Filed 5/24/22 In re A.R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Judge Pro Tempore. Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.

INTRODUCTION

A.R. (mother) appeals from the orders terminating her parental rights with respect to her six children under Welfare and Institutions Code[1] section 366.26. She contends the juvenile court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights. Finding no error, we affirm.

BACKGROUND

Mother has six children: Ashley, born in January 2006; Anthony, born in March 2008; Allisson, born in July 2009; Andy, born in August 2011; Aaron, born in June 2014; and Eduardo, born in April 2018. Mother reported the fathers of the four older children do not have contact with the children and are not involved with the family.[2] When the case was initiated in May 2018, mother was in a relationship with E.A., the father of Aaron and Eduardo (the A. father). The children resided with mother and another maternal relative in the home of their maternal grandmother, M.S. (maternal grandmother). The A. father was often away from the family due to work, but visited the family residence on weekends.

In late April 2018, mother and Eduardo tested positive for amphetamine and methamphetamine upon Eduardo’s birth at the hospital. Their positive toxicology screens prompted a referral to the Department of Children and Family Services (Department). During an interview with the Department, mother admitted to using methamphetamine twice while she was pregnant with Eduardo: once in December 2017, and a second time a week before Eduardo’s delivery. Mother reported she knew she was pregnant when she used methamphetamine.

On May 1, 2018, the Department filed a petition under section 300, subdivision (b)(1) on behalf of all six children. The petition alleged the children were at substantial risk of serious physical harm due to mother’s abuse of amphetamine and methamphetamine. It also alleged Aaron and Eduardo were at risk of serious physical harm because their father knew or should have known about mother’s substance abuse but failed to protect them from it.

At the adjudication hearing held on August 13, 2018, the juvenile court sustained the petition with respect to mother and struck the allegations pertaining to the A. father. The four older children were released to mother, and Aaron and Eduardo were released to both of their parents, under Department supervision. The juvenile court ordered mother to participate in a full drug and alcohol treatment program with aftercare, weekly and random or on demand drug and alcohol testing, and, if recommended by her drug treatment program, a 12-step program. The court also ordered her to participate in individual counseling, as well as conjoint counseling with the A. father.

Eight days later, mother’s substance abuse counselor informed the Department that mother had tested positive for methamphetamine earlier that day. During an interview with the Department, she “admitted to using ‘crystal’” on the morning of her positive test to ease molar pain.

In light of mother’s positive drug test and her admission to using methamphetamine, the Department detained the children from mother and filed a supplemental petition under section 387. The petition alleged the children’s prior placements were ineffective for their protection because, despite juvenile court intervention, mother continued to abuse illicit drugs while they were in her care.

At a hearing held in October 2018, the juvenile court sustained the section 387 petition, removed all six children from mother, granted her reunification services, and granted her monitored visitation. The court found the four older children were suitably placed with maternal grandmother and released Aaron and Eduardo to their father. At the time, the A. father was residing in maternal grandmother’s home.

On December 5, 2018, the Department received a referral alleging the A. father sexually abused Ashley and Allisson. The next day, the Department detained Ashley, Allisson, Andy, and Anthony from maternal grandmother and placed them in foster care. Five days later, Eduardo and Aaron were detained from their father and placed with their maternal aunt.

Following an investigation, in mid-December 2018, the Department filed two petitions under section 342: one on behalf of the four older children, and one on behalf of Aaron and Eduardo. Both petitions alleged the children were at substantial risk of serious physical harm and sexual abuse due to the A. father’s sexual abuse of Ashley and Allisson. The petition filed on behalf of the four older children also alleged maternal grandmother knew or should have known about the A. father’s sexual abuse and failed to protect them by allowing him to have unlimited access to them. Based on these allegations, the section 342 petitions asserted the children fell within the purview of section 300, subdivisions (b), (d), and (j).

In late December 2018, Andy and Anthony were returned to maternal grandmother’s care. Eduardo and Aaron were placed in her care in late January 2019.

In February 2019, the Department amended both section 342 petitions by revising the allegations describing the nature of the A. father’s sexually abusive conduct.

The juvenile court adjudicated the amended section 342 petitions at a hearing held on April 16, 2019. With respect to mother, the juvenile court sustained the counts asserted under section 300, subdivision (d) and dismissed the other counts. With respect to the A. father, the juvenile court sustained the counts asserted on behalf of Aaron and Eduardo under section 300, subdivision (j), dismissed the other counts, and removed Aaron and Eduardo from both parents. In addition to requiring mother to participate in the services set forth in her original case plan, the juvenile court also ordered her to participate in sexual abuse awareness counseling.

The six-month status review hearing for the four older children took place on April 25, 2019. There, the juvenile court found continued jurisdiction was warranted, and that the children would be at substantial risk of detriment if returned to mother’s care. It also determined mother has been compliant with her case plan. Thus, the court continued her reunification services.

