Filed 2/3/21 In re C.H. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re C.H., a Person Coming
Under the Juvenile Court
Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
A159444
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J1600879)
S.M.,
Objector and Appellant.
S.M. (mother) appeals a juvenile court judgment
terminating her parental rights to her son C.H. and choosing
adoption as the appropriate permanent plan. (Welf. & Inst.Code,
§ 366.26.)1 Mother challenges this order based on the beneficial
parent-child relationship exception to the adoption preference.
(§ 366.26, subd. (c)(1)(B)(i).) We affirm the judgment.
1 Further references are to the Welfare and Institutions
Code.
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I. BACKGROUND
In September 2016, mother (who was then 17 years old)
was in an abusive relationship with C.H., Sr., who at that time
was believed to be the father of her two-month-old son C.H.
Mother was a client of the Regional Center, due to a mild
intellectual disability that caused her to be easily influenced.
On September 19, 2016, mother took C.H. to the hospital
emergency room, where he was found to have two broken arms
and abdominal bruising. During subsequent genetic testing
(which was negative for brittle or easily broken bones) he was
found to have suffered four episodes of trauma. Mother
suspected C.H., Sr. of causing the injuries, but told inconsistent
stories about the events leading to C.H. being taken to the
hospital. Both mother and C.H., Sr. became suspects in an
investigation into the cause of C.H.’s injuries, but the police
declined to prosecute either of them for lack of sufficient
evidence.
C.H. was detained outside of mother’s custody and
respondent Contra Costa County Children and Family Services
Bureau (Bureau) filed a petition alleging that C.H. was a
dependent child of the juvenile court under several subdivisions
of section 300. On December 9, 2016, the court found C.H. had
suffered severe, non-accidental physical injuries under section
300, subdivision (a) while in mother’s care.2 At a dispositional
2A paternity test subsequently determined that C.H., Sr.
was not C.H.’s biological father. C.H., Sr. decided he did not
want to be included in C.H.’s life or in this case, and although he
2
hearing on February 3, 2017, he was declared a dependent child
and removed from mother’s custody. Mother was granted
monitored visitation and reunification services that required her
to undergo a parental competency assessment.
C.H. was placed in a foster home in which both foster
parents were nurses. He was diagnosed with post-traumatic
stress disorder (PTSD) and had several behavioral issues
(dissociative freezing stares, self-harm from scratching and
pulling hair, sleeping and eating disorders) as a result. These
behaviors greatly improved with the efforts of the foster parents.
The supervised visits went well overall, and the parties
agreed that mother loved C.H. Mother had participated in
parenting classes, CPR classes and support groups. But there
were concerns about her ability to keep C.H. safe if he were
returned, given the circumstances of his original injuries,
mother’s intellectual limitations, and the fact that mother’s close
family members (who would be in the picture if C.H. were
returned to mother) seemed to be in denial about the nature and
severity of C.H.’s injuries.
A six-month review hearing was held January 3, 2018, and
the court found that given the delay in finding someone to
perform the parental competency evaluation, reasonable services
had not been provided to mother. Mother’s supervised visitation
and reunification services were continued. The visits continued
was named in the petition, no findings were ultimately made as
to him.
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to go well, although C.H. generally took some time to warm up to
mother.
A parenting competency evaluation prepared by David
Brodzinsky, Ph.D., reported that mother was no longer in a
relationship with C.H., Sr., and had no intention of letting him
back into her life. Mother was “warm, loving and respectful”
during her visits with C.H., and although C.H. initially resisted
her attentions, he played with her and appeared to enjoy their
time together. Dr. Brodzinsky concluded, “[Mother] is an
emotionally vulnerable woman, with somewhat limited
intellectual functioning, but in my professional opinion, she is
competent to parent her son, with the caveat that a support
system be put into place that can provide her with the daily help
she will need to meet her son’s needs. . . . Without this type of
support, I am concerned that [mother]’s level of stress would
exceed her capacity to cope, putting her at risk for parenting
failure and [C.H.] at risk for inadequate care.” He recommended
that mother live with an adult approved by Bureau who could
provide emotional and practical help and guidance. He noted
that mother admitted needing help in rearing her son.
On July 20, 2018, the court held a combined 12-month and
18-month review hearing. By that time, mother was living at a
regional center independent living placement. The court set the
case for a 24-month review hearing after finding that mother had
made significant progress in resolving the problems that had led
to C.H.’s removal from her home and that it was substantially
probable he would be returned to her care if services were
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extended, provided that mother continue to reside in her regional
center placement.
A 24-month review hearing was held February 25, 2019, at
which time the court terminated reunification services and set
the matter for a permanency hearing under section 366.26. The
social worker’s report prepared for this hearing recognized that
mother was still living in her regional center placement and
received support largely in the form of transportation, visit
supervision, and parenting advice, and that “loosely supervised”
visitation had begun a few months earlier. A therapist was
providing weekly dyadic therapy where mother and C.H.
participated in therapy together, although mother refused to
participate in individual therapy. But mother could not safely
parent C.H. without full time support, and the level of
supervision at mother’s regional center placement did not provide
the amount of support and supervision necessary to ensure
mother would not put C.H. at risk as a full-time care provider.
A contested hearing under section 366.26 was held
December 11, 2019. The court denied a motion for modification
filed by mother under section 388 to obtain additional services
based on her having secured full-time employment at a senior
center as well as her continued personal growth. It then found
C.H. was adoptable (specifically adoptable to the caregivers if not
generally adoptable) and that no exception to adoption existed.
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C.H.’s foster parents, who had cared for him throughout the
dependency, were identified as the prospective adoptive parents.3
II. DISCUSSION
Mother argues that the judgment terminating her parental
rights to C.H. must be reversed because the quality of her
relationship with him would make it detrimental to sever their
relationship. We reject the claim.
