In re E.P. CA4/1 ( 2023 )

Filed 1/27/23 In re E.P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.P. et al., Persons Coming
Under the Juvenile Court Law.
D080757
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. SJ13124B-D)
Plaintiff and Respondent,
v.
V.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and
Respondent.
This case follows a familiar pattern. A dependency case is initiated
because the parent suffers from a significant substance abuse disorder.
Reunification services include substance abuse treatment, but for any
number of understandable reasons the parent makes inconsistent progress in
treatment for their addiction, often experiencing relapses. Ultimately,
reunification services are discontinued and a hearing is set to terminate
parental rights. In the meantime, the children who are the subject of the
dependency petition have adjusted reasonably well to placement with a
prospective adoptive family.
But initial struggles in treatment often provide the foundation for later
success. And when the parent sees some initial progress, they typically file a
petition under Welfare and Institutions Code 1 section 388 seeking to forestall
the anticipated adoption by modifying the existing juvenile court orders.
These petitions invoke our fundamental need to believe in the resilience of
the human spirit, and nearly always involve difficult (and sometimes heart-
wrenching) decisions by juvenile court judges in light of constantly evolving
circumstances. The decisions require judges to critically assess the parent’s
progress in recovery in conjunction with the children’s need for permanence
and stability. Demanding as it is, this evaluation is one that the juvenile
court is best suited to make.
In this case, V.R. (Mother) appeals a juvenile court order summarily
denying her section 388 petition as to three of her minor children. Her
petition requested modification of a March 2021 order that found return of
the children to Mother would be detrimental to the children’s physical or
emotional well-being. Mother also challenges the juvenile court’s order
1 All undesignated statutory references are to the Welfare and
Institutions Code.
2
terminating her parental rights under section 366.26. She contends the court
should have applied the beneficial parent-child relationship exception to
adoption pursuant to section 366.26, subdivision (c)(1)(B)(i)). Relying on the
thoughtful judgment of the dependency judge, we disagree and affirm the
orders.
FACTUAL AND PROCEDURAL BACKGROUND
In 2019, Mother and J.P. (Father) lived together with their three minor
children—E.P. (three years old), M.P. (one year old), and A.P. (born in
September 2019) (collectively, the children).2 In October 2019, A.P.’s
umbilical cord tested positive for methamphetamine shortly after his birth. A
referral was made to the San Diego County Health and Human Services
Agency (Agency), and Mother admitted she used methamphetamine during
and after her pregnancy with A.P.
Approximately one month after A.P.’s birth, police responded to the
family’s residence to address a call regarding domestic violence. When they
arrived, Father was inside the home with the children but Mother was not
present. Police searched the home and found drug paraphernalia within
reach of the youngsters. Father was arrested and the children were taken to
their grandparents’ homes.
Some three weeks later, the Agency filed juvenile dependency petitions
alleging the children were within the jurisdiction of the juvenile court
pursuant to section 300, subdivision (b). Specifically, the petitions claimed
the children suffered, or were at substantial risk of suffering, serious physical
harm as a result of Mother’s continuing drug use. They also referenced a
prior dependency case in which Mother’s child tested positive for
2 Father is not a party to this appeal and will be discussed only when
relevant.
3
methamphetamine at his birth in 2015.3 The petitions asserted that Mother
continued to use drugs despite participating in treatment programs in her
prior dependency case.
A. Initial Dependency Proceedings
The juvenile court addressed the dependency petitions at the detention
hearing in early November. The court made prima facie findings on the
petitions and detained the children at Polinsky Children’s Center or an
approved foster home. It ordered supervised visitation with the children and
voluntary services for the parents. The matter was then set for a jurisdiction
and disposition hearing.
In the month following the detention hearing, Mother repeatedly failed
to attend her scheduled visits with the assigned social worker. But in
December 2019, Mother expressed interest in receiving inpatient substance
abuse treatment. She enrolled in a drug treatment program and obtained a
sponsor, later transitioning to a different program. The juvenile court then
ordered the parents to participate in dependency drug court.
