Filed 3/17/22 In re K.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of San Diego County, Rohanee Zapanta, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

Ka.K. (Mother) appeals from the juvenile court’s order terminating her parental rights to her son at the hearing pursuant to Welfare and Institutions Code section 366.26.[1] Mother’s sole contention on appeal is that the court erred by failing to apply the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has a long history of alcoholism. In May 2019, she was so inebriated that she was unable to pick up K.K. from school after he assaulted another student. Similarly, in June 2019, Mother drank so much that she could not manage a fight between then 7-year-old K.K. and his then 5-year-old half-brother, I.R., both of whom have special behavioral needs.[2] Each of these incidents required the intervention of law enforcement and resulted in referrals to the San Diego County Health and Human Services Agency (Agency).[3] During the Agency’s investigation, Mother’s neighbor reported that there was daily screaming, yelling, and drinking in the home and that K.K. and I.R. would often get locked out when misbehaving. K.K.’s principal and teacher reported behavioral concerns and general neglect, stating that K.K. would wear the same pajamas to school for three days in a row, had an odor to him, and came to school with welts on his body from bed bugs. K.K. himself told a social worker that he was afraid of Mother and that “Mommy drinks a lot. She drinks every time, every day and every night.”

In June 2019, the Agency filed a section 300, subdivision (b) dependency petition alleging that there was a substantial risk K.K. would suffer serious physical harm or illness due to Mother’s alcoholism.[4] K.K. was removed and placed briefly at Polinsky Children’s Center before being placed with a non-relative extended family member (caregiver), who has known K.K. since birth. At the detention hearing, the juvenile court found prima facie evidence that K.K. is a person described by section 300, subdivision (b) and ordered his removal. At the August 2019 contested jurisdiction and disposition hearing, the court found the petition’s allegations true, deemed K.K. a dependent, and ordered reunification services for Mother, as well as supervised visits.

After the jurisdiction hearing, Mother visited with K.K. twice weekly while participating in an outpatient treatment program. Initially, it was reported that Mother was engaged and affectionate with K.K. even as he did not interact with her often, choosing instead to play video games on her phone or to ignore her at times. Then, during a visit in March 2020, Mother arrived at the visitation center appearing under the influence, with bloodshot eyes and slurring her words. Within five minutes, K.K. showed signs of discomfort due to Mother’s behavior, leading the monitor to end the visit early. Afterward, K.K. confirmed that he was uncomfortable and stated that he wished Mother would stop drinking.

In its February 2020 six-month status review report, the Agency recommended that K.K. remain with the caregiver and that visits remain supervised while Mother continues to participate in services. After this report was filed, it was determined that Mother needed a higher level of treatment than was provided in the outpatient program. She therefore entered a 90-day inpatient alcohol treatment facility in May 2020. While there, Mother’s visits with K.K. were converted to supervised weekly telephone calls. K.K. reported that he gets nervous when speaking to Mother.

At the July 2020 contested six-month hearing,[5] the court adopted the Agency’s recommendations and set the matter for a 12-month hearing. The court gave the social worker discretion to convert Mother’s visits with K.K. from supervised to unsupervised.

In its August 2020 12-month status review report, the Agency continued to recommend that K.K. remain with the caregiver, visits be supervised, and reunification services be provided for Mother. At the October 2020 12-month hearing, the court again adopted these recommendations and set the matter for an 18-month review hearing. Mother briefly had unsupervised visits with K.K. from September 13, 2020 until she tested positive for alcohol in October 2020.

In its December 2020 18-month status review report, the Agency departed from its previous recommendations. It noted that during the entirety of the dependency proceedings, Mother maintained her sobriety for only five months, with three of those five months occurring while she was in an inpatient treatment program. The report further noted that Mother’s issues with sobriety have caused K.K. to express anxiety about “what to do if mommy is drinking again.” Thus, due to Mother’s inability over an extended period of time to demonstrate that she could remain sober and ensure K.K.’s safety, the Agency recommended that reunification services be terminated and a section 366.26 hearing be set. The court adopted these recommendations at a February 2021 hearing, terminated reunification services, and set the matter for a permanency hearing.

