In re A.B. CA4/1 ( 2023 )

Filed 1/10/23 In re A.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.B., a Person Coming Under D080747
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (San Diego County
AND HUMAN SERVICES Super. Ct. No. J519586B)
AGENCY,
Plaintiff and Respondent,
v.
C.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Michael P. Pulos, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and
Respondent.
C.B. (Mother) appeals from the juvenile court’s orders denying her
Welfare and Institutions Code1 section 388 petition and terminating parental
rights to son A.B. (§ 366.26.) She contends that the juvenile court abused its
discretion by denying her section 388 petition because she had shown a
sufficient change of circumstance and the request was in A.B.’s best interest.
She also asserts the juvenile court erred in finding that the parental-benefit
exception to adoption did not apply because she maintained consistent
visitation and had a positive relationship with A.B. that benefited him.
(§ 366.26, subd. (c)(1)(B)(i).) We reject these contentions, and affirm the
orders.
FACTUAL AND PROCEDURAL BACKGROUND
Family History
A.B. was born in August 2020. At the time of his birth, Mother was
incarcerated for the last six months on a felony robbery charge and a parole
violation and she anticipated serving another 12 months in prison. She also
had a history of mental health problems, drug use and homelessness. Mother
had another child previously removed from her care due to her drug use
during pregnancy. She then failed to reunify with that child and lost
parental rights in 2019.
The Agency’s Petition
On August 10, 2020, San Diego County Health and Human Services
Agency (the Agency) filed a petition on behalf of A.B. under section 300,
subdivision (g). At the detention hearing the following day, the juvenile court
made a prima facie finding that continued placement with Mother is contrary
1 All further statutory references are to the Welfare and Institutions
Code, unless otherwise noted.
2
to A.B.’s welfare and detained A.B. in out-of-home care. The court ordered
supervised visits for Mother, subject to her facility’s rules.
Mother failed to arrange for A.B.’s care and although she wanted A.B.
to be released to the maternal grandmother, the maternal grandmother was
ambivalent about caring for A.B. and the Agency had concerns about her
suitability. The location of the alleged father, B.M., was unknown when A.B.
was born and Mother reported no contact with him.2
The Agency’s August 2020 jurisdiction/disposition report recommended
that the court make a true finding on the petition, declare dependency on
behalf of A.B., and place him in a licensed foster care home. It further
recommended that Mother be denied reunification services pursuant to
sections 361.5, subdivision (b)(12) and 361.6, subdivision (e)(1). At the
September 2020 jurisdictional and dispositional hearing, the court ordered a
paternity test and set the case for trial.
The Agency’s October 2020 addendum report stated that Mother
received a phone card and scheduled times to call A.B.’s caregiver, however
she called only once and struggled to maintain a conversation. The social
worker reminded Mother to ask her prison counselor about what services are
available while she is incarcerated. At the adjudication and disposition
hearing in October, the court designated B.M. as the biological father based
on the paternity test results and ordered supervised visits.
The Agency filed an amended petition in November 2020 on behalf of
A.B. under section 300, subdivision (b)(1). The contested hearing was
continued twice in order to allow Mother to attend. In its January 2021
addendum report, the Agency reported that the Mother expected to be
2 The father does not appeal and did not join in Mother’s appeal. He will
be mentioned here only when necessary to explain the proceedings.
3
released from custody in October 2021 and that she wanted to participate in
services. The social worker again reminded her to speak with her prison
counselor about any available services and programs. Mother requested
parenting classes and the Agency submitted a referral.
At the February 2021 contested hearing, the juvenile court dismissed
the section 300, subdivision (g) count and made a true finding on the section
300, subdivision (b)(1) count. The court declared A.B. a dependent, removed
him from Mother’s custody, found it was not in his best interest to be placed
with the biological father, B.M., and placed him with a relative. The court
ordered reunification services for B.M. but denied them for Mother.
