Filed 5/6/22 In re S.K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Harry A. Staley, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Vincent W. Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Michelle K. (mother) appeals the juvenile court’s order terminating her parental rights to S.K. (born December 2015) and J.H. (born August 2018) (collectively, the children) pursuant to Welfare and Institutions Code section 366.26.[1] David H. is the father of J.H.[2] S.K.’s father was never located.[3] On appeal, mother contends the juvenile court erred in finding that the parental-benefit exception to adoption did not apply. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Petitions and Detention

On September 26, 2019, the Kern County Department of Human Services (department) filed petitions pursuant to section 300, subdivision (b), alleging the children were at risk of harm due to mother and David H.’s willful or negligent failure to adequately supervise or protect them, and mother’s substance abuse problems. The children had come to the attention of the department as a result of a domestic violence incident between mother and David H. The children were taken into protective custody and placed in a resource family approval (RFA) home.

The detention report indicated that on September 15, 2019, David H. choked mother during an argument and was arrested for spousal battery (Pen. Code, § 243, subd. (e)(1)). Although the children were present during the altercation, they did not witness it. Law enforcement officers offered mother an emergency protective order, but she declined.[4] Mother reported she and David H. had been in a relationship for approximately four years and had a history of unreported domestic violence. A second altercation occurred two days later in which David H. ran through the desert with J.H. in his arms while mother chased them. David H. swung at mother while holding J.H. and claimed she pushed him and caused him to fall. J.H. was not injured. Mother denied pushing him. That same day mother tested positive for amphetamine, methamphetamine, and ethanol.

Mother had a history of child protective services involvement dating back to 2006 relating to S.K., J.H., and two older children who now lived with their father in Missouri. Six out of eight allegations between 2006 and 2019 were substantiated. The allegations all related to her substance abuse.

On October 1, 2019, at the detention hearing, the juvenile court ordered the children detained and ordered mother to participate in reunification services and supervised visits twice a week for two hours.

Jurisdiction and Disposition

The reports prepared for the disposition hearing stated the children were placed together with J.H.’s paternal grandparents. Mother’s initial case plan required her to participate in counseling for parenting and child neglect, domestic violence, and substance abuse. She was also ordered to submit to random, unannounced drug testing. At the time the disposition reports were prepared, mother had enrolled in parenting and substance abuse counseling, but not in domestic violence counseling. She had submitted to one drug test, which was positive for amphetamine, methamphetamine, and ethanol. Mother had been visiting the children regularly. The department recommended reunification services be provided to mother and David H.

Supplemental disposition reports detailed that in November 2019, mother entered a 30-day inpatient rehabilitation program, but left after only three days. In December 2019, she was arrested for possession of controlled substance paraphernalia (Health & Saf. Code, § 11364).

On February 11, 2020, at the disposition hearing, the juvenile court found that mother’s progress toward alleviating or mitigating the causes necessitating placement had been minimal. She was ordered to continue participating in reunification services and supervised visits two times a week for two hours.

Six-month Review

The six-month status review reports indicated mother completed parenting counseling and was enrolled in domestic violence and substance abuse counseling. She was attending substance abuse “classes regularly and making substantial progress.” From February 2020 to July 2020, she was asked to submit to 18 random, unannounced drug tests. She failed to appear 10 times,[5] was excused one time, was unable to provide an adequate specimen five times, tested positive for amphetamine and methamphetamine one time, and tested negative one time. As far as visitation, her visits were going well and were of “good quality.” Overall, she had made moderate progress in her case plan and the department recommended continuing reunification services.

A supplemental report revealed that in August 2020, mother and David H. rented a house together and then got into two separate altercations, violating an active restraining order preventing him from being near her. The department’s social worker told mother they both violated the restraining order because she was with him. Both domestic violence incidents were reported to law enforcement and David H. was ultimately arrested. After the altercations occurred, David H. reported he was leaving for Georgia. Additionally, mother was asked to submit to six additional unannounced drug tests. She tested negative three times, tested positive one time, and provided inadequate specimens two times. The department noted that although the parents had made moderate progress in their respective case plans, they had not made sufficient progress to mitigate the circumstances that led to the children’s removal. Both parents failed to demonstrate they could abstain from using drugs and continued to engage in domestic violence. The department recommended terminating reunification services for both parents.

