In re A.W. CA2/6 ( 2022 )

Filed 12/19/22 In re A.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.W., a Person Coming 2d Juv. No. B321007
Under the Juvenile Court (Super. Ct. No. J072943)
Law. (Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
D.W. et al.,
Defendant and Appellant.
B.W. (Mother) and D.W. (Father) appeal from the juvenile
court’s order terminating their parental rights to their daughter,
A.W., and selecting adoption as the permanent plan. (Welf. &
Inst. Code,1 § 366.26.) They contend the court erred in finding
the beneficial parental relationship exception did not apply. (Id.,
subd. (c)(1)(B)(i).) We affirm.
FACTUAL AND PROCEDURAL HISTORY
When A.W. was born, she was placed in the neonatal
intensive care unit (NICU) for over three weeks due to in utero
drug exposure. A.W. suffered withdrawal symptoms and
required methadone administration for several weeks after birth.
After she was discharged from the hospital, she was placed in a
foster home, where she has lived ever since. A.W. has never lived
with Mother and Father.
In October 2021, the Ventura County Human Services
Agency (the Agency) filed a juvenile petition (§ 300) alleging that
Mother tested positive for fentanyl on multiple occasions while
pregnant with A.W. The petition also alleged that Mother had a
history of substance abuse and suffered mental health issues.
The petition alleged Father had a history of substance abuse and
knew or reasonably should have known about Mother’s substance
abuse. The petition further alleged that two of A.W.’s
half-siblings were previously declared dependents of the court.
One sibling was declared a dependent due to the child’s prenatal
substance exposure, Mother’s substance abuse, and her mental
health issues. The other sibling was declared a dependent due to
Father’s substance abuse, incarceration, and failure to provide
care.
At the jurisdiction/disposition hearing, the juvenile court
sustained the petition and bypassed Mother and Father’s
reunification services. It ordered a supervised visitation schedule
1Furtherunspecified statutory references are to the
Welfare and Institutions Code.
2
of twice a week to remain the same. The court set a hearing
pursuant to section 366.26.
Section 366.26 report and pretrial memorandum
In its section 366.26 report, the Agency summarized the
contacts and visits that occurred from October 2021 to February
2022. Mother and Father had supervised one-hour visits twice a
week. Generally, the “visits occur[red] without incident” and
“usually consist[ed] of feeding, changing diaper[s], talking and
giving affection to child, carrying . . . and interacting with her
during wake time.”
The Agency reported Mother and Father “have shown
consistency in visitation” and there was “no question that the
parents love and care for [A.W.] as they are loving and
affectionate during visits.” However, the report noted that on a
recent visit, A.W. cried at various times during the visit and
appeared “inconsolable at times.” The report stated “it is evident
that [A.W.] is growing up and possibly beginning to recognize
unfamiliar places and faces. The prospective adoptive mother
monitored [A.W.] the rest of the day for any ailments or
discomforts. [A.W.] was her normal self.”
The Agency also reported A.W.’s current placement “is very
stable and the prospective adoptive parents have met her
developmental, medical and emotional needs.” A.W. appeared
“very happy forming significant attachments to her prospective
adoptive parents” and had “grown physically and
developmentally.”
The Agency ultimately recommended the termination of
Mother and Father’s parental rights to allow adoption as the
permanent plan. It found there “is not a compelling reason for
determining that termination of parental rights would be
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detrimental to [A.W.]. [A.W.] looks to the prospective adoptive
parents to have her daily physical and emotional needs met. The
benefit [A.W.] would gain in a permanent home with her
prospective adoptive parents far outweighs any beneficial
relationship she may have with her biological parents.”
The Agency also submitted a pretrial memorandum, noting
that while A.W. seems happy and enjoys visits with Mother and
Father, she “would not be affected by the loss of these visits.
When there is not a visit for whatever the reason, [A.W.] is not
impacted negatively. When there is a visit, [A.W.] is able to
incorporate back into her [foster] family life without interruption
or discomfort.”
Section 366.26 hearing
At the contested section 366.26 hearing, Mother and Father
testified about their visits with A.W. and bond with A.W. A case
aide and the social worker also testified regarding these visits.
At the conclusion of the hearing, the juvenile court found
“by clear and convincing evidence, that it [was] likely [A.W.] will
be adopted.” The court found the beneficial parental relationship
exception did not apply and terminated parental rights. While
Mother and Father had “very appropriate, pleasant visits” with
A.W., the court found “there’s no other evidence to indicate that
[A.W.] is harmed when she’s not with them.” The court found
that Mother and Father failed to show that A.W. would benefit
from continuing a relationship with them, and noted that proving
a beneficial relationship “is a very difficult hurdle for the parents
to overcome in a case like this” where “they have never lived with
[A.W.] and where she is very young, pretty much preverbal and
they have to rely upon what they see at visitation.” The court
observed: “I just don’t think the parents have demonstrated or
4
shown that they have the kind of substantial, positive, emotional
attachment or that [A.W.] does to them that it is protected by the
beneficial-relationship exception.”