Reunification Period
In its August 2021 status review report, the Agency reported that
Mother had been transferred to Custody to Community Transitional Reentry
Program (CCTRP) in May 2021. Mother reported her desire to visit and
reunify with A.B., and her belief in her readiness to parent him. In its
addendum report, the Agency reported that Mother moved to a sober living
facility in September 2021. The social worker submitted a referral for
Mother to visit A.B. at the Family Visitation Center and, beginning in
October 2021, she began visiting him. During the visits, Mother played with
A.B., offered him snacks, talked to him and praised him. A few times,
Mother had to be reminded to supervise him more closely. At the end of the
visits, A.B. did not display any distress after leaving Mother.
Meanwhile, B.M. did not participate in parenting services, he missed
appointments with A.B. and he told the social worker he did not know if he
wanted to reunify with A.B. The Agency had concerns about his mental
health and substance abuse. At the six-month review hearing, the juvenile
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court terminated B.M’s reunification services and referred the matter for a
section 366.26 hearing.
Section 388 Petition
In May 2022, about a month prior to the contested section 366.26
hearing, Mother filed a petition for modification pursuant to section 388 to
set aside the court’s orders denying her reunification services and scheduling
a section 366.26 hearing. She requested the court vacate the contested
hearing, develop a plan to transition A.B. into her care and close the case. In
the alternative, she requested reunification services. She stated she engaged
in services to address her substance abuse issues.
The Agency filed an addendum report expressing opposition to Mother’s
petition. Mother started her first substance abuse treatment program in
March 2022, and her substance abuse counselor noted that she was
participating in individual and group sessions a few times a week and
making “good progress.” Nevertheless, the counselor also reported that
Mother had to leave her sober living facility due to an incident involving
another resident, that the program would not provide her any other housing
assistance and that she moved into a motel. Mother visited with A.B.
consistently beginning in October 2021, but she failed to reach out to the
caregiver between visits to see if she could provide A.B. any additional
support.
The Agency assessed that Mother failed to demonstrate changed
circumstances in her petition. Although she was making positive changes in
her life, she was not able to take on a full parental role with A.B. With regard
to whether placement with Mother was in A.B.’s best interest, the Agency
noted that Mother had a history of substance abuse, mental health issues,
and criminal activity. Mother reported she became sober when she went into
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custody in February 2020. Prior to that, Mother had arrests in 2017, 2019
and 2020 related to drug use. In addition, she had a juvenile dependency
case in 2017 related to drug use. Social worker Nguyen observed, “It appears
that [Mother’s] current longstanding sobriety is due to her incarceration and
being released into a sober living home.”
On June 9, 2022, the court addressed Mother’s section 388 petition and
determined she failed to make a prima facie showing of changed
circumstances. At best, Mother’s circumstances were in the early stages of
changing, but had not changed. In addition, Mother did not make a prima
facie showing that continued services or placement with the mother would be
in A.B.’s best interest.
Contested 366.26 Hearing
At the July 2022 hearing, the court accepted the following Agency
reports into evidence: the January 2022 section 366.26 report and addendum
reports of January 2022, April 2022, May 2022, June 2022, July 2022.
Mother testified she visited A.B. weekly and that he smiled, called her
“mamma,” sometimes wanted to be picked up and was comforted by her when
he got bored. She believed he would miss her if their contact ended and that
they had a bond because he stared at her when she left and because they
played together.
The court found A.B. was both generally and specifically adoptable. It
noted when Mother was in custody, visits in her facilities were not permitted
due to “covid restrictions.” Mother also never attempted to inquire about
A.B.’s well-being while in custody, although she sought visitation with A.B. a
month after her release and then continued to visit consistently. On balance,
however, the court found “that there is no regular visitation and contact
under the first prong, and that is not met.”
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The court next examined the relationship between A.B. and Mother. It
noted they had a positive relationship, but not “much different than a child
could experience with . . . a friendly visitor.” The court determined that there
was not a beneficial relationship “such that if the visits were to stop, that
child would suffer harm.” Finally, the court assessed whether the harm of
severing the relationship outweighed the benefits of adoption. It found that
the relationship was not so important to A.B. that it outweighed the security
and stability of adoption. As a result, the court terminated parental rights
and ordered a plan of adoption.
