Filed 6/29/22 In re O.S. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

D.K. (mother) appeals from an order terminating her parental rights to her child, O.S. (minor). Mother asserts the court erred by declining to find the beneficial parent-child exception applicable. We disagree and affirm the order.

I.
BACKGROUND

The Mendocino County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code[1] section 300, subdivisions (b)(1) and (g), alleging the minor was at substantial risk of harm due to lack of adequate or safe living environment and because mother was unable to provide regular care for the minor due to mother’s mental health issues. Mother intended to move minor into a van that was reported to be filthy, contained mold, and was not habitable, and minor appeared to have developmental delays and lacked socialization. Mother also had made suicidal comments that included walking into the ocean with minor. The court ordered minor detained. Following a contested jurisdiction hearing, the court found true the allegations in the petition.

Minor was placed with nonrelated extended family members. The disposition report stated minor had no physical or developmental concerns, but noted minor “does not maintain appropriate physical boundaries with other children and adults and goes with strangers easily.” Mother regularly visited with minor two times per week, and those visits were reported to be “positive and nurturing in nature.” The court ordered reunification services for mother, with a minimum of two hours per week in visitation.

The six-month status report noted mother regularly attends her scheduled visits with minor, and she “often brings snacks and they enjoy having picnics together.” Minor “often lights up when she is being picked up by staff, knowing that she is heading to a visit with her mom.” Minor stated she has fun with mother, and was observed to be comfortable in her company. The attached visitation logs indicated the interactions between mother and minor were positive and affectionate.[2] However, the visitation logs noted minor does not call mother “mom,” but uses her first name. The foster family also reported minor continued to struggle with appropriate boundaries and “easily engages with strangers.” Minor also began exhibiting sexualized behaviors.

The Agency subsequently filed an additional petition to allege mother had exposed minor to sexual misconduct. At the section 342 jurisdictional hearing, the Agency’s report noted mother “displayed a complete lack of insight as to how to protect [minor] physically and emotionally” from sexual abuse, and displayed a lack of concern. Mother repeatedly denied her boyfriend abused minor and stated her intent to reside with him and have him around minor. After the filing of this petition, visits became supervised due to concerns that mother would allow contact between her boyfriend and minor, or engage in inappropriate conversations with minor. These allegations were later dismissed.

At the 12-month review, the Agency reported mother and minor continued to have regular visitation that was affectionate in nature. Minor also began expressing a desire to be adopted and was observed informing mother “that she wants to live with the foster mother” and stating, “ ‘I love you mommy, but I will not miss you.’ ” However, minor also expressed a desire to live with the foster parent and mother, and repeatedly stated she wanted to continue to visit mother.

Following a contested disposition hearing, the court ordered reunification services continued as to mother and set an 18-month review hearing. Visitation continued successfully, including an extended trial home visit due to COVID-19. Minor was both excited about spending more time with mother, but also had a lengthy tantrum, stated she wanted to live with the foster parent, and asked the foster parent if she would miss minor. At the 18-month hearing, the court ordered minor returned to mother and transferred the matter for family maintenance.

Thereafter, the Department filed a section 387 supplemental petition against mother, alleging she allowed her boyfriend around minor despite agreeing to no contact, and left minor with an inebriated male. The petition further alleged mother was verbally and physically “lashing out” at minor. The Department requested minor be detained.

Mother acknowledged allowing contact with her boyfriend, and the minor reported mother yelling “a lot,” which made her feel scared. The court found true the allegations in the supplemental petition and ordered minor detained.

Since minor’s re-detention, mother and minor again had regular, positive, and affectionate visitation. When mother and minor had to transition to video visitation due to COVID-19, minor repeatedly stated she missed mother and wanted to see her in person. However, minor also stated she wanted to change her last name to that of the foster parent because she wanted to be part of that family. In the section 387 disposition report, the Agency requested the court terminate reunifications services in light of the prior 18 months of services and schedule a hearing under section 366.26 (.26 hearing). Despite the affectionate visitation, the Agency noted mother allowed unsafe contacts for minor—including contact with her boyfriend and an inebriated male—and was considering allowing contact with minor’s alleged father, who had been imprisoned for statutory rape. Such contacts were concerning because the Agency noted minor does not maintain good boundaries and exhibits a sense of comfort in unfamiliar places and with unfamiliar people. The Agency also noted mother had been struggling to implement her parenting skills and shifted away from taking responsibility for the events leading to minor’s re-detention.

Following the disposition hearing, the court ruled mother would not be offered further reunifications services, set a .26 hearing, and limited visitation to two hours per month.

In both the .26 hearing report and the adoption assessment, the Agency noted minor struggled with the decreased visitation with mother. The reports also state minor was able to “quickly” adjust to the decreased visitation with therapeutic assistance. The .26 hearing report noted minor calls the foster parent “mom,” is very affectionate towards her, wants to be adopted, and considers herself a member of the foster family. The adoption report recommended termination of parental rights.