The juvenile court also found that A.W. would not suffer
harm if the parental relationship terminated. The court noted
that “it’s hard for parents with a child this young to make that
showing. And I don’t believe you’ve made that showing.” The
court concluded that “[o]n balance adoption is the best plan for
[A.W.] where she will have a permanent, forever home.”
DISCUSSION
Mother and Father contend the juvenile court erred when it
found the beneficial parental relationship exception did not
apply. We disagree.
At a section 366.26 hearing, the juvenile court selects and
implements a permanent plan for the dependent child. (In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) “To guide the
court in selecting the most suitable permanent arrangement, the
statute lists plans in order of preference,” with adoption being the
“ ‘permanent plan preferred by the Legislature.’ ” (Ibid; In re
D.O. (2016) 247 Cal.App.4th 166, 173.) The court must
determine “by a clear and convincing evidence standard, that it is
likely the child will be adopted.” (§ 366.26, subd. (c)(1).) If so, the
court “shall terminate parental rights” and allow for adoption,
unless a parent can show that termination would be detrimental
to the child for one of the statutorily enumerated exceptions. (Id.,
subd. (c).)
The beneficial parental relationship exception at issue here
applies when the parents prove “(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
5
would be detrimental to the child.” (Caden C., supra, 11 Cal.5th
at p. 631, italics omitted.) Mother and Father must prove these
elements based on a preponderance of the evidence. (Id. at p.
636.)
We review for substantial evidence the first two elements—
consistent visitation and benefit from continuing the relationship.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) For the third
element—detriment to the child if the relationship is terminated
—we review for substantial evidence factual determinations such
as “specific features of the child’s relationship with the parent,”
“the harm that would come from losing those specific features,”
and “the benefit of adoption.” (Id. at p. 640.) In so doing, we do
“ ‘not reweigh the evidence, evaluate the credibility of witnesses,
or resolve evidentiary conflicts.’ [Citation]” (Ibid.) We review for
abuse of discretion the “delicate balancing” of “the harm of losing
the relationship against the benefits of placement in a new,
adoptive home.” (Ibid.) “A court abuses its discretion only when
‘ “ ‘the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd
determination’ ” ’ ” such that “ ‘ “ ‘no judge could reasonably have
made the order.’ ” ’ ” (Id. at p. 641.)
Regular visitation
Here, there is no dispute Mother and Father met the first
element of regular visitation and contacts. Mother and Father
dispute the court’s findings that they failed to meet the second
and third elements.
Beneficial relationship
In assessing the second element, the court determines
whether the child has a “substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
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the child would benefit from continuing the relationship.” (Caden
C., supra, 11 Cal.5th at p. 636.) The court looks to several
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 parents and the child, and the
child’s particular needs.’ [Citation.]” (Id. at p. 632.) The focus is
on the child, and the courts “often consider how children feel
about, interact with, look to, or talk about their parents.” (Ibid.)
A “showing the child . . . derive[s] some benefit from
continuing a relationship maintained during periods of visitation”
is not a sufficient ground to depart from the statutory preference
for adoption. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Friendly or affectionate visits are not enough. (Id. at p. 468.)
Substantial evidence supports the juvenile court’s finding
that the parents did not establish a beneficial relationship. A.W.
was taken into protective custody when she was born, and she
was only eight months old at the time of the section 366.26
hearing. She never lived with Mother and Father, as she was
placed with the foster parents after being discharged from NICU.
Because of these circumstances, the only observable interactions
between Mother and Father and A.W. occurred during supervised
one-hour visits that occurred twice a week. Although these visits
were “pleasant” and Mother and Father acted “appropriate[ly],”
this evidence was short of showing that A.W. had the type of
“substantial, positive, emotional attachment” that met the second
element of the exception.
Detriment of termination
Even if Mother and Father could establish a beneficial
relationship with A.W., the juvenile court found that they did not
7
establish that termination of their parental rights would be
detrimental to A.W. We agree.
In assessing detriment resulting from severing the
parent-child relationship, the court “acts in the child’s best
interest in a specific way: it decides whether the harm of severing
the relationship outweighs ‘the security and the sense of
belonging a new family would confer.’ [Citation.]” (Caden C.,
supra, 11 Cal.5th at p. 633.) Courts must 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.” (Ibid.)
Here, the trial court did not abuse its discretion in finding
that the harm in terminating parental rights did not outweigh
the stability of adoption. A.W. was an infant and had been living
with her foster parents her entire life. Moreover, there was no
evidence that terminating Mother and Father’s parental rights
would be detrimental to A.W. (Contra Caden C., supra, 11
Cal.5th at p. 633 [bonding study showed evidence of detrimental
effects, which included “emotional instability and preoccupation
leading to acting out, difficulties in school, insomnia, anxiety, or
depression”].) Instead, the evidence showed that after visits with
Mother and Father, A.W. was “able to incorporate back into her
[foster] family life without interruption or discomfort.”
Because we conclude the juvenile court did not err in
finding the beneficial parental relationship exception did not
apply, there was no error in terminating parental rights.
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DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Melissa A. Chaitin, under appointment by the Court of
Appeal, for Defendant and Appellant D.W. (Father).
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant B.W. (Mother).
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.