DISCUSSION
Mother now appeals from the juvenile court’s summary denial of her
section 388 petition and the court’s finding that she failed to prove the
beneficial parent-child relationship exception to adoption.
SECTION 388 PETITION
A. Legal Principles
“Section 388 provides an ‘ “escape mechanism” ’ for parents facing
termination of their parental rights by allowing the juvenile court to consider
a legitimate change in the parent’s circumstances after reunification services
have been terminated. [Citation.] This procedural mechanism, viewed in the
context of the dependency scheme as a whole, provides the parent due process
while accommodating the child’s right to stability and permanency.
[Citation.] After reunification services have been terminated, it is presumed
that continued out-of-home care is in the child’s best interests. [Citation.]
Section 388 allows a parent to rebut that presumption by demonstrating
changed circumstances that would warrant modification of a prior court
order.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
7
“[A] section 388 petition seeking reinstatement of reunification services
or return of the child will necessarily involve a parent who has made
mistakes sufficient to support termination of services at some point in the
past. The question must be whether the changes the parent made since then
are substantial enough to overshadow that prior determination, such that
reunification is now in the child’s best interests.” (In re J.M. (2020) 50
Cal.App.5th 833, 848.) “A parent establishes a substantial change of
circumstances for purposes of section 388 by showing that, during the period
between termination of reunification services and the permanency planning
hearing, he or she has resolved the previously unresolved issues supporting
juvenile court jurisdiction.” (Id. at p. 846.)
At a hearing on a section 388 petition seeking to change a child’s
placement, the moving party must show a change of circumstances or new
evidence and that a change in placement is in the child’s best interests. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) A modification
petition is addressed to the sound discretion of the juvenile court and its
decision will not be disturbed on appeal in the absence of a clear abuse of
discretion. (Id. at p. 318.) A proper exercise of discretion is “ ‘not a capricious
or arbitrary discretion, but an impartial discretion, guided and controlled in
its exercise by fixed legal principles . . . to be exercised in conformity with the
spirit of the law[,] and in a manner to subserve and not to impede or defeat
the ends of substantial justice.’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057,
1066.) Exercises of discretion must be “ ‘grounded in reasoned judgment and
guided by legal principles and policies appropriate to the particular matter at
issue.’ ” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)
8
B. Analysis
In her section 388 petition, Mother asked the court to set aside its
February 2021 order denying her reunification services and its September
2021 order scheduling a section 366.26 hearing. Mother’s petition also
requested that the court order a plan to place A.B. with her and close the
case, or, in the alternative, revert the case back into a reunification phase
and order services for her. On appeal, Mother contends the court erred by
finding that she had not made a prima facie showing under both prongs of
the statutory analysis.
Changed Circumstances
As evidence of changed circumstances, Mother alleged she “engaged in
services to address substance abuse issues.” She also claimed she visited
regularly with A.B. and has “created a strong, healthy, and vital bond.”
Mother alleged she had shown she could “safely care for her son” and he
“deserve[d] the opportunity to grow up with his mother.”
The court considered Mother’s claims in the context of the entire case
history. It credited Mother for her progress but found it constituted the “very
early stages of changing circumstances, but not changed circumstances, as is
required.”
On the record before us, we conclude the court did not abuse its
discretion. The Agency’s June 2022 addendum report commended Mother for
starting to make positive changes in her life, but also explained she had
failed to demonstrate a true change in circumstances. Mother’s substance
abuse history spanned five years and she was only able to initiate sobriety by
being arrested and incarcerated several months before A.B. was born in
August 2020. Social worker Nguyen pointed out that Mother’s substantial
period of sobriety was primarily because she had been incarcerated. Mother
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also made “good progress” at the substance abuse program and attending
groups and individual sessions “a few times a week,” but she had only been in
that program for a little over two months at the time of the hearing. As the
court observed, the mother’s petition only set “forth very early stages of
changing circumstances, not changed circumstances, as is required.” This is
a reasonable interpretation of all the evidence and does not constitute an
abuse of discretion.
