Filed 5/6/21 In re B.D. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re B.D., et al., Persons Coming
Under the Juvenile Court Law.
D078014
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ4324A, B)
Plaintiff and Respondent,
v.
C.D., et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Jill Suzanne Smith, under appointment by the Court of Appeal, for
Defendant and Appellant, C.D.
Roni Keller, under appointment by the Court of Appeal, for Defendant
and Appellant, R.Q.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
C.D. (Father) and R.Q. (Mother) appeal from the juvenile court’s orders
terminating parental rights to their son, B.D. (born 2012) and daughter L.D.
(born 2015, together the children). (Welf. & Inst. Code, § 366.26.)1 The
parents contend the juvenile court erred in finding that the beneficial
parental relationship exception to adoption did not apply because the
evidence demonstrated that terminating parental rights would be
detrimental to the children’s well-being. They assert that a legal
guardianship was the only appropriate permanent plan for the children. (§
366.26, subd. (c)(1)(B)(i).) We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (Agency)
became involved with this family in August 2018 after sheriff’s deputies
responded to a domestic violence incident where Mother pepper sprayed
Father and then Father chased Mother down the street. The following
month, the Agency received a report that Mother barricaded herself in a
bathroom during an argument and that Father broke the door down. B.D.
observed the parents hitting and yelling at each other and stated that Mother
was “very hurt” and that he and his sister were scared. The children also
observed a 2017 incident where Mother sustained bruising around her neck,
scratches, and lost her voice for two weeks after Father strangled her.
When the Agency investigated, the parents appeared to be on some
type of stimulant. The Agency found marijuana and drug paraphernalia in
the parents’ bedroom and within the children’s reach. The Agency also found
two bags of empty cans or bottles of alcohol in the bedroom. The parents
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
reported methamphetamine use and Father expressed concern that Mother
had an alcohol problem.
In August and September 2018, the Agency requested that Mother
drug test seven times, but she only tested twice. She tested positive for
methamphetamine, alcohol, and tetrahydrocannabinol (THC) for the first
test, and positive for alcohol and THC for the second test. The Agency
requested six drug tests for Father over a three month period. He tested
twice with both tests positive for THC.
In late October 2018, the Agency filed petitions on behalf of the
children under section 300, subdivision (b)(1), alleging that a substantial risk
existed that the children would suffer serious physical harm or illness based
on the parents’ physically violent relationship and use of dangerous drugs.2
The protective custody warrant affidavits indicated that the children “have
expressed feeling scared and crying while witnessing the domestic
altercations which is putting them at a high risk of suffering emotionally
with depression or anxiety in their future. The children have been observed
to show that they are being neglected with their lack of cleanliness, rotting
teeth, unchanged diaper at the age of 3.5, and expressing hunger.”
At the detention hearing, the juvenile court made a prima facie finding
on both petitions. The juvenile court detained the children and ordered
supervised visitation for the parents. At the contested adjudication and
disposition hearing in January 2019, the juvenile court sustained the
2 Mother has been involved with the Agency since 2004 regarding
allegations of domestic violence, neglect, and alcohol abuse. She has three
older children who are not parties to this appeal with another man. The
father of these children stated that he has full custody and that Mother
“hardly [saw]” these children. Mother received voluntary services in 2004
and again in 2010, but she failed to engage in the recommended services.
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petitions, declared the children dependents, placed them with the paternal
grandmother D.B. (the caretaker), and ordered reunification services.
In late August 2019, the juvenile court terminated reunification
services and set a section 366.26 hearing, which it later rescheduled three
times. At the contested section 366.26 hearing in September 2020, the
juvenile court found that the parents consistently visited the children, but
determined that they did not fulfill a parental role. The court terminated the
parents’ parental rights, selected adoption as the children’s permanent plan,
and designated their current caregiver as the prospective adoptive parent.
The parents timely appealed.