A bonding study was conducted at mother’s request. The report was based on interviews with mother, minor, minor’s therapist, minor’s foster parent, and the various social workers and case managers involved in the dependency matter. It also was based on approximately 4.5 hours of observed interactions between mother and minor and a review of the relevant reports and records. The study noted mother and minor’s contact “has been substantial,” with “overall positive interactions” that are affectionate and “mutually enjoyable.” It noted minor had “a brief intensification of feelings towards [mother]” after reunification services were terminated. The study concluded minor had a “moderate positive bond” with mother, which “is not at a level where [minor] would be greatly harmed if deprived of it.” It explained the bond is moderate, not substantial, because while mother is important to minor, mother “is not the central focus of [minor’s] maternal longings” and instead “those longings appear to center around [minor’s] foster mother.” The study further noted minor “loves everyone” and “everybody is family to her,” which is characteristic of her disinhibited social engagement disorder diagnosis. The study concluded minor may experience some short-term emotional distress from the loss of mother, but minor is likely to adapt to mother’s absence.

Following a contested .26 hearing, the court ordered a permanent plan of adoption and concluded the beneficial parent-child exception did not apply. Mother timely appealed.

II.

DISCUSSION

Mother argues the juvenile court’s rejection of the beneficial parent-child exception was not supported by substantial evidence. We disagree.

“ ‘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.] ‘Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” ’ ” (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) The Supreme Court has explained there are “three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)

In reviewing the trial court’s ruling, we apply a hybrid standard of review. (Caden C., supra, 11 Cal.5th at p. 639.) The first two elements—regular visitation and a beneficial relationship—involve determinations that are essentially factual and are reviewed for substantial evidence. (Ibid.) The third element—detriment to the minor resulting from termination—involves “a delicate balancing” and “is discretionary and properly reviewed for abuse of discretion.” (Id. at p. 640.)

There is no dispute mother regularly visited minor and met the first element of the beneficial parent-child exception. At issue, however, is whether mother met the second and third elements.

Mother argues she meets the second element because the record, including the bonding study, demonstrates she and minor shared an affectionate, loving, positive bond. Mother notes minor consistently expressed a desire to have ongoing contact with mother, minor spent approximately four years of her life under mother’s care, and their visits were marked with affection.

Undoubtedly, mother and minor shared a loving and affectionate bond. The record is replete with such evidence. However, the record also contains substantial evidence supporting the juvenile court’s conclusion that this bond was only moderate and did not meet the required showing of “a substantial, positive, emotional attachment to the parent.” (Caden C., supra, 11 Cal.5th at p. 636, italics added.) Most notably, the expert who prepared the bonding study concluded the bond was only moderate—not substantial—and minor’s “maternal longings” had been transferred to the foster parent. The expert noted minor has “a strong emotional preference” for the foster parent and sought safety and security from her. It was appropriate for the juvenile court to rely on the bonding study expert for assessing the strength of minor’s bond to mother, and the study’s conclusion supports the juvenile court’s holding. (See id. at pp. 632–633 [“often expert psychologists who have observed the child and parent and can synthesize others’ observations will be an important source of information about the psychological importance of the relationship for the child”].) In addition to the bonding study, the record—while demonstrating an affectionate and loving bond—also contained evidence that minor consistently stated she wanted to live with her foster parent and considered herself part of the foster family. On appeal, it is not our role to substitute our judgment for that of the trial court unless there is insufficient evidence to support the court’s findings. (In re Michael G. (2012) 203 Cal.App.4th 580, 584.) The record here demonstrates substantial evidence supports the court’s finding that a substantial, positive emotional attachment did not exist.

Moreover, even if we were to conclude a substantial, positive emotional attachment existed between mother and minor, mother has not met her burden as to the third element: demonstrating that the benefit to minor in maintaining the relationship outweighs the benefit of adoption. As explained by the Supreme Court, “courts need 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. [Citation.] . . . [T]he effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet . . . a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental.” (Caden C., supra, 11 Cal.5th at p. 633.) Accordingly, courts must ask whether “the benefit of placement in a new, adoptive home outweigh[s] ‘the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]’ [Citation.] 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.” (Id. at pp. 633–634, italics added by Caden C.)

The record contains evidence indicating, at certain times, minor struggled when facing decreased contact with mother. The record also contains evidence that minor repeatedly expressed a desire to maintain ongoing visitation with mother. However, “[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.’ ” ’ [Citation.] But ‘ “ ‘[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” ’ ” (Caden C., supra, 11 Cal.5th at p. 641.)

The affectionate nature of mother and minor’s interactions does not indicate the court abused its discretion in concluding mother’s relationship with minor did not promote her well-being to such an extent that it outweighed the well-being minor would gain from adoption. (See In re K.P. (2012) 203 Cal.App.4th 614, 621.) In light of minor’s diagnosis of posttraumatic stress disorder and disinhibited social engagement disorder, minor had a heightened need for stability, security, and safety. Adoption provides such stability and security, and the record indicates minor sought such security and stability from the foster parent. Minor stated she wanted to be adopted by the foster parent because she could “keep [minor] safe for a long time.” The bonding study noted minor had transferred her primary maternal attachment to the foster parent, and minor had expressed dismay at the prospect of not living with the foster parent—a future possibility under any scheme apart from adoption. Accordingly, we cannot conclude the juvenile court abused its discretion in concluding the security and stability of a new home outweighed the loss of the relationship between minor and mother.

III.

DISPOSITION

The juvenile court’s order terminating parental rights and declaring adoption to be the permanent plan for minor is affirmed.

Margulies, J.

WE CONCUR:

Humes, P. J.

Wiss, J.*

A164075

In re O.S.

[1] All statutory references are to the Welfare and Institutions Code.

[2] There was one incident in which mother encouraged minor to take a toy from Safe Passage. The issue was addressed at the next meeting, and mother took responsibility for the incident.

* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.