relationship exception to the termination of parental rights did not apply.
6
A. Summary Denial of Section 388 Petition
“The purpose of the California dependency system is to ‘provide maximum
safety and protection for children . . . and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk . . . .’ [Citation.] The dependency
system is child-centered and is designed to protect the child, reunify the family where
safe for the child and find a permanent home for the child when reunification is not
possible. Its guiding light is the child’s best interests.” (In re Y.M. (2012) 207
Cal.App.4th 892, 913; see § 300.2.) If reunification is not possible and the juvenile court
ceases reunification services, the focus of the proceedings “‘shifts to the needs of the
child for permanency and stability.’” (In re Celine R. (2003) 31 Cal.4th 45, 52.)
1. Legal Principles Governing Section 388 Petitions
“A juvenile court order may be changed, modified or set aside under
section 388 if the petitioner establishes by a preponderance of the evidence that (1) new
evidence or changed circumstances exist and (2) the proposed change would promote the
best interests of the child. [Citation.] A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent’s
request.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
“However, if the liberally construed allegations of the petition do not make
a prima facie showing of changed circumstances and that the proposed change would
promote the best interests of the child, the court need not order a hearing on the petition.
[Citations.] The prima facie requirement is not met unless the facts alleged, if supported
by evidence given credit at the hearing, would sustain a favorable decision on the
petition.” (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
“The juvenile court’s determination to deny a section 388 petition without a
hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile
7
court’s denial of appellant’s section 388 petition unless we can determine from the record
that its decisions ‘“exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.”’” (In re Brittany K. (2005) 127 Cal.App.4th 1497,
1505.) “An abuse of discretion [is] . . . an arbitrary, capricious or patently absurd
determination.” (In re Marcelo B. (2012) 209 Cal.App.4th, 635, 641-642.)
2. Relevant Proceedings
A few days before the section 366.26 hearing, mother filed a petition for
modification. (§ 388.) Mother sought to change the juvenile court’s prior orders and
make new orders to: “1) Stop the .26; 2) Reinstate reunification services; 3) Increase
Mother’s visitation; and 4) Return kids to mother.” Mother attached exhibits. Mother
also averred in a declaration: “I keep growing every day and I plan to continue my
growth as I am in school for psychology and hypnotherapy and I’m writing a book on
communication.”
At the start of the section 366.26 hearing, the court considered mother’s
section 388 petition. SSA argued mother was relying on the same evidence presented at
the prior hearing: “It is identical in every single way. It is identical in the individuals
identified; it’s identical in the letters that are presented; it’s identical in the information
that is contained within those letters.” Children’s counsel also argued mother’s exhibits,
except for her declaration, predated the 18-month review hearing. Mother’s counsel
argued “there has been some change.” Counsel argued mother “has stopped smoking
marijuana . . . and she’s currently being treated by a psychiatrist and is on psychiatric
medication, including a mood stabilizer.”
The juvenile court ruled:
“The court is keenly aware of the rule of liberality that applies in the
instruction of a 388 in terms of analyzing whether a prima facie case has been set forth.
8
“The court obviously, since we’re dealing with a change of circumstances,
necessarily must evaluate this in terms of a measuring period.
“The court certainly is aware that this matter was litigated at the hearing in
which services were terminated.
“The references in mother’s declaration and the supporting documents with
reference to that do indeed recapitulate a number of particular issues that certainly
predate the termination of services.”
After quoting several sentences from mother’s declaration the court stated:
“In reading mother’s declaration and reviewing the exhibits that she has
attached . . . it is indeed, as counsel has pointed out, a recapitulation of what has been
previously presented. [W]hat is readily apparent in reading the declaration and
considering the exhibits is that it would appear that mother’s fundamental approach is
much the same as it was at the previous litigated matter.
“And even liberally construing mother’s 388 . . . . The court, even given
the liberality of construction . . . is going to find that the prima facie case has not been set
forth, and the court is going to deny the 388 for failure to make a prima facie showing.”
3. Analysis
Citing two opinions, mother argues: “The standard of review for a denial
of a petition without a hearing is de novo review.” We disagree. The two opinions
confirm the correct standard of review is abuse of discretion. (In re Angel B. (2002) 97
Cal.App.4th 454, 459-460; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.)