In her appeal, Mother claims that the court failed to consider that she
“successfully completed” CCTRP. The record, however, only contains
evidence she attended it for a period of time, not that she completed the
program. There was no specific information offered about the services
Mother participated in, her progress, or her prognosis. Similarly, in her
petition, Mother did not plead anything concerning the program or attach
any information concerning her participation in it.
Mother had additional struggles and there were additional protective
issues that she failed to address in her petition. As Mother acknowledges,
she also experienced homelessness and mental health problems. Moreover,
the court also correctly observed that Mother failed to make a prima facie
showing of changed circumstances concerning her history of criminal
behavior and failure to make provisions for A.B.’s care. Mother was
diagnosed with schizophrenia, she had experienced psychosis in the past, and
she failed to reunify with A.B.’s sibling. There was no assertion on the face of
her petition that there was a change of circumstances in relation to these
significant protective issues.
The court did not abuse its discretion when it determined Mother failed
to make a prima facie showing of changed circumstances. On that basis
alone, the court’s summary denial of the petition was proper. (In re Zachary
10
G. (1999) 77 Cal.App.4th 799, 806; see also In re Justice P. (2004) 123
Cal.App.4th 181, 191.)
A.B.’s Best Interests
The concept of a child’s best interest “ ‘is an elusive guideline that
belies rigid definition.’ ” (In re Ethan N. (2004) 122 Cal.App.4th 55, 66,
quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Its purpose
is to maximize a child’s ability to mature into a stable, well-adjusted adult.
(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.) Courts
assessing petitions for modification filed after termination of reunification
services should remember the shift in focus to a child’s need for permanency
and stability. (In re I.B. (2020) 53 Cal.App.5th 133, 159; In re J.C. (2014) 226
Cal.App.4th 503, 527 citing Seiser & Kumli on Cal. Juvenile Courts Practice
& Procedure (2014 ed.), Dependency Proceedings, [Seiser] § 2.140[5], p. 2–
473.)
The court did not abuse its discretion in determining that Mother failed
to show that A.B.’s best interests would be served by placing him in her care
or reverting back to the reunification stage. A.B. had been under juvenile
court supervision since shortly after he was born, in foster care since he was
17 days old and was in need of stability. Mother never parented A.B., nor did
she start visiting or establishing any relationship with him until after he was
a year old. She never advanced past supervised visits and never asked how
she could be more involved and offer support. In addition, Mother had a
history of homelessness and, shortly before the hearing, she was asked to
leave her sober living home and was staying in a motel. The reunification
timeline was past the 18-month limit and the 24-month date was only two
months away, by the time of the hearing. Indeed, “[a]fter the termination of
reunification services, the parents’ interest in the care, custody and
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companionship of the child are no longer paramount. Rather, at this point
‘the focus shifts to the needs of the child for permanency and stability’, and in
fact, there is a rebuttable presumption that continued foster care is in the
best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317, quoting
In re Marilyn H. [(1993)] 5 Cal.4th 295, 309.)
The court did not abuse its discretion in finding that Mother failed to
make a prima facie showing that the requested modification was in A.B.’s
best interest. Thus, the court did not abuse its discretion when it denied
Mother an evidentiary hearing on her section 388 petition.
BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION TO
ADOPTION
Mother also argues that the court erred when it did not apply the
exception to adoption under section 366.26, subdivision (c)(1)(B)(i).
A. Legal Principles
Once the court found A.B. was likely to be adopted, a finding Mother
does not contest, the burden shifted to her to prove, by a preponderance of the
evidence, that one or more of the statutory exceptions to termination of
parental rights applies. (§ 366.26, subd. (c)(1)(A) and (B); In re B.D. (2008)
159 Cal.App.4th 1218, 1228; In re N.S. (2020) 55 Cal.App.5th 816, 853.) At
this stage of the proceedings, the statutory exceptions to adoption merely
permit the court, in exceptional circumstances, to choose an option other than
the adoption norm. (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.)