DISCUSSION
“At a section 366.26 hearing the juvenile court has three options: (1) to
terminate parental rights and order adoption as a long-term plan; (2) to
appoint a legal guardian for the dependent child; or (3) to order the child be
placed in long-term foster care. [Citation.] Adoption is the preferred plan
and, absent an enumerated exception, the juvenile court is required to select
adoption as the permanent plan. [Citation.] The burden falls to the parent to
show that the termination of parental rights would be detrimental to the
child under one of the exceptions.” (In re Fernando M. (2006) 138
Cal.App.4th 529, 534.) “Because 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.” (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
One of the exceptions to the preference for adoption is the beneficial
parent-child relationship exception. The exception provides that the court
shall terminate parental rights unless “[t]he court finds a compelling reason
4
for determining that termination would be detrimental to the child” where
“[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).) The existence of this relationship is determined by taking
into consideration “the 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.” (In re Autumn H. (1994)
27 Cal.App.4th 567, 576.)
The parent must not only demonstrate the positive aspects of the
relationship, but “must show the child would suffer detriment if his or her
relationship with the parent were terminated.” (In re C.F. (2011) 193
Cal.App.4th 549, 555.) For the exception to apply, severing of the
relationship must “ ‘deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed.’ ” (In re Marcelo B.
(2012) 209 Cal.App.4th 635, 643 (Marcelo B.).) “ ‘A biological parent who has
failed to reunify with an adoptable child may not derail an adoption merely
by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.’ ”
(Ibid.)
“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. (2015) 239 Cal.App.4th 389, 395.)3
3 The question of what standard of appellate review applies to the
beneficial parent-child relationship exception is currently pending before our
Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted
July 24, 2019, S255839.)
5
Here, the juvenile court found that the parents “easily met” their
burden of showing consistent visitation with the children. After
acknowledging the need for a “robust individualized inquiry” the juvenile
court determined that the parents’ relationship with the children did not rise
to the level of a parental role. The court found the parents’ substance abuse,
and the impact this had on their ability to safely parent their children, to be
their “core issue.” The court stated that despite the parents’ progress with
online services and their loving visits with the children, that the parents’
remained untreated for substance abuse. The court explained:
“Until these parents address this major underlying cause of
all . . . the instability and disruption and chaos in their
lives, substance abuse, they will never be able to safely and
reliable parent. They had two years to address these issues
in this case and unfortunately have chosen not to.”
Even assuming the parents met their burden of showing a parental
relationship, the juvenile court found that they did not meet their burden of
proving that severance of that relationship would be detrimental to such a
degree that termination of parental rights and a permanent plan of adoption
would be detrimental to the children. The court first noted that the caretaker
has consistently said that she supports the parents having a relationship
with the children as long as the relationship was “healthy” and that the
caretaker has facilitated and encouraged visits between the parents and the
children. Nevertheless, the court considered the possibility that termination
of parental rights could sever the children’s relationship with their parents,
but found this would not be detrimental to the children such that the
detriment outweighed the benefits of adoption.
6
The parents contend that the parent-child relationship exception
applies because they consistently visited with the children, the children
would be sad if they knew they would not be able to see the parents again,
and terminating parental rights would be detrimental to the children’s well-
being. It is undisputed that the parents consistently visited the children,
satisfying the first prong of the exception. Assuming the parents undertook a
parental role during supervised visits with the children, they failed to
identify any evidence which would compel a finding that termination of their
parental rights would cause the children great harm.
By the time of the section 366.26 hearing on September 29, 2020, B.D.
was seven years old and L.D. was five years old and they had spent
approximately 23 months out of the parents’ care and custody. Due to the
parents’ inconsistent participation and failure to progress with their case
plans, the court terminated reunification services approximately 12 months
after the children’s removal. The social worker testified that the parents and
children had a “friendly” and “loving” relationship, that the children looked
forward to visits, and displayed affection toward the parents. The social
worker expressed concerns, however, whether the parents could “safely
parent and care” for the children. On this point, the juvenile court found that
until the parents addressed their substance abuse they would “never be able
to safely and reliable parent” their children.