In December 2020, the department learned that mother was still in contact with David H. despite the active restraining order. The department’s social worker and mother’s family members convinced her to report the restraining order violation to law enforcement. When law enforcement officers arrived, mother showed them text messages that David H. had sent her. However, one of the officers believed the text messages showed a two-way text exchange. Mother was sad about reporting David H. because she did not want to get him in trouble.

In January 2021, the social worker supervising mother’s visit noticed she smelled like alcohol, but could not drug test her because there was no one to watch the children. A few days later, another social worker noticed mother smelled like alcohol during a home visit. The department was concerned with the parents’ inability to comply with the 10-year restraining order and maintain their sobriety. Although they had made moderate progress in their case plans, they had not made significant changes in their lives to warrant further services. The department recommended terminating reunification services for both mother and David. H.

On February 8, 2021, at the contested six-month review hearing, the juvenile court found that mother’s progress toward alleviating or mitigating the causes necessitating placement of the children had been moderate, but that she had not made acceptable efforts and had not availed herself of the services provided to facilitate the return of the children to her care. The juvenile court terminated her reunification services and set a section 366.26 hearing.

Section 366.26 Reports

The section 366.26 reports indicated that after one year of living with relatives, the children were moved to a RFA home again due to the relatives’ inability to care for them on a long-term basis. This was their third placement. Both children were meeting developmental milestones, but S.K. was struggling with his language.

The department reported mother visited the children consistently. Out of 154 possible in-person visits, she attended 91 visits. The children enjoyed spending time with her. She took age-appropriate toys and snacks to visits, and had age-appropriate conversations with them. By that point, the children had not lived with mother in over 18 months. The department reported, “There [was] a bond or relationship that exist[ed]” between them, but it was not a “strong” one. The children looked to their caregivers to meet their daily physical and emotional needs. The department concluded it would not be detrimental to the children to terminate the parents’ parental rights so that they could be adopted. The children were generally adoptable due to their young age and their lack of developmental and medical problems. The department recommended terminating the parents’ parental rights.

On August 31, 2021, at the contested section 366.26 hearing, the juvenile court found there was clear and convincing evidence the children were likely to be adopted. As for the parental-benefit exception, the juvenile court found as follows:

“The court does acknowledge that there is a level of a bond between the mother and the child—children—excuse me. And she has shown frequent loving contact and there’s an emotional bond that seems clear and that there’s some benefit to the children from her continued contact. [¶] … [¶]

“The court has to still balance the benefits of permanency, the detriment, if there is some detriment to breaking that bond through the termination of parental rights. But the court does find that that minimal detriment does not outweigh the benefits of permanency of adoption .…”

The juvenile court ordered parental rights terminated with a permanent plan of adoption for the children.

On October 21, 2021, mother filed a notice of appeal.

DISCUSSION

I. Legal Principles

“The sole purpose of the section 366.26 hearing is to select and implement a permanent plan for the child after reunification efforts have failed.” (In re J.D. (2021) 69 Cal.App.5th 594, 612.) “At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care.” (In re S.B. (2008) 164 Cal.App.4th 289, 296.) “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).” (Id. at p. 297.) “f the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan.” ([i]In re Caden C. (2021) 11 Cal.5th 614, 630–631 (Caden C.).)

One exception to adoption is the parental-benefit exception, which requires the parent to establish, by a preponderance of the evidence, “that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 629; see also § 366.26, subd. (c)(1)(B)(i).)

“The first element—regular visitation and contact—is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C., supra, 11 Cal.5th at p. 632.)

