Filed 7/29/21 In re W.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re W.G. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E076398
Plaintiff and Respondent, (Super.Ct.Nos. J279105 &
J279106)
v.
OPINION
S.G. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and
Appellant S.G.
Jacques Alexander Love, under appointment by the Court of Appeal, for
Defendant and Appellant J.C.
1
Michelle D. Blakemore, County Counsel, Jodi L. Doucette, Deputy County
Counsel for Plaintiff and Respondent.
J.C. (Mother) and S.G. (Father; collectively, Parents) are the parents of A.G.
(female, born 2013) and W.G. (male, born 2015; collectively, the children). Parents
appeal from the termination of their parental rights as to the children by the juvenile court
at a Welfare and Institutions Code1 section 366.26 hearing. For the reasons set forth post,
we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prior to this appeal, this dependency case has involved one writ and one appeal. In
the writ, case No. E073331, Mother’s counsel filed a no issue letter, and we dismissed the
writ petition on September 26, 2019. In the appeal, case No. E074791, we upheld the
juvenile court’s ruling. We ordered the record prepared for Case Nos. E073331 and
E074791 to be incorporated into the record in this case.
A. THE FACTUAL AND PROCEDURAL HISTORY FROM
UNPUBLISHED OPINION IN CASE NO. E074791
“On December 13, 2018, Mother went to work and left W.G. in the care of her
boyfriend, F.A. [(Boyfriend)]. Mother and Boyfriend had been together for five months.
The other child, A.G., was in school. Boyfriend called Mother and told her he found
W.G. burned in the bathtub. Boyfriend stated that ‘it was an accident; I didn’t do it on
purpose.’ Boyfriend sent Mother pictures of W.G.’s burn. Mother told Boyfriend to take
1 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2
W.G. to the hospital but he convinced her it was not a good idea because she would get
her children taken away and he would go to jail. Mother did not leave work, she
continued working. When she came home from work, she again told Boyfriend they
should take W.G. to the hospital. Again, Boyfriend convinced her not to seek medical
care for W.G. Mother was concerned about losing Boyfriend; he paid her car payment.
The next day, Boyfriend admitted pouring a cup of boiling water on W.G. Then, when
W.G. cried, Boyfriend poured more boiling water and called W.G. a ‘crybaby.’
“Mother informed Father about the incident the following day. Father cared for
the children every weekend. Father asked Mother to keep W.G. away from Boyfriend
but did not ask that W.G. be taken to the hospital. Three days later, Father saw W.G.
Father became tearful because of the pain W.G. endured, but did not take W.G. to the
hospital or ask Mother to take him. Father did not contact law enforcement.
“On December 18, 2018, W.G. continued to be fussy and in pain. He still was not
eating. Mother went to get her hair done and asked the maternal grandmother (MGM) to
watch W.G. MGM did not take W.G. to the doctor. When Mother showed her hairstylist
pictures of W.G., the hairstylist called [San Bernardino County Children And Family
Services (CFS)] about the incident. When Mother returned from her hair appointment,
she took W.G. to St. Mary’s Hospital because a scab on W.G.’s penis reopened and
started to bleed. Dr. Vikram Raj, the treating physician, determined the injuries to W.G.
were nonaccidental, and reported the incident. W.G. was transported to Arrowhead
Regional Center’s Burn Unit. The right side of his face was burned, and he had cigarette
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burns on his body and face; he had surgery for skin grafts.” (W.G. v. J.C. (Aug. 24,
2020) 2020 Cal.App.Unpub. LEXIS 5434, *1-3.)
“On December 18, 2018, the children were removed from the care of parents
pursuant to a detention affidavit. A.G. was placed with a maternal granduncle (foster
father) and grandaunt (foster mother; collectively, foster parents). The plan was for W.G.
to be placed in the same home once he was discharged from the medical burn clinic. The
foster mother worked for CFS as a supervisor in the Barstow division.
“On December 21, 2018, CFS filed section 300 petitions for serious physical
harm, and failure to protect or seek medical care. As to W.G., the petition was filed
under section 300, subdivision (a)(1), (b)(2), (b)(3), (b)(4), (e)(5), (e)(6), (g)(7), and
(i)(8). As to A.G., the petition was filed under section 300, subdivision (g)(1), (j)(2), and
(j)(3). The petitions alleged that W.G. was physically abused because 23 percent of his
body was covered in burns, which included cigarette burns, and neither parent obtained
proper medical care for him. The children, therefore, were at risk of harm.
“On December 24, 2018, at the detention hearing, the juvenile court read and
considered CFS’s detention report and its attachments. The court then found that there
were no other reasonable means to protect the children without court intervention and
detention out of the home of the parents. Parents were awarded supervised visitation
once per week for two hours with the children. Preplacement services were also offered
to parents. Parents were advised that reunification services may be denied because of the
seriousness of the allegations. The court set a jurisdiction and disposition hearing for
January 11, 2019.” (W.G. v. J.C., supra, 2020 Cal.App.Unpub. LEXIS 5434, *3-4.)