In its June 2021 post-permanency planning review report, the Agency reported that K.K. had anxiety surrounding visits with Mother. He worried about upcoming visits and making Mother upset if he did not want to visit. At night, K.K. worried Mother would appear at the caregiver’s home unannounced, intoxicated, and ready to “start a fight” with the caregiver. The caregiver had to repeatedly reassure K.K. that all of the windows and doors were locked and secure. K.K. has also accused Mother of being a “liar” because she promised to stop drinking but has not. Still, K.K. was observed to be engaging and affectionate with Mother during several visits in April, May, and June 2021.

On July 19, 2021, K.K. shared with the social worker a picture that he drew. It depicted a house with a broken window and two adults and a TV on the front yard. K.K. identified the adults as Mother and an uncle, stating, “They threw the TV out the window.” The adults were holding something in their hands. When the social worker asked what they were holding, K.K. said, “oh beer bottles.” K.K. had also drawn a stick figure standing in front of the house with an object in its hand. The social worker asked him to identify that person and the object, and K.K. replied, “Oh that’s a phone for me to call 9-1-1.”

In a July 2021 addendum report, the Agency recommended that parental rights be terminated and that adoption be selected as the permanent plan for K.K. It determined that K.K. is adoptable and that the beneficial parent-child relationship exception does not apply. Specifically, it noted that Mother’s alcoholism has negatively impacted K.K., causing him to develop trust issues regarding Mother’s intentions and plans to reunite. It also had a detrimental effect on her relationship with K.K. in that it led to an unhealthy parent-child relationship where Mother was unable to take on the responsibility of K.K.’s daily care and supervision.

Shortly before the July 2021 section 366.26 hearing, the social worker mistakenly informed Mother and the caregiver that future visits would soon be suspended. When the caregiver relayed this information to K.K., he responded, “Good, then I don’t have to be scared anymore,” and the caregiver noted that K.K.’s mood lightened dramatically. At the section 366.26 hearing, however, the court agreed with Mother that visits would continue up until the trial date. The court then set the matter for trial.

After this hearing, K.K. and Mother continued with their visits, but K.K.’s behavior was no longer engaging and affectionate. On August 8, he yelled “liar” at Mother and said, “and you want me back, really.” On August 12, K.K. asked Mother, “what would you do if I killed myself?” while gesturing slitting his throat and holding a plastic butter knife on his thumb as if he was going to cut himself. On September 9, Mother asked K.K. if he would like to visit with his uncle, even though this uncle became very upset with K.K. during a previous visit, called him a “little manipulator,” and said that supervised visits were a “waste of his time.” Mother encouraged K.K. to visit the uncle even though K.K. indicated that he did not want to. On September 16, K.K. asked Mother if she drank a lot while she was pregnant with him. Mother denied that she did, but K.K. was very upset after the visit and stated Mother is a “liar.” On September 20, K.K. again asked Mother if she drank while she was pregnant with him. Mother did not respond.

K.K.’s behavior outside of his visits with Mother was also troubling. On August 10, he told the caregiver, “life is too hard and someone should just kill me.” On August 15, the caregiver’s mother e-mailed the social worker to express concern about recent changes in K.K.’s behavior. Reportedly, he had become more “whiney,” defiant, and aggressive. He said that he hated his life and did not want any more visits with Mother, but he also worried that Mother would feel sad or upset if she knew his true feelings. In the e-mail, the caregiver’s mother wrote of K.K.’s behavior that day, stating, “Everything seemed to set him off. He went screaming into the backyard yelling a mosquito had bitten him and was sucking his blood and he was going to die. He was serious, he was frightened. In between these incidents he’d make statements like ‘I don’t know why I’m so angry’ or ‘please don’t make me angry again.’ He was never able to calm down throughout that time. . . . His behavior has worsened over the last 6 weeks or so but has really escalated since his last visit with [Mother] starting with his talking to her about dying. I don’t think he is able to say he doesn’t want to go on the visits — he is so worried about [Mother’s] feelings.”

