In re Danielle E. CA2/2 ( 2022 )

Filed 12/8/22 In re Danielle E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re DANIELLE E., a Person B320121
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP01090B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
LESLIE F.,
Defendant and Appellant.
APPEAL from the order of the Superior Court of Los
Angeles County, D. Zeke Zeidler, Judge. Affirmed.
Gary E. Beeks for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
******
Leslie F. (mother) appeals the juvenile court order
terminating her parental rights over her two-year-old daughter,
Danielle E. Mother argues that the court erred in declining to
apply the beneficial parent-child relationship exception (Welf. &
Inst. Code, § 366.26, subd. (c)(1)(B)(i)).1 We conclude the court
did not err, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother has two children—Madison (born June 2011) and
Danielle (born February 2020). The two children have different
fathers.
Mother has been using methamphetamine for more than 16
years, on and off. Although mother denied using the drug while
she was pregnant with Danielle, she tested positive for the drug
three times between March and December 2019 while pregnant.
Two of those times the test showed “very high” levels of
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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methamphetamine. Fortunately, Danielle was born without any
methamphetamine in her bloodstream.
II. Procedural History
A. Jurisdictional and dispositional findings
A few days after Danielle was born in February 2020, the
Los Angeles Department of Children and Family Services (the
Department) filed a petition asking the juvenile court to assert
dependency jurisdiction over Danielle to due mother’s history of
substance abuse and “current abuse[] of methamphetamine[]” as
well as Danielle’s father’s failure to take action to protect
Danielle, both of which posed a danger to Danielle’s physical
health, rendering jurisdiction appropriate under subdivision
(b)(1) of section 300.2
Danielle was detained from mother five days after she was
born. She was initially placed with an unrelated foster parent.
In the next few months, mother tested positive for
methamphetamine and also skipped two drug tests. She checked
herself into a residential drug treatment program, and the very
next day checked herself back out.
On June 8, 2020, the juvenile court sustained the petition
and removed Danielle from mother’s custody. The court also
ordered the Department to provide mother with reunification
services, and the Department subsequently developed a case plan
of services for mother to complete—namely, a six-month drug
2 The Department also asked the court to exert dependency
jurisdiction over Madison. The court did so, and then terminated
jurisdiction and placed her with her father. Madison is thus not
part of this appeal.
Father is not part of this appeal, either.
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program, individual counseling, and parenting classes. Mother
was also given the right to monitored visits with Danielle.
B. Reunification period
Mother received reunification services for 18 months—from
February 2020 until the juvenile court terminated those services
on August 31, 2021.
On April 17, 2021, Danielle started living with a maternal
uncle and his wife (the caregivers).
For the first 12 months of the reunification period, mother
did not enroll in any drug program, did not participate in
counseling or classes, and missed several drug tests. Her
monitored visits with Danielle were sporadic, and a report
prepared on January 15, 2021, noted that Danielle had only one
visit with mother in the prior six months.
In the last six months of the reunification period, mother
enrolled in—and completed—two different in-patient drug
programs (one that was 60 days and a second that was 90 days),
but did not complete the back-half out-patient portion of either
program, which was necessary to satisfy the six-month program
requirement in her case plan. Mother also tested positive for
methamphetamine while she was in between the two in-patient
programs. During this period of time, mother continued with her
monitored visits, although she was often late, often left early, and
often brought other people with her or encouraged Danielle to
play with other kids (thereby leaving mother less one-on-one time
with Danielle). During those visits, Danielle expressed a strong
preference for her caregivers over mother: When mother tried to
hug Danielle, Danielle would turn away; when Danielle would
trip or get hurt, Danielle sought solace from the caregivers, not
mother; Danielle would hover near the caregivers, such that
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mother had to move Danielle to a place away from the caregivers
for Danielle to focus on mother. In one March 2022 visit,
Danielle clung to the caregiver as the caregiver tried to pass
Danielle to mother; Danielle cried out “mama” and held out her
hands for the caregiver. After each of those visits, Danielle was
invariably happy to be reunited with her caregivers. Mother did
not call or otherwise attempt to communicate with Danielle
between monitored visits.