At the jurisdiction and disposition hearing in February 2020, the
juvenile court made true findings on the petitions and declared the children
dependents of the juvenile court. They were formally removed from the
3 Mother’s prior dependency case involves a minor who is not the subject
of this appeal, but who is referenced by the parties and in the record as
evidence of Mother’s extensive history of drug use. The record demonstrates
that, as part of the prior dependency case, the Agency offered Mother
substance abuse treatment services. Initially, Mother was compliant with
the programs offered to her by the Agency and she completed a drug
treatment program and parenting classes. But she failed to maintain
consistency in the treatment services and drug testing, and the child was
ultimately placed with his father. A.P. was born with methamphetamine in
his system approximately two months after this child was removed from
Mother’s custody.
4
parents’ custody and placed in a foster home. The court ordered the Agency
to provide the parents with reunification services and set the matter for
subsequent review hearings.
B. Review Hearings
For several months following the jurisdiction and disposition hearing,
Mother maintained employment and pursued therapy, drug treatment, and
parenting classes. She also participated in dependency drug court and
submitted negative drug tests. Mother received positive feedback from her
service providers and the Agency allowed her to have unsupervised visits
with the children. But in early August 2020, Mother relapsed and admitted
to methamphetamine use.
The Agency submitted a status review report to the juvenile court that
documented Mother’s treatment progress and subsequent relapse. At the six-
month review hearing in August 2020, the juvenile court found that Mother’s
progress toward alleviating or mitigating the causes leading to the children’s
placement was adequate. It ordered the Agency to continue to provide
reunification services to Mother.
Prior to the 12-month review hearing, the Agency submitted a status
review report and addendum report to the juvenile court. In the reports, the
Agency documented Mother’s failure to maintain consistent contact with the
Agency. It further reported that Mother struggled to maintain her sobriety,
continued to use drugs, and inconsistently participated in drug court. While
Mother did reenter a drug treatment program in early 2021, she was later
discharged from the program and again lost contact with the Agency. The
Agency recommended that the juvenile court terminate reunification services
and set the matter for a section 366.26 hearing.
5
At the 12-month review hearing in March 2021, the juvenile court
found that return of the children to Mother’s custody would create a
substantial risk of detriment to the children’s physical or emotional well-
being. It also determined that the Agency had provided the parents with
reasonable reunification services, but that the parents had made minimal
progress. Accordingly, the court terminated reunification services for both
parents and set the matter for a section 366.26 hearing.
C. Children’s Progress During the Reunification Period
During the reunification period, the children were placed in separate
foster homes, and each child required additional care and services. E.P.
exhibited speech and developmental delays and had behavioral problems that
affected his ability to interact with his caregivers, siblings, and peers. As a
result, he required behavioral and occupational therapy. M.P. had medical
issues related to a fibrous cyst, and he received speech therapy and other
services through the San Diego Regional Center. A.P. displayed motor delays
and was not appropriately meeting the expected milestones for a child of his
age. He received physical therapy to improve his development and other
services through the San Diego Regional Center.
In March 2021, the Agency indicated that the children were receiving
the appropriate care and services to meet their needs and were doing well in
their respective foster homes. E.P. was enrolled in preschool and was
reportedly having fewer behavioral outbursts. M.P. was attending both
preschool and speech therapy, and he was able to use two-word phrases and
sign language. A.P. was receiving physical therapy and had started to walk.
6
D. Section 366.26 Hearing and Section 388 Petition
1. Addendum Reports
In preparation for the section 366.26 hearing, the Agency asked for
several continuances to pursue adoption options for the children. During this
time, the Agency submitted several addendum reports that were entered into
evidence at the section 366.26 hearing without objection. The addendum
reports documented that the children’s maternal great-aunt, C.G., expressed
interest in adopting them. C.G. underwent an assessment process with the
Agency and in January 2022 all three children were placed in her custody.
Thereafter, C.G. reported that the children were bonded with her and doing
well. She regularly followed-up with the children’s recommended services,
therapies, and school meetings. C.G. confirmed that she was motivated to
adopt the children and she completed classes related to their adoption.
The addendum reports further discussed the children’s relationship
with Mother. C.G. said that only E.P. remembered his parents because M.P.
and A.P. were very young when they were placed in foster care. She
indicated that after M.P. and A.P. interacted with Mother, they were able to
transition back to her care without concern. In contrast, when E.P.’s visits
with Mother concluded, he became upset and asked to go home with her.