In September 2021, K.K.’s attorney filed a section 388 petition requesting that the court halt all visitation with Mother. The petition alleged that K.K.’s behavior had “seriously deteriorated” since the July 2021 hearing, he had become aggressive and defiant, and he was engaging in behaviors that could lead to self-harm. In addition, he had expressed suicidal ideation. Attached to the petition was a declaration from the caregiver. She stated that K.K. has expressed feeling safest during visits with Mother when they are at the visitation center because “[t]here are more people to watch” him and Mother. K.K. had also become very anxious when the caregiver is not around. At a hearing on the section 388 motion, the court terminated the supervised visits due to the detrimental impact on K.K.

The section 366.26 hearing was held on October 6, 2021. Relying on the Agency’s reports and following arguments from counsel, the court found K.K. to be both generally and specifically adoptable. It further found that the beneficial parent-child relationship exception did not apply and, therefore, terminated parental rights and selected adoption as the permanent plan for K.K.

The court’s determination that the beneficial parent-child relationship exception did not apply was based on multiple incidents demonstrating the negative effects of the parent-child relationship. This included K.K.’s July 19 drawing of a broken window, a TV on the front yard, his mom and uncle holding beer bottles, and K.K. holding a phone to call 911. It also included the August 8 incident where K.K. called Mother a liar; the August 12 incident where he asked what would happen if he killed himself; the September 9 incident where Mother insisted that K.K. visit his uncle who upset him the week before; and K.K.’s repeated entreaties for information as to whether Mother drank while pregnant with him. The court also relied on K.K.’s statement, “I love my mom. She makes me angry,” and on the negative behavioral changes observed to begin one or two days before a scheduled visit and to continue for a period thereafter. Thus, the court found by clear and convincing evidence that there were no circumstances that would make termination of parental rights detrimental to K.K. Mother appeals.

DISCUSSION

Mother contends the court erred by finding at the contested section 366.26 hearing that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights and selection of a permanent plan of adoption for K.K.

A

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. (1993) 5 Cal.4th 295, 309.) 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.)

A parent’s burden at a section 366.26 hearing is 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 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).) For this exception to apply, the parent must prove three elements: (1) the parent has maintained regular visitation and contact with the child; (2) the child has a beneficial relationship with the parent, including a substantial, positive, and emotional attachment to the parent; and (3) the child would suffer detriment from termination of that relationship even when balanced against the countervailing benefit of a new, adoptive home. (Ibid.; In re Caden C. (2021) 11 Cal.5th 614, 636-637.) The third element may alternatively be described as requiring proof that the beneficial relationship between the parent and child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

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.” (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395, 397.) 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.; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) For the beneficial parent-child relationship exception to apply, the parent must show, inter alia, a significant emotional attachment between the child and the parent more than that of a friendly visitor or friendly nonparent relative. (In re Katherine J. (2022) 75 Cal.App.5th 303, 318-319; In re Angel B. (2002) 97 Cal.App.4th 454, 467-468; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) 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. (In re Angel B., at p. 467.)

On appeal, we apply a hybrid standard in reviewing a juvenile court’s determination whether the beneficial parent-child relationship exception applies. (In re Caden C., supra, 11 Cal.5th at pp. 639-640; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.) “We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child.” (In re Anthony B., supra, 239 Cal.App.4th at p. 395.) 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. (In re S.B. (2008) 164 Cal.App.4th 289, 297-298; In re Casey D. (1999) 70 Cal.App.4th 38, 53.) 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

B

Mother asserts the court erred by finding the beneficial parent-child relationship exception did not apply to preclude termination of her parental rights because she shares a strong bond with K.K. that was formed by living with him for the first seven years of his life and was maintained through consistent visitation with K.K. Mother argues that termination of their relationship would be detrimental to K.K. and that the benefit to K.K. of maintaining the relationship outweighs any benefit to K.K. of a permanent, adoptive home.