Parental substance abuse is presumptively detrimental to the safety,
protection and physical and emotional well-being of the child. (§ 300.2 [“The
provision of a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and physical and
emotional well-being of the child.”].) The record supports the juvenile court’s
finding that the parents’ untreated substance abuse impacted the “beneficial”
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nature of the relationship. A 2010 referral pertaining to Mother’s three older
children described Mother as an alcoholic. During the initial investigation
for the instant matter, the caretaker reported that Mother got “ ‘drunk every
single night’ ” and “always drive[s]” the children while intoxicated. A
substance abuse specialist who evaluated Mother expressed the belief that
Mother required substance abuse treatment, but Mother denied having a
substance abuse problem and was unwilling to obtain treatment. When
asked about Mother’s alcohol use B.D stated that “ ‘Mom drinks a lot and
mom was so full of alcohol she was talking so, so bad like she was going to
die.’ ”
The social worker submitted drug test referrals for Mother in February,
March, April, May and June 2019, but she failed to show to every
appointment. During a July 26, 2019 office visit, Mother claimed “her clean
date was ‘sometime in [2018].’ ” Mother expressed confidence that she would
test “clean” that day, but did not respond when asked why she had not drug
tested in the last six months. Although Mother appeared for an intake
appointment for substance abuse treatment, she never returned to the
program.
Father admitted that he started using marijuana at age 13, currently
used marijuana once or twice a day, and “occasionally” drank alcohol. He
denied current methamphetamine use, but admitted “having a problem” with
the drug in the past. Mother stated, however, that Father used
methamphetamine and took “baking soda to pass his tests.” Although Father
did not believe he needed substance abuse treatment, Father failed to
demonstrate his sobriety by drug testing. He failed to drug test three times
in November and December 2018. The social worker submitted drug test
referrals for Father in February, March, April, May and June 2019, but he
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failed to show to every appointment. When the social worker informed
Father that he only needed to drug test twice to satisfy his case plan
objective, Father denied receiving the social worker’s calls and text messages
regarding testing.
On August 20, 2019, the social worker left Father a voice message
advising him that he needed to submit to a random drug test, but Father did
not appear for this drug test, which the Agency considered to be a positive
test. Two days later, the social worker advised the parents that they needed
to drug test that day, which they agreed to do. However, one hour later, the
social worker received a voicemail from Mother stating that she and Father
would not drug test because it conflicted with their services. “[T]he juvenile
court could reasonably conclude that common sense suggests a parent who
consistently fails to appear for drug tests does so because of a consciousness
of guilt.” (In re Noah G. (2016) 247 Cal.App.4th 1292, 1304 (Noah G.).)
While the parents had a loving bond with their children, the juvenile
court properly noted that their untreated substance abuse impacted the
“beneficial” nature of the relationship by threatening the depth and stability
of the parental relationship. (Noah G., supra, 247 Cal.App.4th at p. 1302 [in
considering the parent-child relationship exception “the juvenile court could
properly focus on the mother’s unresolved substance addiction issues because
the children became dependents of the court due to her drug abuse”].)
Mother has been involved with the Agency since 2004 and has had 15
referrals most of which involved allegations regarding domestic violence,
neglect, and alcohol abuse. The Agency noted that Mother “has consistently
shown . . . that her alcohol abuse affects her ability to care for her children by
not meeting their basic and medical needs.” Likewise, Father has used
marijuana for over 22 years and admitted using the drug once or twice a day.
9
The juvenile court described the parents’ untreated substance abuse as
the “elephant in the room.” Although the parents had almost two years to
address this issue, they failed to do so. Meanwhile, the children’s caretaker
has provided the children with a stable and loving home. As the court-
appointed special advocate noted in her January 2020 report:
“The [children’s caretaker] is interactive and talks a lot to
the children. She is strict with them but they seem to
respect her most of the time. . . . Both [L.D. and B.D.] are
very independent and self-sufficient children, but they will
seek out their [caretaker] for food, permission, and
sometimes comfort. During this reporting period, both
children have become comfortable in their home, and
appear to be flourishing with the structure and consistency
that the [caretaker] provides. While things in the home
have not always been smooth, the [caretaker] appears
dedicated to ensuring the children are safe, well cared for,
and loved. According to the [caretaker], she is very
interested in adopting [the children] if reunification is not
successful, and she has spoken to the resource HHSA social
worker about the process.”