“If the court cannot safely return a dependent child to a parent’s
custody within statutory time limits, the court must set a hearing under
section 366.26.” (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)
“[W]hen the court orders the section 366.26 hearing, reunification services
have been terminated, and the assumption is that the problems that led to
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the court taking jurisdiction have not been resolved.” (Ibid.) The purpose of
a section 366.26 hearing is to determine and implement the appropriate
permanent plan for a dependent child. (In re Marilyn H., supra, 5 Cal.4th at
p. 304.) The juvenile court can choose among three permanent plans:
adoption, legal guardianship, and long-term foster care. (§ 366.26, subd. (b).)
When a child is adoptable, adoption is the preferred permanent plan unless
there are countervailing circumstances or adoption is not in the child’s best
interest. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H.
(1994) 27 Cal.App.4th 567, 574 (Autumn H.).)
At a section 366.26 hearing, it is the parent’s burden to show an
exception to termination of parental rights. (In re Fernando M. (2006) 138
Cal.App.4th 529, 534; In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One
exception is when the juvenile court finds “a compelling reason” for
determining that termination of parental rights would be “detrimental” to the
child because the “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).) The California Supreme Court has clarified that
the “ ‘compelling reason’ ” language does not impose on the parent any
burden beyond the requirement to show termination of the beneficial
relationship would be “detrimental” to the child. (Caden C., supra, 11 Cal.5th
at pp. 635–636.)
Caden C. stated that under section 366.26, subdivision (c)(1)(B)(i), a
parent has the burden to show, by a preponderance of the evidence, three
prongs: (1) “regular visitation and contact with the child”; (2) “the child has a
substantial, positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing the
relationship”; and (3) “terminating that attachment would be detrimental to
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the child even when balanced against the countervailing benefit of a new,
adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.) Specifically, in
making the determination of whether the beneficial parent-child relationship
exception applies, the juvenile court “balances the strength and quality of the
natural parent/child relationship in a tenuous placement against the security
and the sense of belonging a new family would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not
terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Because
interaction between a child and his or her parent will generally confer some
incidental benefit to the child, the parent must prove the child will benefit to
such a degree as to overcome the preference for adoption. (Ibid.) The
beneficial parent-child relationship exception is not established simply by a
showing of a parent’s frequent and loving contact and relationship with their
child. (In re J.C. (2014) 226 Cal.App.4th 503, 529.) Some of the factors the
juvenile court should consider when determining whether the parent-child
relationship is important and beneficial are: (1) the 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 interaction between the parent and the child; and (4) the
child’s particular needs. (Caden C., at p. 632; Autumn H., at p. 576.)
On appeal, we apply a hybrid standard in reviewing a juvenile court’s
determination whether the beneficial parent-child relationship exception
applies. (Caden C., supra, 11 Cal.5th at pp. 639–641; In re J.C., supra, 226
Cal.App.4th at pp. 530–531.) We apply the substantial evidence standard of
review to the first two Caden C. prongs (regular contact and visitation and
the existence of a beneficial parent-child relationship), and the abuse of
14
discretion standard to the third prong (whether there is a compelling reason
for finding that termination of that relationship would be detrimental to the
child). (Caden C., at pp. 639–641; In re J.C., at pp. 530–531.) Under the
substantial evidence standard of review, we consider the evidence, and make
all reasonable inferences therefrom, favorably to support the court’s order
and disregard contrary evidence as not accepted by the court as having
sufficient veracity or persuasiveness. (Caden C., at p. 640; In re S.B. (2008)
164 Cal.App.4th 289, 297–298 (S.B.).) Under the abuse of discretion
standard of review, we determine whether the juvenile court’s decision
exceeded the bounds of reason, and, in so doing, we cannot substitute our
view for that of the juvenile court. (Caden C., at p. 641; Stephanie M., supra,
7 Cal.4th at pp. 318–319.)
B. Analysis
At the section 366.26 hearing, the juvenile court heard Mother’s
testimony and admitted in evidence the Agency’s reports. The Agency’s
reports described A.B.’s visits with Mother and the social worker’s opinions
as to whether A.B. and Mother had a significant relationship and whether
termination of that relationship would be detrimental to A.B. The court found
that Mother had failed to carry her burden on all three prongs of the
beneficial parent-child relationship exception. After finding that the
beneficial parent-child relationship exception did not apply, the court
terminated Mother’s parental rights and selected a permanent plan of
adoption for A.B.