During the time Danielle lived with the caregivers, she had
developed a “healthy attachment” to them and they, in turn, had
“strong[ly] bond[ed]” with her. She called them “mom” and “dad.”
On August 31, 2021, the juvenile court held the 18-month
status review hearing and, based on mother’s partial compliance
with her case plan, and the fact mother never progressed beyond
monitored visitation with Danielle, terminated the reunification
services.
C. Termination of parental rights
On April 26, 2022, the juvenile court held the permanency
planning hearing.3 Mother testified that when she arrived for
her visits with Danielle, Danielle would run towards her with a
smile, and would call her “mom.” Mom also testified that she
tried to contact Danielle between visits, but that the caregivers
would not allow her to talk to Danielle.
Mother asked the juvenile court not to terminate her
parental rights over Danielle because, in mother’s view, she
qualified for the beneficial parent-child relationship exception to
adoption. Danielle (through her counsel) and the Department
3 Prior to that hearing, mother filed a motion to reinstate
reunification services, but the juvenile court summarily denied
the motion. Mother does not appeal that ruling.
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opposed application of the exception. The juvenile court found
the exception inapplicable, reasoning that although “mother has
maintained regular and consistent visitation and contact [with
Danielle], and that has conferred a parental . . . relationship,”
“the court cannot find by a preponderance of the evidence that . . .
to the extent that [the] parent/child relationship has been
created, that it outweighs the benefits of permanence in adoption,
nor that it would be detrimental to the child to sever the
parent/child relationship.”
The court then terminated mother’s parental rights over
Danielle.
D. Appeal
Mother filed this timely appeal.
DISCUSSION
Mother argues that the trial court erred in declining to
apply the beneficial parent-child relationship exception and, on
that basis, in terminating her parental rights over Danielle.
Once a juvenile court has terminated reunification services
or a parent is deemed ineligible for them at the outset, the court
“shall terminate parental rights” if it finds, “‘by clear and
convincing evidence,’” “‘that it is likely the [child] will be
adopted’” within a reasonable time. (§ 366.26, subds. (a) & (c)(1);
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) Thus, a
juvenile court must terminate parental rights and order adoption
unless the parent opposing termination proves that one of six
statutory exceptions applies. (§ 366.26, subd. (c)(1) & (1)(B); In re
I.W. (2009) 180 Cal.App.4th 1517, 1527, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn.
7).
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One of the six exceptions is the beneficial parent-child
relationship exception. Because this exception “applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child,” a court will find the exception
applicable only if the parent “establish[es]” “(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, 630, 631, 635 (Caden C.), italics omitted.)
In assessing whether the parent has engaged in regular
visitation and contact, a court looks to how the parent’s actual
visits measure up against the extent of visitation permitted by
the juvenile court's orders (id. at pp. 632, 636); to satisfy this
element, contact must be consistent; “sporadic” visits, or
visitation with “significant lapses,” are not enough. (In re A.G.
(2020) 58 Cal.App.5th 973, 994-995; In re I.R. (2014) 226
Cal.App.4th 201, 212.) In assessing whether the child would
benefit from a continued relationship with the parent, the parent
must show “that the child has a substantial, positive, emotional
attachment to the parent” in light of several factors, such as the
“‘[(1)] [t]he age of the child, [(2)] the portion of the child’s life
spent in the parent’s custody, [(3)] the “positive” or “negative”
effect of the interaction between parent and child, and [(4)] the
child’s particular needs.’” (Caden C., at pp. 632, 636, quoting In
re Autumn H. (1994) 27 Cal.App.4th 567, 576.) In assessing
whether the termination of parental rights would be detrimental
to the child “when balanced against the countervailing benefit of
a new, adoptive home,” a court is to examine “how the child
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would be affected by losing the parental relationship” entirely.