Regarding the first element of the beneficial parent-child relationship exception, the court did not make a specific finding as to whether Mother maintained regular visitation and contact with K.K. Nonetheless, the Agency concedes, and the record supports, a finding that Mother did do so. (§ 366.26, subd. (c)(1)(B)(i); In re Caden C., supra, 11 Cal.5th at p. 636.)

Regarding the second element of the exception, the court implicitly found that K.K. did not have a beneficial relationship with Mother that included a substantial, positive, and emotional attachment to her. (§ 366.26, subd. (c)(1)(B)(i); In re Caden C., supra, 11 Cal.5th at p. 636.) We presume the court considered the entire record, including the Agency’s reports, which included information about how K.K. felt about, interacted with, looked to, and talked about Mother. (In re Caden C., at p. 632.) The court expressly referred to K.K.’s own words: “I love my mom. She makes me angry.” It highlighted K.K.’s July 19 drawing as a reflection of his perception and understanding of his relationship with Mother: Mother holding a beer bottle after throwing a TV out of a window, while K.K. holds a phone to call 911. The court noted multiple incidents in August and September 2021, including K.K. yelling at Mother and calling her a liar, asking what she would do if he killed himself, and asking repeatedly if she drank while pregnant with him. The court then considered K.K.’s behavior, which would decline shortly before a visit and continue shortly thereafter. These factors lead us to conclude the court implicitly found K.K. did not have a beneficial relationship with Mother within the meaning of section 366.26, subdivision (c)(1)(B)(i).

We conclude there is substantial evidence to support the court’s finding that K.K. did not have a beneficial parent-child relationship with Mother. While there is no dispute that K.K. loves Mother and has enjoyed some visits with her, that factor does not, on its own, show there is a beneficial parent-child relationship. (In re J.C., supra, 226 Cal.App.4th at p. 529.) Neither does the incidental benefit that comes from the interaction between a natural parent and a child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) On the contrary, there is ample evidence showing such a beneficial relationship does not exist. The record shows that the first seven years of K.K.’s life, which was spent in Mother’s care, was marked by discord and trauma. Mother was often inebriated and unable to tend to K.K.’s daily needs, such as personal hygiene, let alone his special behavioral needs. The family had previously been referred to the Agency 20 times, with three substantiated reports and a voluntary case attributed to emotional abuse and Mother’s drinking. Mother’s neighbor reported yelling and screaming on a daily basis, and K.K. and his brother were often locked out of the home. When he was detained, K.K. reported that he was afraid of Mother.

Further, the record is replete with evidence that the visits with Mother had a detrimental effect on K.K. He experienced anxiety and increased behavioral problems shortly before and after these visits. He hoped to avoid them but worried Mother would become sad or upset if he did not attend. He worried about “what to do if mommy is drinking again.” He also felt unsafe with Mother. He worried she would appear at the caregiver’s home intoxicated and combative, requiring repeated assurances that the home was secure. He drew a picture of Mother drinking after having thrown a TV out of a window, and K.K. standing to the side with a phone to call for help. He stated that he preferred to have visits at the visitation center because “[t]here are more people to watch.” Notably, when the social worker mistakenly informed the caregiver in July 2021 that visits with Mother would be suspended, K.K. said, “Good, then I don’t have to be scared anymore,” and his mood lightened dramatically. This is evidence of a lack of a significant bond with Mother.