Mother argues the court erred by finding the beneficial parent-child
relationship exception did not apply to preclude the termination of her
parental rights. First, she argues “the court never indicated just what the
mother should have done, given the inability to have any contact with the
15
child due to Covid-19 regulations.” The record, however, shows that even if
Covid-19 visitation restrictions had been lifted, Mother still would not have
been eligible for in person visitation due to her classification as a “high level”
prisoner. The court did not find any evidence in the record that Mother tried
to call A.B. or check on his “well[-]being” in any way. It then took Mother
about a month to establish visitation with A.B. once she was released from
custody. As the court noted, this is a “large amount of time” for a child so
young. Specifically, the court explained:
“The parent/child bond has three factors or elements that
must be shown by the parent in order to establish the
exception. One is regular visitation and contact. Two is a
relationship, the continuation would benefit the child such
that, three, the termination of parental rights would be
detrimental to the child.
“[¶] . . . [¶]
“I will turn to the first element, which is regular visitation
and contact. It’s been described as pretty straightforward
by the California Supreme Court. The question is whether
the parent[] [has] visited consistently, taking into account
the extent permitted by court orders. I will note that the
question is regular visitation and contact. So even where
visitation is not possible, a parent can meet this exception
by maintaining contact. That is, reaching out telephonically
to caregivers, perhaps, finding out and inquiring about the
status of the minor.
“I will note that between the birth of child for more than a
year after that until August 28th, 2021, the minor was in
the care of the caregiver, and the mother was in custody.
During that period there was no visitation. I don’t have any
evidence before me that there was any attempts to contact
the minor in any way during that period, even though I
understand there were restrictions in the facility. There
were COVID restrictions. There were ways to seek out
information about the minor to check on his well[-]being.
16
“We will note that once the mother was released, a month
went by, according to her own testimony, before she sought
out visitation. A month in the life of a one-year-old is giant.
That is a large amount of time. And the idea one would be
released from custody and wait an entire month before
reaching out to their child, it’s hard to find regular
visitation and contact under those circumstances.
“From that point on, we do have I believe something we
could say is regular visitation. And it is within the
parameters of the court order. The court ordered supervised
visitation. The fact she did not ask for more or get more
visitation, I don’t believe that is something to hold against
her.
“I think on balance, if you look at the entire period, the
court could readily find that there is no regular visitation
and contact under the first prong, and that is not met.
However—and I will make that finding. I find that prong is
not met.”
Mother also argues that the “facts . . . support a finding that the child
had a positive, beneficial relationship with her mother.” The beneficial
parent-child relationship, however, is not established any time a parent
demonstrates frequent and loving contact or a friendly and loving
relationship with their child. (In re J.C., supra, 226 Cal.App.4th at p. 529; In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.) The parent must
demonstrate a significant emotional attachment between the child and the
parent more than that of a “friendly visitor or friendly nonparent relative,
such as an aunt.” (In re Katherine J. (2022) 75 Cal.App.5th 303, 318–319.)
Here, evidence demonstrates Mother’s relationship with A.B. was like a
“family friend.” As the court explained:
“But turning to the second prong—in an abundance of
caution in case I am wrong about the first prong—whether
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or not there is a relationship, the continuation of which
would benefit the child. What do we have to look at for
that?
“Well, the high court has instructed us we look at a few
things. There’s many factors that could be considered.
Some of those factors are the age of the child, the portion of
child’s life spent in the parent’s custody, the positive or
negative effect of interaction between the parent and the
child, and the child’s particular needs.
“Now, of course, we look at how the child feels about,
interacts with and looks to and talks about the parent.
That is tough in a case where a child is so young.
“We also have to be mindful, though, that parent/child
relationships don’t always conform to a consistent pattern.