(Caden C., at pp. 633, 636-637.) This is necessarily a “subtle,
case-specific inquiry.” (Id. at p. 633.)
We review a juvenile court’s findings regarding the first
two elements (visitation and relationship) for substantial
evidence, and its ruling regarding the third element (balancing of
detriment versus benefit) for an abuse of discretion. (Caden C.,
supra, 11 Cal.5th at pp. 639-641.) Because the parent bears the
burden of proving visitation and a relationship to the juvenile
court, a parent can succeed under the substantial evidence
standard applicable to the first two elements on appeal only if the
evidence in the record compels a finding in the parent’s favor as a
matter of law; this is a notoriously difficult showing to make. (In
re Luis H. (2017) 14 Cal.App.5th 1223, 1227; Los Angeles County
Dept. of Children & Family Services v. Superior Court (2013) 215
Cal.App.4th 962, 967.)
Because the juvenile court found that mother had regular
visitation and contact with Danielle, this appeal deals with
whether the juvenile court erred in finding that mother did not
satisfy the remaining two elements. As explained next, there was
no error.
Substantial evidence supports the juvenile court’s finding
that Danielle did not have “a substantial, positive, emotional
attachment” to mother, such that the two lacked a substantial
beneficial relationship. Danielle is now just over two years old,
and spent only the first five days of her life in mother’s custody.
More to the point, Danielle’s reaction to mother during their
monitored visits indicates that Danielle has not had a
“substantial” or “positive” “emotional attachment” to mother:
Danielle tried to avoid mother’s hugs; Danielle went to her
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caregivers rather than mother when she needed solace; Danielle
would play with mother only when the caregivers were nearby;
and as recently as March of 2022, Danielle cried and clung to her
caregiver rather than be passed to mother. Mother responds that
Danielle’s limited attachment is a product of Danielle’s removal
from mother’s custody at birth and the limited amount of
visitation mother was accorded by the juvenile court; in effect,
mother argues, mother has done the best she could with the
opportunity to develop an attachment that she had. We disagree.
The law gives mother a maximum of 12 months of reunification
services for children, like Danielle, under the age of three (§
361.5, subd. (a)(1)(B)), but the juvenile court here gave mother 18
months of such services. What is more, when we construe the
record in the light most favorable to the juvenile court’s findings
(as we must), the record does not support mother’s assertion that
the absence of a substantial attachment was everyone’s fault but
mother’s: Mother did not begin to work on any of her case plan
until 12 months into the reunification period; mother did not
contact Danielle between visits; and mother did not use all of the
visitation time she was accorded (because she was often late,
often left early, and often brought other adults or children with
her that took away from her one-on-one time with Danielle). Had
mother made better efforts with her case plan and with her
visits, there is no reason to believe the Department and juvenile
court would not have recognized those efforts by allowing for
unmonitored visits with mother that would have given Danielle
even greater opportunities to bond with mother. At bottom, the
record does not compel a finding that Danielle had a substantial,
positive emotional attachment to mother. The absence of this
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element, by itself, is fatal to the applicability of the beneficial
parent-child relationship exception.
The trial court also did not abuse its discretion in
concluding that the harm Danielle would suffer from terminating
her relationship with mother was outweighed by the stability and
permanency that would come from adoption by her caregivers,
the maternal uncle and aunt. On the one hand, Danielle would
not likely suffer much detriment if her relationship with mother
was terminated given Danielle’s lack of emotional attachment to
mother, as evidenced by Danielle’s reluctance to spend time with
mother during their visits, as well as the absence of any
communication in between those visits. On the other hand, the
benefit of terminating mother’s relationship and allowing
Danielle to be adopted by her caregivers is substantial given
Danielle’s “healthy attachment” and “strong bond” with them.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
CHAVEZ
_________________________, J.*
BENKE
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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