In the case of In re Angel B., a mother petitioned a juvenile court to modify
a prior order, and the court denied the section 388 petition without a hearing. (In re
Angel B., supra, 97 Cal.App.4th at pp. 459-460.) On appeal, mother argued “the juvenile
court violated her constitutional rights by denying her request for a hearing” and further
argued “the court should have granted her either supervised custody or reunification
9
services.” The Court of Appeal stated it would “review such a summary denial for abuse
of discretion [citation], and resolve the constitutional issue as a matter of law.” (Id. at
p. 460.) The appellate court found “the statutory scheme itself is constitutional because
of its many safeguards.” (Id. at p. 461.) And as far as the merits of the mother’s claims,
the Court of Appeal found “the juvenile court did not abuse its discretion by denying the
section 388 petition with no hearing.” (Id at p. 465, italics added.)
Similarly, in the case of In re Jeremy W., a mother petitioned a juvenile
court to modify a prior order, and the court summarily denied the section 388 petition
without a hearing. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1412.) Based on the facts
of the case, the Court of Appeal concluded the juvenile court “abused its discretion in
denying [mother] a hearing on her section 388 motion to set aside its earlier order[.]”
(Id. at p. 1413, capitalization & partial italics omitted.)
Mother does not appear to be challenging the constitutional framework of
section 388. Therefore, we will review the juvenile’s court’s summary denial of mother’s
section 388 petition for an abuse of discretion. (See Angel B., supra, 97 Cal.App.4th at
pp. 459-460; see also Jeremy W., supra, 3 Cal.App.4th at p. 1416.)
Based on the mother’s section 388 petition, the juvenile court did not find a
change in circumstances since its prior rulings. The court reviewed the pertinent
documents and was keenly aware of the underlying facts of the case. As the court
observed, virtually all the exhibits submitted by mother in support of the modification
petition predated the prior orders of the court. The only significant “changes” noted by
mother’s counsel in his argument were that mother had recently stopped using marijuana
and was on psychiatric medications; however, mother did not make those averments in
her declaration. (See In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 6 [“It is axiomatic that
the unsworn statements of counsel are not evidence”].)
Prior to its ruling, the juvenile court summarized the relevant legal
principles under section 388. The court also summarized its legal analysis, which was
10
based on the appropriate law and the relevant evidence before the court. The court
plainly did not approach its decision in an arbitrary or capricious manner. In short, while
we recognize other courts may have elected to conduct a hearing, or may have come to a
different decision, we cannot say this court’s ruling was beyond the bounds of reason.
Thus, we affirm the court’s summary denial of mother’s section 388 petition.
Mother also argues: “In deciding whether to grant a hearing on a section
388 petition, the juvenile court is to liberally construe the petition in favor of granting a
hearing to consider the petitioner’s request. [Citation.] If the petition presents any
evidence a hearing would promote the best interests of the child, the court must order a
hearing.” (Italics added.) We disagree.
A petitioner needs to make a prima facie showing of both elements under
section 388. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) That is, the petitioner
must make a prima facie showing of changed circumstances “and the proposed change
would promote the best interests of the child,” otherwise, “the court need not order a
hearing on the petition.” (Ibid., italics added.)
Here, the court determined mother did not make a prima facie showing of
changed circumstances. Even if we assume mother made a prima facie showing that “a
hearing would promote the best interests of” her children, mother would not have
satisfied both of the required elements in order to trigger a hearing under section 388.
B. Beneficial Relationship Exception to the Termination of Parental Rights
At the permanency planning hearing, the juvenile court determines a
permanent plan for the child, and may order one of three alternative plans: adoption,
guardianship, or long-term foster care. (§ 366.26, subd. (b); see In re J.C. (2014) 226
Cal.App.4th 503, 528.) “‘[T]here is strong preference for adoption over the alternative
permanency plans.’” (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395.)
11
Generally, if the juvenile court finds the child adoptable the court must
terminate parental rights. “[T]o avoid termination of parental rights and adoption, a
parent has the burden of proving, by a preponderance of the evidence, that one or more of
the statutory exceptions to termination of parental rights set forth in section 366.26, . . .
apply.” (In re Anthony B., supra, 239 Cal.App.4th at pp. 394-395.)
1. Legal Principles Regarding the Beneficial Relationship Exception
Under the benefit (or parental bond) exception, a parent is required to show
“(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.” (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
“The first element—regular visitation and contact—is straightforward. The
question is just whether ‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit
from continuing the relationship.’ [Citation.] Again here, the focus is the child. And the
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.’” (Caden C.,
supra, 11 Cal.5th at p. 632.)
“Concerning the third element—whether ‘termination would be detrimental
to the child due to’ the relationship—the court must decide whether it would be harmful
to the child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th
at p. 633.)
As to the first two elements, the substantial evidence standard of review
applies. “The determination that the parent has visited and maintained contact with the
child ‘consistently,’ taking into account ‘the extent permitted by the court’s orders’
12
[citation] is essentially a factual determination. It’s likewise essentially a factual
determination whether the relationship is such that the child would benefit from
continuing it.” (Caden C., supra, 11 Cal.5th at pp. 639-640.)