At a hearing under section 366.26, the court may order one
of three alternative plans: adoption (necessitating the
termination of parental rights), guardianship, or long-term foster
care. (§ 366.26, subd. (b)(1)–(6).) If the child is adoptable, there
is a strong preference for adoption over the other alternatives.
(In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).) Once the
court determines the child is adoptable, a parent seeking a less
restrictive plan has the burden of showing that the termination of
parental rights would be detrimental under one of the exceptions
listed in section 366.26, subdivision (c)(1). (S.B., at p. 297; In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Section 366.26, subdivision (c)(1)(B)(i) provides for one such
exception when “[t]he parents have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.” The “benefit” necessary to trigger
3 Although the foster parents were lauded by the court and
counsel throughout most of this case for the excellent care and
attention they gave to C.H., there were two referrals regarding
other children in the home and the foster father initially failed to
complete diversion in a case that impeded the family’s approval
to adopt. These issues were resolved and are not before us on
appeal.
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this exception has been judicially construed to mean, “the
relationship 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 other words, the
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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.);
see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347
(Jasmine D.).)
Appellate courts are divided over the appropriate standard
of review to apply to this finding. Substantial evidence, abuse of
discretion or a combination of both have been employed. (In re
K.P. (2012) 203 Cal.App.4th 614, 621–622 (K.P.).) Both the
substantial evidence and abuse of discretion standards require
deference to the trial judge and the practical differences “are not
significant.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
We would reach the same result under either or both. (In re G.B.
(2014) 227 Cal.App.4th 1147, 1166, & fn. 7 (G.B.).)4
4The issue of which standard of review is appropriate is
currently pending in the California Supreme Court in In re
Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019,
S255839.
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The trial court did not err in determining that mother had
not carried her burden of proving the beneficial parental
relationship exception. The evidence did not suggest, much less
compel, a finding that C.H. would be greatly harmed by a
termination of mother’s rights. (Autumn H., supra, 27
Cal.App.4th at p. 575.) Except for the first two months of his life,
after C.H. was removed from her custody due to unexplained
severe physical injuries, mother was not his caregiver. Visits
with her were supervised for the duration of the dependency,
although they were “loosely” supervised at the end, and C.H.
needed time to “warm up” to mother during the visits. C.H. had
one true attachment, to his foster parents who had cared for him
for all but the first two months of his life (he was three and a half
years old by the time of the hearing under section 366.26).
“ ‘[B]ecause a section 366.26 hearing occurs only after the court
has repeatedly found the parent unable to meet the child’s needs,
it is only in an extraordinary case that preservation of the
parent’s rights will prevail over the Legislature's preference for
adoptive placement.’ ” (K.P., supra, 203 Cal.App.4th at p. 621.)
That C.H. appeared to enjoy his time with mother does not
require a different result. The beneficial parental relationship
exception requires more than a showing that the parent and child
have a friendly and loving relationship. (See In re Brian R.
(1991) 2 Cal.App.4th 904, 924; In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1418 (Beatrice M.).) “ ‘Interaction between [a]
natural parent and child will always confer some incidental
benefit to the child[,]’ ” but the beneficial relationship exception
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contemplates that the parents have “occupied a parental role.”
(Beatrice M., supra, 29 Cal.App.4th at p. 1419.) While mother’s
visits with C.H. were positive, her relationship with him cannot
reasonably be described as parental in nature.
As a young child with significant special needs, resulting in
large part from behaviors caused by PTSD, C.H.’s interest in
permanency and stability is particularly acute. He was in a
secure placement and was bonded with his caregivers and
prospective adoptive parents. The juvenile court could
reasonably conclude C.H.’s relationship to mother did not
outweigh that interest.
Mother suggests that a different result is required by S.B.,
supra, 164 Cal.App.4th at p. 299, because the parental
relationship exception does not turn on whether a child has a
“primary attachment” to the parent. In that case, in which the
court found there was no substantial evidence to support the trial
court’s ruling that the parental relationship exception did not
apply, the circumstances were considerably different. The father
had been the minor’s primary caretaker for three years. (Id. at p.
298.) She was removed from his custody due to his
methamphetamine use and placed with her grandmother, but the
visits with father went well and the minor exhibited a strong
attachment to him. (Id. at p. 293.) Under these circumstances,
the court noted that it was unnecessary for the minor to view
father as her “ ‘primary attachment’ ” for the beneficial parental
relationship exception to apply. (Id. at p. 299.)
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The same appellate court that decided S.B. subsequently
stated in another case: “The S.B. opinion must be viewed in light
of its particular facts. It does not, of course, stand for the
proposition that a termination order is subject to reversal
whenever there is ‘some measure of benefit’ in continued contact
between parent and child.” (In re Jason J. (2009) 175
Cal.App.4th 922, 937.) The same court reiterated the exceptional
nature of the S.B. decision in In re C.F. (2011) 193 Cal.App.4th
549, 559, stating: “[W]e once again emphasize that S.B. is
confined to its extraordinary facts. It does not support the
proposition a parent may establish the parent-child beneficial
relationship exception by merely showing the child derives some
measure of benefit from maintaining parental contact. . . .
[C]ontact between parent and child will always ‘confer some
incidental benefit to the child,’ but that is insufficient to meet the
standard.”
Like the trial court, we have no doubt that mother loved
C.H. and that their time together was beneficial to him. But that
does not mean it was so beneficial as to outweigh the benefits of
adoption, and it did not render mother’s relationship to C.H.
“parental.” The court did not err in determining that the
parental relationship exception did not apply,
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P.J.
SELIGMAN, J. *
In re C.H. / A159444
* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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