“As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) “In other words, ‘[t]he parent must show that 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.’ ” (In re J.D., supra, 69 Cal.App.5th at p. 615.) “[T]he focus is the child.” (Caden C., at p. 632.) The court may consider “ ‘[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 parent and child, and the child’s particular needs.’ ” (Ibid.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Ibid.) “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

“Concerning the third element—whether ‘termination would be detrimental to the child due to’ the relationship—the court must decide whether it would be harmful to the child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at p. 633.) The court 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.) “[T]he effects [on the child] 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.” (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.” (Id. at pp. 633–634.)

Moreover, “[a] parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the exception.” (Caden C., supra, 11 Cal.5th at p. 637.) “[W]hen the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency.” (Ibid.) “The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency.” (Ibid.) Thus, “[p]arents need not show that they are ‘actively involved in maintaining their sobriety or complying substantially with their case plan’ [citation] to establish the exception.” (Ibid., fn. omitted.) However, lack of progress is not irrelevant. “A parent’s struggles may mean that interaction between parent and child at least sometimes has a ‘ “negative” effect’ on the child.” (Ibid.) “Conversely, a parent who gains greater understanding of herself and her children’s needs through treatment may be in a better position to ensure that her interactions with the children have a ‘ “positive” … effect’ on them.” (Id. at pp. 637– 638.) “In both scenarios, the parent’s struggles speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent.” (Id. at p. 638.) They “may also be relevant to the detriment from terminating parental rights.” (Ibid.)

II. Standard of Review

The first two elements—regular visitation and beneficial relationship—are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) “In reviewing factual determinations for substantial evidence, a reviewing court should ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.’ [Citation.] The determinations should ‘be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.’ ” (Id. at p. 640.)

The third element—whether termination of parental rights would be detrimental to the child—is reviewed for abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 640.) A court abuses its discretion only when it “ ‘has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ ” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “When 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.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)

III. Analysis

As to the first element—regular visitation and contact—the juvenile court concluded mother showed there was “frequent and loving contact” between her and the children. The department’s reports evidenced that mother visited the children consistently. Thus, we find there was substantial evidence supporting the juvenile court’s finding.

Regarding the second element—whether the children would benefit from continuing the relationship—the evidence showed there was some benefit in continuing the relationship. The department’s reports indicated the children had a bond with mother, but it was not a “strong” one. When dependency proceedings were initiated, S.K. was three years old and J.H. was one year old. At the time of the section 366.26 hearing, S.K. was five years old and J.H. was three years old, and they had not lived with mother in over 18 months. Despite their time living apart, the visitation logs showed the children “enjoy[ed] spending time with their mother.” They often played and crafted together and their visits always concluded with hugs and kisses. The juvenile court found there was “an emotional bond that seem[ed] clear and that there[ was] some benefit to the children from [mother’s] continued contact.”

However, a parent must show the relationship confers more than “some incidental benefit.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “ ‘A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.’ ” (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)

We find substantial evidence supported the juvenile court’s finding that there was only “some benefit” in continuing the relationship.

Turning to the third element—whether termination of the relationship would be detrimental to the children—we discern no abuse of discretion. The juvenile court expressly found that continuing the relationship would only confer “some benefit” to the children (see In re Jason J., supra, 75 Cal.App.4th at p. 937 [“ ‘[a] biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing [the] relationship’ ”]), and that terminating the relationship would only cause them “minimal detriment.” Because the “minimal detriment [did] not outweigh the benefits of permanency of adoption,” we find the juvenile court did not abuse its discretion in finding that the parental-benefit exception did not apply.

DISPOSITION

The juvenile court’s order terminating mother’s parental rights is affirmed.

* Before Franson, Acting P. J., Smith, J. and DeSantos, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] David H. separately appealed the juvenile court’s order terminating his parental rights to J.H. in case No. F083375.

[3] The initial petition listed Dustin P. as S.K.’s alleged father, but a DNA test revealed he was not his biological father. Tim J. was then added to the petition as the alleged father, but after a diligent search he was not located and was ultimately served by publication.

[4] Although mother declined an emergency protective order, she later obtained a 10-year no-contact order.

[5] Failure to submit to a drug test was presumed a positive test result.