“The third element—whether termination of parental rights would be
detrimental to the child—is somewhat different. As in assessing visitation and the
relationship between parent and child, the court must make a series of factual
determinations. These may range from the specific features of the child’s relationship
with the parent and the harm that would come from losing those specific features to a
higher-level conclusion of how harmful in total that loss would be. The court must also
determine, for the particular child, how a prospective adoptive placement may offset and
even counterbalance those harms. In so doing, it may make explicit or implicit findings
ranging from specific benefits related to the child’s specific characteristics up to a higher-
level conclusion about the benefit of adoption all told. All these factual determinations
are properly reviewed for substantial evidence.” (Caden C., supra, 11 Cal.5th at p. 640.)
“Yet the court must also engage in a delicate balancing of these
determinations as part of assessing the likely course of a future situation that’s inherently
uncertain. The decision is not the same as a determination whether to transfer the child
from the custody of one caregiver to another, but it does require assessing what the
child’s life would be like in an adoptive home without the parent in his life. [Citation.]
The court makes the assessment by weighing the harm of losing the relationship against
the benefits of placement in a new, adoptive home. And so, the ultimate decision—
whether termination of parental rights would be detrimental to the child due to the child’s
relationship with his parent—is discretionary and properly reviewed for abuse of
discretion.” (Caden C., supra, 11 Cal.5th at p. 640.)
13
2. Relevant Testimony
At the section 366.26 hearing, mother called five witnesses: S. Bugarin
(the SSA social worker), Dylan, Christopher, Emily, and mother.
Bugarin testified Dylan was “parentified,” meaning he had assumed the
role of a parent by attempting to redirect mother when she violated the rules during
visitations. Bugarin said Dylan loved his mother, but he was very affected by her
breaking into MGM’s home. Bugarin let Dylan “know that it was okay if he wanted to
go through legal guardianship, and he said he wanted to be adopted.” Bugarin did not
know of any benefits to Dylan in keeping a relationship with his mother. Bugarin said
Dylan would be sad, but he has a lot of support “as well as he has a loving home where
he’s at right now.”
Bugarin testified Christopher understood the difference between legal
guardianship and adoption. Christopher has “expressed a lot of anxiety, and has
verbalized that he does not want to return to the mother’s care, as grandma . . . will take
him to school on time. He’s thriving in placement. He’s doing very well there, and he
has continued to express that he wants to be adopted by the grandmother.”
Bugarin testified the termination of parental rights would not be detrimental
to Emily, who had been in a prospective adoptive placement for more than half of her
life. Emily refers to her caregivers as “mommy” and “daddy.” Bugarin opined Emily
had essentially no emotional bond with mother.
Dylan was asked (over a video call) if he would still want to be adopted if it
meant he would never see his mother again. Dylan vacillated and became emotionally
upset. After a break in the proceedings, and a further explanation by the court, Dylan
said he would choose adoption. Christopher testified he believed his mother “is in a state
where she’s mentally ill, and I don’t think she should have custody of us.” Christopher
said, “I feel like I have perfect structure. Like, I have a set schedule. And I also feel like
I’ll get the right education. Like, with mom, I think she didn’t care about my education,
14
but grandma really does. And she really cares, so that’s why. And I feel like I’ll get the
right education and . . . that I know that she’s always going to tell the truth.” Emily
appeared on a video call with her prospective adoptive father, but the parties agreed she
was not qualified to testify as a witness.
Mother testified she was close to each of her children. As to Dylan, mother
said, “He feels loved and deeply accepted and celebrated for who he is. Dylan shares
things with me that he doesn’t feel comfortable sharing with anyone else.” Mother
testified, “Christopher, I think, is very brainwashed by my mother.” When asked how
Emily would react to not seeing her in the future, mother said, “It’s going to be absolutely
devasting to her and to me. But to her, to my kids, that’s one of the things that’s so
heartbreaking, is they’re really suffering. They really want to see me. Going to play with
my children in a park is not going to hurt anyone.”
3. The Juvenile Court’s Rulings
The juvenile court found SSA had met its burden and established by clear
and convincing evidence each of the children was generally and specifically adoptable.
The court noted the burden now shifted to the mother to establish one of the exceptions to
the termination of parental rights and adoption applied. After argument, the court
announced its ruling concerning the benefit exception:
“The court looks at, amongst other things, the age of each child, the portion
of each child’s life spent within the parents’ custody, the positive or negative effects of
the interaction between the parents and the children, and the child’s particular needs are,
again -- are just but some of the variables which must be evaluated along with, again, the
very specifics of this case. And, again, the relationship, in each case, will differ and is to
be evaluated on its strengths and weaknesses and on its merits.