C.G. observed Mother and E.P. tell each other “I love you” and “I miss you,”
and she believed they shared a loving relationship.
The Agency reported that Mother struggled to maintain her sobriety
during this timeframe. In January 2022, she gave birth to another child who
tested positive for controlled substances. But following the birth of this child,
Mother stopped using drugs, completed a three-month residential treatment
program, and transitioned to outpatient treatment. During her treatment,
she continued to have in-person and telephonic visitation with the children.
7
In the addendum reports, the Agency described Mother’s hard work in
her treatment program. Even so, it expressed concern about Mother’s ability
to maintain her sobriety outside the structured environment of an inpatient
treatment program. The Agency also stated that although they appeared to
enjoy their visits with Mother, the children did not seek her out to meet their
needs. The reports noted that the children were doing well with C.G., who
continued to pursue their adoption. Consequently, the Agency concluded that
the benefits of adoption outweighed the value of a continued relationship
between Mother and the children.
2. Section 388 Petition
A day prior to the July 2022 section 366.26 hearing, Mother filed a
section 388 modification petition. The petition sought to change the March
2021 order finding that placement of the children with Mother was
detrimental to the children. Mother asked the juvenile court to return
placement of the children to her.4
In support of her petition, Mother provided letters from her drug
treatment program and a drug court representative. The letters confirmed
that Mother completed a residential program in April 2022 and was engaged
4 In her opening brief, Mother construes her section 388 petition to
include a request for additional reunification services and further visitation
with the children. The Agency contends Mother forfeited this claim because
she failed to raise the issue with the juvenile court. We disagree with the
Agency’s contention. The juvenile court was required to liberally construe
the section 388 petition in favor of its sufficiency. (In re D. R. (2007) 155
Cal.App.4th 480, 487.) Under this standard, Mother’s request to modify the
March 2021 order encompassed the interrelated orders within the document,
including the order terminating reunification services. If the juvenile court
had concluded that return of the children to Mother was appropriate, this
would have affected other orders within the same document, including the
order terminating reunification services. Accordingly, we conclude the issue
was not forfeited.
8
in her outpatient program. She also provided proof of negative drug tests and
a declaration that she had been sober since January 2022. Mother further
stated she was employed and living in a sober living home that would allow
the children to reside with her.
After hearing argument from the parties, the juvenile court concluded
that Mother did not make a prima facie showing of changed circumstances,
and accordingly denied the petition. It specifically found that the
circumstances related to Mother’s drug use were changing—but not
sufficiently changed—to warrant a modification of the prior order. While the
court did commend Mother’s treatment progress in the six months prior to
the section 366.26 hearing, it explained that a six-month period of sobriety
was relatively short given Mother’s long history of substance abuse. The
court ultimately determined it was not in the best interests of the children to
modify the order due to the length of the case and the children’s need for
permanence and stability.
3. Section 366.26 Hearing
After denying the section 388 petition, the juvenile court proceeded to
address the termination of parental rights. Without objection, the Agency
offered into evidence the section 366.26 report and seven addendum reports.
Mother, Father, and a social worker assigned to the children’s case also
testified.
The social worker testified that the benefits of adoption for the children
outweighed the value of a continued relationship with Mother. Specifically,
she noted that E.P. did not cry or ask for Mother when he was home with
C.G. because he had become acclimated to being away from his parents. The
social worker further explained that while there was an initial adjustment
period for M.P. when he began living with his siblings, C.G. provided a safe,
9
family-oriented environment with which he ultimately became comfortable.
As to A.P., the Agency believed that C.G. provided him with the medical and
therapeutic services he needed to feel safe and stable.
The social worker also indicated that the children’s caregiver and
prospective adoptive parent—their maternal great-aunt—was hopeful the
children would continue to have contact and a relationship with Mother.
Still, the juvenile court acknowledged that it could not presume the relative
caregiver would allow the parental relationship to continue following
adoption. The social worker responded by stating that, even assuming the
children’s adoptive parents did not allow the children to have contact with
Mother, the benefits of adoption outweighed a continued parental
relationship.