Tellingly, K.K.’s behavior deteriorated dramatically when the visits with Mother resumed following the July 2021 hearing. He yelled at Mother, calling her a “liar” multiple times. He did not trust that she wanted to reunite with him, stating, “and you want me back, really.” During one unsettling visit, he asked, “what would you do if I killed myself?” and gestured so as to suggest self-harm. He became upset when Mother denied or refused to respond when he asked if she drank while pregnant with him. Even when he was at home, he made comments to the effect that he hated his life and wanted to die. He became more defiant and aggressive and was unable to regulate his emotions. He specifically said that he does not want any more visits with Mother. Indeed, the detrimental effect of the visits on K.K. led the juvenile court to terminate them.

This evidence could reasonably support the finding that Mother’s relationship with K.K. was traumatic. Accordingly, there is substantial evidence to support the court’s finding that K.K. did not have a beneficial relationship with Mother, including a substantial, positive, and emotional attachment to Mother, within the meaning of section 366.26, subdivision (c)(1)(B)(i). (In re Caden C., supra, 11 Cal.5th at p. 636.) Mother’s citation to evidence or inferences therefrom that would have supported a contrary finding by the court are unhelpful, as our role on review is not to reweigh the evidence. (In re S.B., supra, 164 Cal.App.4th at pp. 297-298; In re Casey D., supra, 70 Cal.App.4th at p. 53.)

Assuming arguendo there was insufficient evidence to support the court’s finding that the second element of the beneficial relationship exception was not shown by Mother, we nevertheless conclude the court did not abuse its discretion by finding that Mother failed to carry her burden to show the third element of that exception. Specifically, we conclude the court reasonably found that Mother had not shown that K.K. would suffer detriment from the termination of his relationship with Mother even when balanced against the countervailing benefit to K.K. of a new, adoptive home. (§ 366.26, subd. (c)(1)(B)(i); In re Caden C., supra, 11 Cal.5th at p. 636.) The substantial benefits to K.K. of termination of Mother’s parental rights and selection of adoption as his permanent plan are amply shown by the evidence in the record. Since K.K.’s placement with the caregiver in June 2019, he has made significant improvements behaviorally, personally, and academically. The caregiver focuses on K.K.’s special behavioral needs and provides one-on-one help when necessary. K.K. has thrived in the caregiver’s home and has been treated with patience and love. In fact, K.K. has known the caregiver his entire life and expressed that he wanted to be adopted by her. The caregiver, in turn, loved K.K. and wished to adopt him. The Agency, too, recommended that Mother’s parental rights be terminated and adoption selected as K.K.’s permanent plan. Based on the record, the court did not abuse its discretion by finding that the benefits to K.K. of adoption (e.g., a stable and permanent home) outweighed the benefits to him of maintaining his relationship with Mother, and therefore the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude the termination of Mother’s parental rights and selection of adoption as K.K.’s permanent plan. (In re Caden C., supra, 11 Cal.5th at pp. 636-637.) To the extent Mother cites evidence or inferences therefrom that would have supported a contrary finding by the court, she misconstrues and/or misapplies the applicable abuse of discretion standard of review. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.

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

[2] K.K. has been diagnosed with attention-deficit hyperactivity disorder and alcohol-related neurodevelopmental disorder.

[3] The family had previously been referred to the Agency 20 times, dating back to 2013. Most of the referrals were deemed inconclusive, unfounded, or were evaluated out. However, there were three substantiated reports of general neglect, emotional abuse, and physical abuse. Between August 2015 and June 2016, the family had a voluntary case open due to emotional abuse and Mother’s drinking. The case closed only because it exceeded time limits.

[4] The Agency also filed a petition on behalf of I.R., who was placed with his father. K.K.’s father’s whereabouts were unknown when the petition was filed. He was finally located on or around June 2021, whereby he immediately relinquished his parental rights. This appeal concerns only K.K. and Mother.

[5] The six-month hearing was originally set for February 2020 but was continued briefly when Mother requested a contested hearing and then continued for several months due to the onset of the COVID-19 pandemic.