“And the court, in listening to Dylan’s testimony, it discerned from Dylan’s
testimony, again, a very conflicted young man, who was torn and anguished by the
15
prospects that face him in his young life. And this is something that -- it is readily
apparent that he has thought about, undoubtedly, that he has -- he has grieved over, and
that grief was apparent in his testimony. He cried, and he was unable to continue to
discuss this issue for a significant period of time. I would estimate somewhere between
approaching 20 minutes; certainly in that neighborhood, 15 to 20.
“And, again, these are difficult issues, and Dylan has been a consumer of
this process over the years, and that he arrived at the conclusion that --- that what came
through in his testimony was his desire for certainty, for the room and the environment in
which he can -- his needs can be met, in which he can grow, in which the chaos and
disruptive qualities of life can be minimized, and he can get on with the serious business
of being a 12-year-old, and this was something that was -- obviously, that was not easy
for him to come to.
“I think he does care for his mother, and the court is tasked and does make
the independent evaluation, absent an objection by Dylan to be adopted, is whether --
notwithstanding his statement, that does not end the inquiry. The court makes this
evaluation and arrives at a decision based on the facts that the -- that the exception with
reference to Dylan does not apply, that the benefits of a continuing relationship with his
mother, given the nature and the quality of the relationship, do not outweigh the benefits
to be derived through adoption and through permanency that is going to be provided by
adoption.
“The court would note that the same considerations are brought to bear by
the court, saying the sensitivity is brought to bear by the court in evaluating Christopher’s
circumstances. So the court is no less cautious in making this evaluation,
notwithstanding what the court might characterize as Christopher’s more casual or less
emotional reaction to the issues that were -- that he was presented with, that one could
interpret that in a couple of different ways.
16
“Certainly, one way which it could be interpreted, and I think the better part
of caution is the screening through which the court does evaluate it is through the
understanding of a 10-year-old, and the consequences of the impact on his life is
something that, at 10, he’s not in a position to make a careful and as considerate
evaluation as a court is required to bring to bear.
“So the court looks at Christopher’s situation and, indeed, Emily[‘s]
situation with the same sensitivity and the same concern for the nature of the importance
of family, family connection that it does for Dylan’s. And the court, unfortunately, for
mother, is going to -- and has reached and does reach the conclusion that under [various
published cases], that the nature of the relationship that mother has with each of the
children is not such as to outweigh each child’s -- the benefit of each child to be derived
through permanency of adoption.”
4. Analysis
Here, there is no dispute mother maintained visitations with the children,
although the visitations were often problematic. Further, there was some evidence
mother’s relationship with the children was, on some level, beneficial. However, the
testimony of the witnesses and the reports provided substantial evidence to support the
juvenile court’s ruling that mother failed to establish the severance of the parental
relationship would be harmful to the children. (See In re G.B. (2014) 227 Cal.App.4th
1147, 1165-1166 [“‘“it is only in an extraordinary case that preservation of the parent’s
rights will prevail over the Legislature’s preference for adoptive placement”’”].)
Further, when “weighing the harm of losing the relationship against the
benefits of placement in a new, adoptive home” there is no question—given the court’s
extensive, thoughtful, and heartfelt analysis—that the court did not reach its decision in
an arbitrary or capricious manner. (See Caden C., supra, 11 Cal.5th at p. 640.)
17
Thus, the juvenile court did not commit error when it ruled the benefit
exception to the statutory preference for adoption did not apply. The published opinions
cited by mother on this point are unpersuasive and/or factually distinguishable.
(See, e.g., In I.R. (2014) 226 Cal.App.4th 201, 212-213 [juvenile court abused its
discretion in finding two children were within beneficial parent relationship exception to
the preference for adoption]; In re Scott B. (2010) 188 Cal.App.4th 452, 471 [court erred
in finding benefit exception did not apply where child preferred to live with mother and a
court appointed special advocate repeatedly stated mother had close relationship with the
child and it would be detrimental for parental bond to be disrupted]; In re Amber M.
(2002) 103 Cal.App.4th 681, 690-691[court erred in finding benefit exception did not
apply where three experts testified children’s relationship with their parent clearly
outweighed the benefits of adoption]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576
[the juvenile “court properly concluded no exceptional situation existed to forego
adoption”].)
III
DISPOSITION
The orders of the juvenile court are affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, Division Seven,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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