On October 31, 2019, the juvenile court held the 12-month review hearing for the four older children and the six-month review hearing for Aaron and Eduardo. The court found mother was minimally compliant with her case plan because, although she completed a sexual abuse awareness program, she failed to address her substance abuse issues. In support of this finding, the juvenile court observed that during the preceding review period: (1) mother was discharged from two substance abuse treatment programs “due to noncompliance and nonattendance”; (2) she admitted to relapsing and was unable to identify the trigger for the relapse; and (3) she failed to consistently test for drugs and alcohol. The juvenile court also found the A. father was not compliant with his case plan. Accordingly, it terminated both parents’ reunification services and set a permanency planning hearing under section 366.26.

On January 7, 2020, Ashley and Allisson were placed in maternal grandmother’s care.

At the section 366.26 hearing held on May 21, 2021, mother’s counsel contended mother’s parental rights should not be terminated because the beneficial parent-child relationship exception to adoption applied. In support, mother’s counsel relied solely on the evidence in the Department’s reports regarding the consistency and the nature of mother’s visits with the children; she did not present any other evidence. The juvenile court rejected her argument, finding the beneficial parent-child relationship exception did not apply because there was no evidence showing mother’s bond with her children was “so great that it would detrimentally devastate the children and impact them mentally, emotionally, [or] psychologically to break that bond.” It also observed the children “ha[d] . . . [a] safe, stable home with their maternal grandmother,” that maternal grandmother wanted to adopt them, that they were happy with her, and that those who were of speaking age stated they “want[ed] to be adopted [by her] and be stable.” The court therefore found “any benefit accruing to the child[ren] from [their] relationship with [mother] is outweighed by the physical and emotional benefit [they] will receive through the permanency and stability of adoption[.]”

Accordingly, having found the children were adoptable, the juvenile court terminated mother’s parental rights with respect to all six of her children. It also terminated the A. father’s parental rights with respect to Aaron and Eduardo. Mother timely appealed.

DISCUSSION

I. Governing Legal Principles and Standard of Review

“By the time of a section 366.26 hearing, the parent’s interest in reunification is no longer an issue and the child’s interest in a stable and permanent placement is paramount. [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) “At that hearing, the court determines whether to terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan.” (Caden C., supra, 11 Cal.5th at p. 625.)

“‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Thus, if the court finds the child is adoptable, “the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances [set forth in section 366.26] provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ [Citation.]” (Ibid.)

One of these exceptions is the “beneficial parent-child relationship exception[.]” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) This exception permits the selection of another permanent plan if “[t]he 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).)

In Caden C., supra, 11 Cal.5th 614, our Supreme Court interpreted section 366.26, subdivision (c)(1)(B)(i) and “discern[ed] three elements the parent must prove to establish the [beneficial parent-child relationship] exception[.]” (Id. at p. 631.) The court explained: “[T]he parent asserting the exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the 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. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (Id. at p. 636.)

The parties do not dispute that mother satisfied the first two elements. Their sole dispute lies in whether she satisfied the third element. On this point, our Supreme Court explained that the court’s evaluation of the third element consists of a “subtle, case-specific inquiry[,]” which requires the court to consider the following question: “[D]oes the benefit of placement in a new, adoptive home outweigh ‘the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 633.)

We apply a “hybrid standard” when reviewing a ruling on the third element of the test set forth above. (Caden C., supra, 11 Cal.5th at pp. 640-641.) “[T]he ultimate decision—whether termination of parental rights would be detrimental to the child due to the child’s relationship with his [or her] parent—is discretionary and properly reviewed for abuse of discretion.” (Id. at p. 640.) Any factual determinations made in support of that decision, however, are reviewed for substantial evidence. (Ibid.) “A court abuses its discretion only when ‘“‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’”’ [Citation.]” (Id. at p. 641.)

II. Analysis

As noted above, the parties do not dispute that mother satisfied the first two elements of the Caden C. test. Instead, their sole dispute concerns whether the juvenile court erred by finding the benefits the children would gain from adoption outweighed the detriment they would suffer from losing their relationship with mother.

Mother contends “the children have a substantial and positive attachment to [her] such that terminating their familial relationship would cause them great harm.” This harm, she argues, would “outweigh the well-being the children would gain in a permanent home.” In support of her position, she emphasizes she has consistently visited the children and spent quality time with them by purchasing and cooking food for them, talking to them, and helping them with their laundry. We are not persuaded by her argument.

Mother correctly observes that the record reflects her visits with the children were positive, and that the children looked forward to and enjoyed the visits. To avoid termination of parental rights, however, “[t]he parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that [the] parent and child find their visits pleasant. [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Instead, the parent must show “the relationship with [the] parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, [and therefore] termination would be ‘detrimental to the child due to’ the child’s beneficial relationship with [the] parent. [Citation.]” (Caden C., supra, 11 Cal.5th at pp. 633-634.) As discussed below, based on the evidence before us, we cannot conclude the juvenile court abused its discretion by finding mother failed to satisfy that burden.