Mother also testified. She acknowledged her battle with addiction but
maintained she would like to be sober and a part of her children’s lives. She
indicated that during her visits with the children, they called her “Mom” and
gave her hugs and kisses. Mother went on to discuss an incident that led to
the termination of her visits with the children at their visitation center. She
admitted answering her cellphone during a visit with the children, but
explained that the call was from the house manager at her sober living home
regarding a potential COVID-19 exposure.
After the conclusion of evidence, Mother asked the juvenile court to find
that the beneficial parent-child relationship exception to adoption applied.
She argued that her visitation with the children was largely consistent
throughout the case and a continued parental relationship would benefit the
children. She relied on the fact that the children were excited to see her
during their visits and maintained that terminating their relationship would
10
be detrimental. Mother accordingly requested that the court order a
guardianship in lieu of adoption.
In making its ruling, the juvenile court noted that the evidence clearly
showed the parents loved the children, and the children had affection for
their parents. Addressing the legal and factual issues presented by the case,
it found that the children were both generally and specifically adoptable. The
court then proceeded to address Mother’s argument regarding the beneficial
parent-child exception to adoption. It recognized that the exception included
three elements: (1) regular visitation and contact; (2) a beneficial parental
relationship; and (3) overall detriment to the children from a termination of
that relationship.
Although it termed both issues “close,” the juvenile court found that
Mother had met her burden as to each of the first two elements. It concluded,
however, that the third element had not been proven by a preponderance of
the evidence. The court framed the dispositive issue as follows: “Does the
benefit of placement in a new adoptive home outweigh the harm the children
would experience from the loss of a significant, positive, emotional
relationship with the parent?” In discussing this inquiry, the court reiterated
that the evidence clearly showed the parents loved the children. But it then
weighed this finding against the benefits of stability and permanency that
had been sought for the children from the inception of the case. The juvenile
court ultimately concluded that the benefits of adoption outweighed the
detriment of ending the parental relationship. In ordering the termination of
parental rights, it found by clear and convincing evidence that none of the
exceptions in section 366.26, subdivision (c)(1) applied, and that adoption was
in the best interests of the children.
11
DISCUSSION
A. Section 388 Petition
Mother argues the juvenile court erred by summarily denying her
section 388 petition without first conducting an evidentiary hearing. She
contends she presented abundant evidence of changes she made in her life
since the March 2021 order finding that return of the children to her custody
would be detrimental. Specifically, Mother asserts that evidence of her
sobriety, completion of a drug treatment program, housing, and employment
constituted sufficiently “changed circumstances” that would justify
modification of the prior court order. She also maintains that modification of
the March 2021 order was in the best interests of the children because it
would have allowed the children to continue their relationship with and be
raised by their own mother.
The Agency responds that Mother failed to make a prima facie showing
of changed circumstances sufficient to justify modification of the juvenile
court’s order. It notes that Mother was offered substance abuse treatment in
a prior dependency case, as well as in this case, and she nonetheless failed to
maintain her sobriety. While it commended Mother’s recent six-month period
of sobriety, the Agency argued that relative to the length of Mother’s history
of drug use, her recent sobriety constitutes “changing” rather than “changed”
circumstances. It further contends that modification of the order was not in
the children’s best interests because it would disrupt the stability the
children experienced with their caregiver.
Section 388, subdivision (d), allows for the modification of a juvenile
court order when “the best interests of the child or nonminor dependent may
be promoted by the proposed change of order. . . .” (§ 388, subd. (d).) A
petition to modify the court’s order under section 388 must: (1) present new
12
evidence or a change of circumstances; and (2) demonstrate that a
modification of the order is in the children’s best interests. (In re Samuel A.
(2020) 55 Cal.App.5th 1, 6–7; In re Stephanie M. (1994) 7 Cal.4th 295, 317
(Stephanie M.).) A section 388 petition should be liberally construed in favor
of its sufficiency. (In re D. R. (2007) 155 Cal.App.4th 480, 487.) However,
once reunification services are terminated, the juvenile court’s focus is on the
children’s needs for “ ‘permanency and stability.’ ” (Stephanie M., at p. 317.)