B.D. understood that adoption meant that his caretaker would be his
mom and that he and his sister would stay with the caretaker. When asked
how he felt about being adopted Brandon stated, “I would want to live with
my [caretaker] because my parents can’t take care of us.” B.D. indicated that
“nothing” would make him feel happy or safe enough to return to Mother.
L.D. loved her parents and wanted to live with them and her caretaker. L.D.,
10
however, expressed concern that if returned to her parents “we don’t do
anything. They don’t take us to school, the pool or camping. All we do is
watch them fight and that makes me scared.”
Although the evidence revealed the existence of a bond between the
parents and the children, the parents’ unresolved substance abuse issues
support the juvenile court’s conclusion that, on balance, the benefit of
permanency through adoption outweighed any benefit the children might
derive from continuing the parent-child relationship. (In re K.P. (2012) 203
Cal.App.4th 614, 622-623 [“While the weekly two-hour visits with K.P. and
his mother may have been pleasant for both parties, there was no evidence in
the record (beyond [mother’s] stated belief) that termination of the parent-
child relationship would be detrimental to K.P. or that the relationship
conferred benefits to K.P. more significant than the permanency and stability
offered by adoption”]; Marcelo B., supra, 209 Cal.App.4th at p. 644 [“The
parents demonstrated that they have a warm and affectionate relationship
with their son. Because they continue to abuse alcohol[,] . . . however, they
have not demonstrated an ability to provide Marcelo, over the long term, with
a stable, safe and loving home environment.”]; In re Jasmine D., supra, 78
Cal.App.4th at pp. 1351-1352 [beneficial parent exception did not apply
despite mother’s “successful visitation record” because mother “made no steps
toward overcoming the problems leading to [her child’s] dependency”].)
The parents contend that the juvenile court erred by choosing adoption
as the permanent plan because a legal guardianship would have provided
permanency for the children while maintaining the significant relationship
the children shared with them. “The Legislature has thus determined that,
where possible, adoption is the first choice. ‘Adoption is the Legislature’s
first choice because it gives the child the best chance at [a full] emotional
11
commitment from a responsible caretaker.’ [Citation.] ‘Guardianship, while
a more stable placement than foster care, is not irrevocable and thus falls
short of the secure and permanent future the Legislature had in mind for the
dependent child.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Given this
preference, there must be a compelling reason to choose a permanent plan
other than adoption. One was not present here.4
Finally, Mother stresses that socio-economic considerations are not
legislatively or otherwise properly a part of a consideration regarding
application of the parent-child relationship exception. As another court
stated “indigency, by itself, does not make one an unfit parent and ‘judges
[and] social workers . . . have an obligation to guard against the influence of
class and life style biases.’ ” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212.)
While we agree with this statement, we disagree that socio-economic
considerations factored into the juvenile court’s decision. Nothing in the
record suggests that the juvenile court considered the relative socio-economic
positions of the parents and the children’s caretaker in arriving at its
decision.
4 Father’s reliance on In re Scott B. (2010) 188 Cal.App.4th 452 to
support his argument that the court should have ordered a legal
guardianship is misplaced. This case involved an 11-year-old boy diagnosed
with autism. (Id. at pp. 455, 471.) Because of the child’s special needs, his
“emotional state” was “precarious.” (Id. at p. 472.) He also had a “history of
regressing and running away when he [was] stressed. . . .” (Ibid.) Given
those facts, and evidence that the boy and his mother had “a very close
relationship,” the Court of Appeal concluded that termination of mother’s
parental rights would be detrimental to the minor. (Id. at p. 471.) In the
court’s view, “[t]he only way to avoid [a] serious emotional and developmental
setback” was to ensure continued visitation with mother. (Id. at p. 472.) By
contrast, here there is no evidence that termination of parental rights will
cause serious emotional and developmental problems for the children.
12
We therefore affirm the juvenile court’s orders as we find no evidence of
extraordinary circumstances requiring application of the parent-child
relationship exception to the termination of the parents’ parental rights.
DISPOSITION
The orders are affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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