So we are not looking at whether this relationship is
necessarily parental in nature, given however one seeks to
define that.
“The question is: is there a relationship here. A positive
relationship. A substantial relationship.
“And given those factors, given the age of the child and the
portion of the child’s life spent out of the parent’s custody
and life entirely, it is more than half of [the child’s life]. Not
even two years old, and over a year of his life was spent
outside of the mother’s custody, but also outside of her
visitation. Outside of any contact with her.
“Whatever relationship that does exist now, is a—I think
this is clear if you read the reports—is a positive
relationship, but it’s not one much different than a child
could experience with, as court case law has said, a friendly
visitor. The child enjoys the visits. But it’s not such that if
the visits were to stop, that child would suffer harm.
“And so with that second factor, I want to be clear, I do not
find that there is a beneficial relationship. And the court
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has to look at not what might be a relationship in the
future. It’s what the relationship is right now.
“And so I understand that we might think, well, we need to
maintain this relationship so that in the future it can grow.
That is not the question. The question is today is there a
relationship in existence that merits maintaining, that
merits preservation.”
Indeed, although A.B. enjoyed his weekly playtime with Mother, he had no
emotional response to her affection, experienced no distress when visits with
her ended, and was able to return to his routine easily. Our review of the
record shows substantial evidence upon which the court could reasonably rely
to conclude that there was not a significant emotional bond between Mother
and A.B.
Finally, Mother complains that the court’s finding that A.B. will not
suffer detriment if his relationship with her is terminated was “conclusory.”
Assuming for the sake of argument that Mother established a beneficial
relationship, we cannot find the court abused its discretion in ultimately
concluding that the benefits A.B. would realize from adoption outweighed any
harm or detriment he might suffer from the terminating Mother’s parental
rights. The court explained its reasoning:
“And I turn to the third element. Termination of that
relationship would be detrimental to the child. So the court
has to decide whether it would be harmful to the child to
sever the relationship for adoption.
“[¶] . . . [¶]
“The court has to assume that terminating parental rights
terminates their relationship. And so with that, the court
has to decide whether the harm of severing the relationship
outweighs the security and sense of belonging that a new
family would confer. If severing the relationship would
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deprive him to substantial positive emotional attachment,
such that even considering the benefits of a new adoptive
home termination would harm the child, the court should
not terminate parental rights. That simply has not been
shown.
“I do not have here a relationship with a parent that is so
important to the child that the security and stability of a
new home would not outweigh its loss. So I do not find that
the third factor is also met, based on the evidence that was
presented today.”
Mother did not present any evidence that A.B. would be greatly harmed
by severance of the parental relationship, or that the security and stability of
a new home would not outweigh the loss of this relationship. (Caden C.,
supra, 11 Cal.5th at p. 633.) Instead, social worker Nguyen explained that
A.B. was “at a critical stage of development where he is in need of
permanency and stability, which can be provided to him through adoption by
his current caregivers.” Social worker Nguyen also opined that “adoption
would be beneficial in providing him with a healthy upbringing and a sense of
permanency. Through being adopted, [A.B.] can count on his needs being met
without struggle, and having a sense of security, and belonging.” We
conclude that “[t]he court was entitled to find the social worker’s opinion
credible and give great weight to her assessment. We cannot reweigh the
evidence or substitute our judgment for that of the [juvenile] court.” (In re
Cole C. (2009) 174 Cal.App.4th 900, 918.)
“ ‘Adoption is the Legislature’s first choice because it gives the child the
best chance at [a full] emotional commitment from a responsible caretaker.’ ”
(In re Celine R. (2003) 31 Cal.4th 45, 53.) On this record, the juvenile court
did not exceed the limits of legal discretion in determining that providing
A.B. this commitment outweighed the benefit he would gain through
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maintaining his pleasant relationship with Mother. (Caden C., supra, 11
Cal.5th at p. 641.) Accordingly, we find no evidence of exceptional
circumstances requiring application of the parental-benefit exception to the
termination of Mother’s parental rights.
DISPOSITION
The orders denying the section 388 petition and terminating parental
rights are affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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