The moving party is entitled to an evidentiary hearing on the section
388 petition if they have made a prima facie showing of the two requisite
elements. (In re J.P. (2014) 229 Cal.App.4th 108, 127.) A prima showing is
made when “the facts alleged, if supported by evidence given credit at the
hearing, would sustain a favorable decision on the petition.” (Ibid.) “ ‘[I]f 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.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438,
1445.) The juvenile court may consider the entirety of the “factual and
procedural history of the case” in determining whether a prima facie showing
has been made. (In re K.L. (2016) 248 Cal.App.4th 52, 62.) We review an
order summarily denying a section 388 petition without an evidentiary
hearing under an abuse of discretion standard. (In re G.B. (2014) 227
Cal.App.4th 1147, 1158.)
With respect to the first element, the change in circumstances alleged
in support of a section 388 petition must be substantial in nature. (In re
Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.).) “A parent
establishes a substantial change of circumstances for purposes of section 388
by showing that, during the period between termination of reunification
13
services and the permanency planning hearing, he or she has resolved the
previously unresolved issues supporting juvenile court jurisdiction.” (In re
J.M. (2020) 50 Cal.App.5th 833, 846.) Evidence of changing, rather than
changed, circumstances is insufficient to justify the modification of a prior
order under section 388. (In re Alayah J. (2017) 9 Cal.App.5th 469, 482;
Ernesto R., at p. 223.) “In the context of a substance abuse problem that has
repeatedly resisted treatment in the past, a showing of materially changed
circumstances requires more than a relatively brief period of sobriety or
participation in yet another program.” (In re N.F. (2021) 68 Cal.App.5th 112,
121; see also Ernesto R., at p. 223 [for the purposes of a section 388 petition,
the parent’s recent sobriety reflected changing, rather than changed
circumstances, where the parent had a history of drug relapses, was in the
early stages of recovery, and was still addressing a chronic substance abuse
problem].)
The juvenile court found that Mother’s recent sobriety and progress in
her treatment programs constituted circumstances that were in the process of
changing, but had not yet changed. Admittedly, where exactly that tipping
point lies will depend on a host of subtle factors unique to the individual case,
and we must necessarily defer to the court’s familiarity with the parties and
experience with the dependency case. Here, while praising Mother’s efforts,
the dependency judge emphasized that her six-month period of sobriety and
participation in drug treatment was relatively short when compared with her
extensive history of substance abuse.
We conclude the record supports the juvenile court’s findings.
Although Mother’s recent commitment to her sobriety is unquestionably
commendable, the evidence shows she had a history of relapse following her
participation in treatment programs. This is not to be critical of Mother;
14
relapse is often part of the recovery process. Yet it represents a particular
danger for the children.
Mother’s most recent relapse occurred in January 2022 after she
participated in both inpatient and outpatient treatment programs. Following
that relapse, she gave birth to her third drug-exposed child. As the juvenile
court observed, Mother’s six-month period of sobriety is relatively brief when
compared with her extensive history of drug use and suggests she is still in
the early stages of her recovery. Thus, the court did not abuse its discretion
in concluding that Mother’s section 388 petition alleged, at most, changing
rather than changed circumstances.
Moreover, even if circumstances had changed, Mother must also allege
a set of new circumstances indicating that modification of the prior order
would be in the children’s best interests. Because she filed her section 388
petition after reunification services were terminated, Mother’s “interest in
the care, custody and companionship of the child[ren] [was] no longer
paramount. Rather, at this point ‘the focus shift[ed] to the needs of the
15
child[ren] for permanency and stability . . . .’ ”5 (Stephanie M., supra, 7
Cal.4th at p. 317.) The children’s best interests are not served by “further
delay[ing] permanency and stability in favor of rewarding Mother for her
hard work and efforts to reunify.” (In re J.C., supra, 226 Cal.App.4th at
p. 527.)
When Mother filed her section 388 petition—over a year after
reunification services were terminated—the children had lived out of
Mother’s custody since 2019. M.P. and A.P. lived away from Mother from
most of their lives, and E.P. lived away from Mother for one-half of his life.
The children’s caregiver reported that M.P. and A.P. did not remember their
parents because they were too young when they were removed from Mother’s
custody. And while E.P. did share a loving relationship with Mother, he did
not ask for her or cry when she was not present.