By the time of the section 366.26 hearing in May 2021, maternal grandmother, the children’s prospective adoptive parent, had been caring for the children for a substantial period of time. Anthony and Aaron had been in her care with relatively minor disruption since late August 2018. Aaron and Eduardo were placed with her in January 2019. Ashley and Allisson have been living with her since January 2020.

According to the Department, maternal grandmother has “provide[d] the children with a superb level of care” and has been “committed to their overall safety and well-being.” She “provides a loving and nurturing environment for the children[,]” where they are “shower[ed] with affection and attention.” In addition to “prais[ing] the children when they do well,” maternal grandmother “is able to set boundaries with them[.]” She has ensured the children’s basic needs are met, such as by providing food, shelter, clothing, and school supplies. Under her care, the children attend school regularly and are up to date on medical and dental appointments.

Maternal grandmother has also ensured the children’s unique mental health and educational needs were met by facilitating their participation in services as required. This is particularly noteworthy because, while in her care, all the children except Eduardo were receiving mental health services. Ashley has been diagnosed with “Major Depressive Disorder and Other Specified Eating Disorder” and, until late fall 2020, was receiving intensive wraparound services. Aaron has been diagnosed with autism, ADHD, and bipolar disorder, and is non-verbal. He is a client of the Regional Center and has an IEP. Allisson and Andy have IEPs for specific learning disabilities.

Maternal grandmother reported she “ha[s] always been involved in the lives of the children by providing daycare and helping out [their] biological parents.” She reported she has a strong, loving, and caring relationship with all six children. Moreover, she has repeatedly expressed a desire to adopt them and provide them with stability and permanency. Her partner is supportive of her plan to adopt, and she has his help, along with the help of her adult daughter and a paid helper, to meet the children’s needs.

Ashley, Anthony, Allison, and Andy have consistently reported they liked living with maternal grandmother. The three older children reported they have a strong and loving relationship with her, and that they want to be adopted by her. While Andy, Aaron, and Eduardo were unable to speak to the nature of their relationship with maternal grandmother or their preferred placement, the record reflects they were attached to her, comfortable in her presence, and doing well in her care.

Based on the evidence discussed above, the juvenile court could reasonably find the children would derive significant benefits from placement in an adoptive home with maternal grandmother. In the face of this evidence, however, mother has not identified, and we could not locate, any evidence indicating the children’s relationship with her was so compelling and significant that termination of that relationship would result in detriment outweighing those benefits. For example, the record does not contain any evidence demonstrating the children might act out or experience emotional instability, insomnia, anxiety, difficulties in school, or depression, if their relationship with mother were terminated. (Cf. Caden C., supra, 11 Cal.5th at p. 633.) Nor does the record reflect the children had difficulty separating from mother when visits ended. Further, the record does not indicate the children reacted negatively when, due to the COVID-19 pandemic, their visits with mother took place virtually instead of in-person, or when her visits became inconsistent in August 2020, and she stopped calling the children on Mondays and Tuesdays.

We acknowledge that, as mother points out, the record reflects that on September 26, 2018, Ashley informed school personnel that she wanted to kill herself because mother was not residing with the family. On October 4, 2018, however, Ashley stated she no longer felt that way, and was working with her therapist to address her mental health issues. During an interview with the Department in December 2018, she indicated she did not have any suicidal thoughts or ideation. Moreover, by the time of the section 366.26 hearing, Ashley’s mental health services had been deescalated from wraparound services to less intensive services from a local mental health provider. And, as noted above, Ashley has since expressed that she wants to be adopted by maternal grandmother.

We also note that on February 23, 2019, while Ashley and Allisson were in foster care, the Department reported the girls “began crying” at the end of a visit with mother and maternal grandmother “because they had to return to [their] placement and could not stay with . . . mother and [maternal grandmother].” Even assuming this single, isolated incident suggests the girls may suffer some degree of emotional harm by losing their relationship with mother, the juvenile court could reasonably infer, based on the evidence discussed above, adoption by maternal grandmother “may alleviate the emotional instability” they would experience by “providing a new source of stability that could make the loss of [their] parent not, at least on balance, detrimental.” (Caden C., supra, 11 Cal.5th at p. 633.)

In sum, on the record in this case, we cannot conclude the juvenile court “‘“‘ma[de] an arbitrary, capricious, or patently absurd determination[ ]’”’” by finding the benefits of placing the children in a new, adoptive home outweighed the detriment they would suffer due to the loss of their relationship with mother. (Caden C., supra, 11 Cal.5th at p. 641.) Accordingly, the juvenile court did not err by declining to apply the beneficial parent-child relationship exception and terminating mother’s parental rights.

DISPOSITION

The orders terminating mother’s parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

COLLINS, J.

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

[2] B.R. is the father of Ashley, A.E. is the father of Anthony and Allisson, and S.R. is the father of Andy. None of the children’s fathers is a party to this appeal.