By contrast, the children had been living together and doing well in
their caregiver’s home. They all required and were regularly receiving
additional services to meet their needs. The evidence demonstrated that the
5 In support of her argument that modification of the prior order was in
the children’s best interests, Mother relies on the factors articulated in In re
Kimberly F. (1997) 56 Cal.App.4th 519, a case involving unsanitary
conditions in the mother’s home. She nonetheless recognizes that courts have
declined to apply the Kimberly F. factors because they do not focus on the
permanency and stability of the children after reunification services have
been terminated. (See In re J.C. (2014) 226 Cal.App.4th 503, 527 [declining
to apply the Kimberly F. factors because they did not take the Supreme
Court’s Stephanie M. analysis into account].) In this case reunification
services were already terminated when Mother filed her section 388 petition,
and we therefore decline to apply the Kimberly F. factors. But even were we
to apply them, they do not assist Mother. The evidence in this case
demonstrated that her extensive history of drug use was unlikely to be easily
ameliorated—a finding that demonstrates modification was not in the
children’s best interests under the Kimberly F. analysis.
16
children had achieved a great sense of stability and permanency with their
caregiver after spending at least one-half of their lives in the custody of foster
families. Thus, the record supports the juvenile court’s finding that
modifying the prior order posed a risk to the stability of the children and was
not in their best interests.
Accordingly, we conclude the juvenile court did not abuse its discretion
in denying Mother’s section 388 petition.
B. Section 366.26 Hearing
Mother argues the juvenile court erred in failing to apply the beneficial
parent-child relationship exception to overcome the statutory preference for
adoption. She contends she provided sufficient proof that all three prongs of
the exception were satisfied. The Agency acknowledges that the juvenile
court found the first two prongs of the exception were proven. It contends,
however, that Mother failed to satisfy the third prong and, therefore, the
exception is inapplicable. We conclude the juvenile court did not abuse its
discretion when it declined to apply the exception and terminated Mother’s
parental rights.
“ ‘At a permanency plan hearing, the 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 ( In re B.D.).) Once the juvenile court finds the child
is adoptable, the burden then shifts to the parent to demonstrate the
application of a statutory exception to adoption. (Id. at p. 1225; § 366.26,
subd. (c)(1).) If the parent does not establish the applicability of a statutory
exception, the juvenile court must terminate parental rights. (In re Katherine
J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.).)
17
One such statutory exception is the beneficial parent-child relationship
exception. (§ 366.26, subd. (c)(1)(B)(i).) This exception applies if “[t]he court
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 benefit from
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) This exception
requires the parent to prove three elements: “1) regular visitation and
contact with the child, taking into account the extent of visitation permitted;
(2) a substantial, positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing the
relationship; and 3) a showing that terminating the attachment would be
detrimental to the child even when balanced against the countervailing
benefit of a new, adoptive home.” (In re M.G. (2022) 80 Cal.App.5th 836,
847.)
“We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parental relationship, for substantial evidence.” (In
re B.D., supra, 66 Cal.App.5th at p. 1225 [citing to In re Caden C. (2021) 11
Cal.5th 614, 639–640 (Caden C.)].) We do “ ‘not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary conflicts’ ” and
will not disturb the juvenile court’s findings even where substantial evidence
to the contrary also exists. (Caden C., at p. 640, citations omitted.) “ ‘[T]he
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.’ (Ibid.)” A court
abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently
absurd determination.’ ” ’ ” (Id. at p. 641.)
18
At the outset, we note that the juvenile court found Mother proved the
first and second prongs of the beneficial parent-child relationship exception.
(§ 366.26, subd. (c)(1)(B)(i).) The Agency does not contest the juvenile court’s
findings as to these elements. We accordingly focus on the third element.
The third element of the beneficial parent-child exception requires the
juvenile court to determine whether terminating the parental relationship
would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 633.)
“[I]n assessing whether termination would be detrimental, the trial court
must decide whether the harm from severing the child’s relationship with the
parent outweighs the benefit to the child of placement in a new adoptive
home. [Citation.]” (Id. at p. 632.) This requires the juvenile court to
determine “how the child would be affected by losing the parental
relationship—in effect, what life would be like for the child in an adoptive
home without the parent in the child's life.” (Id. at p. 633.) The juvenile
court must then weigh the loss of this relationship with “the benefit of
placement in a new, adoptive home . . . .” (Ibid.)
Although the third element of the beneficial parent-child exception is
the only element at issue in this case, the second and third elements of the
exception “significantly overlap.” (Katherine J., supra, 75 Cal.App.5th at
p. 317, fn. 7.) “[F]or example, evidence that terminating parental relation
would cause harm indicates that child would lose important relational
benefits if severed from parent.” (Ibid.) “When the relationship with a
parent is so important to the child that the security and stability of a new
home wouldn’t outweigh its loss, termination would be ‘detrimental to the
child due to’ the child’s beneficial relationship with a parent.” (Caden C.,
supra, 11 Cal.5th at pp. 633–634.) A parent’s struggles in dealing with the
issues that led to dependency—in this case drug addiction—“can be relevant
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in assessing whether the interaction between parent and child ‘has a
“ ‘negative effect’ ” on the child.’ [Citation.]” (In re D.P. (2022) 76
Cal.App.5th 153, 165.) But this inquiry is significant only to the extent it
“informs the central question before the court: ‘[W]ould the child benefit from
continuing the relationship and be harmed, on balance, by losing it?’
[Citation.] ” (Id. at p. 165)
Here, the juvenile court meticulously and insightfully weighed the
relevant facts in rendering its final determination that the beneficial parent-
child exception was not applicable. The court discussed the loving
relationship between Mother and the children, and commended Mother’s
recent efforts in maintaining sobriety. But the record fully supports its
ultimate determination that any harm caused by the termination of the
children’s relationship with Mother was outweighed by the substantial
benefits the children received through the permanency of adoption. The
court noted that the children “need the most permanence that the law can
give them,” and adoption provides the best chance to achieve it.
Since the children’s placement with C.G., their great-aunt and
prospective adopter, the children made demonstrable progress in a stable
home. When they received consistent services and therapy in their foster
homes, E.P. was observed to have fewer behavioral issues, M.P. made
advancements in his verbal development, and A.P. began walking. C.G.
ensured the children consistently received the necessary services and therapy
to meet their needs. The children were bonded with C.G. and she
enthusiastically pursued their adoption.
By contrast, evidence of the children’s beneficial relationship with
Mother was not so strong as to outweigh the benefits of the children’s
placement in this stable adoptive home. Although Mother’s strongest
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relationship appeared to be with E.P., he did not cry or ask for Mother when
he was away from her and at home with C.G. The social worker testified that
E.P. was acclimated to not being around his parents. C.G. reported that M.P.
and A.P. did not remember Mother because they were so young when they
were taken from her custody.
Perhaps most pertinent, the benefit of Mother’s continued relationship
with the children was significantly diminished by her history of drug use.
Throughout the dependency case and for the majority of the children’s lives,
Mother struggled to maintain her sobriety and inconsistently participated in
the treatment programs offered to her. She used drugs while pregnant with
A.P. despite participating in a treatment program related to her prior
dependency case. In January 2022, within months of the section 366.26
hearing, Mother gave birth to another child who was born exposed to drugs.
While Mother recently completed a drug treatment program and
professed a commitment to her sobriety, her prior history reflected efforts at
treatment followed by relapse. The record demonstrated that, during periods
when Mother admitted to using drugs, she inconsistently communicated with
the Agency and cancelled visits with the children. This “one step forward,
two steps back” pattern is hardly surprising for persons who struggle with
addiction. But it is also undeniable that Mother’s historical inability to
address her drug dependency has had a demonstrably negative effect on her
relationship with the children.
Considering the totality of the evidence, we conclude the juvenile court
did not abuse its discretion when it found the benefits of adoption outweighed
the detriment of terminating the children’s relationship with Mother.
Accordingly, the juvenile court did not abuse its discretion when it declined to
apply the beneficial parent-child exception and terminated parental rights.
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DISPOSITION
The juvenile court’s orders denying Mother’s section 388 petition and
terminating Mother’s parental rights are affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DO, J.
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