4
“On January 19, 2019, CFS filed its first amended section 300 petitions.
“In the jurisdiction and disposition report dated January 11, 2019, CFS
recommended finding the allegations in the petitions as true, denying family reunification
services due to the severity of the injuries and the parents failing to seek timely and
necessary medical care, and placing the children with the foster parents permanently.
“In the report, the social worker reported that W.G. was interviewed at the
Children’s Assessment Center (CAC) by the social worker and law enforcement. The
social worker asked W.G. about the burn scar on his face. Initially, W.G. shut down; he
put his head down, was sad, and had tears in his eyes. He asked for his foster father.
W.G. then stated that he had other “owies” on his private part and pointed to it, and on
his back. He stated that Boyfriend caused the injuries, and that he cried when Boyfriend
poured hot water on his body. W.G. stated he told Mother.
“According to A.G., while she was at school, Boyfriend gave W.G. the ‘owies.’
She denied that Boyfriend abused her to the social worker. A.G., however, told law
enforcement that Boyfriend ‘smacked my butt.’ She also stated that Mother hit her.
“Mother stated that on December 13, 2018, Boyfriend called her at work and was
hysterical, claiming that the injuries to W.G. were an accident. She video-chatted with
Boyfriend and saw the burns but stayed at work. Mother claimed that she told Boyfriend
to give W.G. some medication and to take him to the hospital. Boyfriend talked Mother
out of seeking medical care because he would get in trouble and Mother would have the
kids taken away. She did not take W.G. to the hospital when she got home.
5
“The next day, Boyfriend admitted that he had poured hot water on W.G. in the
bath and W.G. started to cry. Boyfriend then poured more water on W.G. because
Boyfriend thought W.G. did not like baths.
“On December 15, 2018, MGM saw the burns and inquired about them. Mother
stated that she was not taking W.G. to the hospital because she feared the arrest of
Boyfriend and the loss of her children. The next day, Mother sent the maternal aunt a
picture of W.G.’s burns. Mother also video-chatted with her sister; the sister told Mother
to take W.G. to the doctor. Mother did not.
“On December 17, 2018, Father saw the burns on W.G. Although Father was
angry at Boyfriend and cried, Father did not take W.G. to seek medical care. He also did
not tell Mother to take W.G. to a medical professional.
“The next day, the scab on W.G.’s penis opened and began to bleed. Mother left
W.G. with MGM and then went to get her hair done.
“The social worker noted that Mother admitted she and Boyfriend had been
together for five months. During the first month of their relationship, Boyfriend punched
the wall during an argument and made a hole in the wall. Mother stated that Boyfriend
was diagnosed as bipolar and had depression. Mother had a history of domestic violence
in a prior relationship where her ex-boyfriend was arrested. As a result of the current
events, Mother was booked in jail and had a pending willful child endangerment charge
for most of the CFS case.
“On January 4, 2019, the social worker interviewed Father. Father admitted that
he did not seek medical care for W.G. even after Father saw the injuries and was shocked
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when he saw W.G.’s burns. When Father took A.G. to school, he dressed W.G. for the
car ride. Father admitted that W.G.’s pants were sticking to his skin because of the burns.
Father stated that he did not tell any family members about what happened because he
feared that they would lose the kids. Father had previously asked W.G. about Boyfriend.
W.G. stated that he was afraid of Boyfriend and would cry. W.G. asked Father not to
return him to Mother after staying with Father for the weekend.
“CFS recommended reunification services be denied. The social worker requested
a section 366.26 hearing be scheduled, and an adoption assessment be prepared.
“The jurisdiction and disposition hearing was continued until February 28, 2019
because the CAC forensic medical exam report and police report had not been completed.
The CAC report was not completed because W.G. was still in the hospital.
“On February 28, 2019, the social worker provided an updated report that included
400 pages of medical documents. Mother had been attending counseling but the report
from the counselor lacked information related to the reason for custody. Moreover,
although CFS received W.G.’s medical reports, the police report and the forensic report
were not completed yet. Therefore, the hearing was continued for April 11, 2019.
“At the hearing on April 11, 2019, CFS submitted an updated report. In the report,
the social worker stated that W.G. had surgery for undescended testicles and one testicle
had to be removed. The parents were still in counseling, but the CAC had not yet
completed a forensic medical exam and the police report had not been submitted. The
hearing was continued until May 11, 2019.
7
“On May 8, 2019, Dr. Siccama completed the CAC forensic medical exam. The
police report, however, was still not submitted. In the CAC report, Dr. Siccama noted
that W.G.’s wounds were from being ‘held in place,’ consistent with the boyfriend’s
statement that he poured scalding water on W.G. ‘until he noticed his skin began to come
off’ and thought he was defecating in the tub. Dr. Siccama determined that W.G. was in
serious pain and that Mother and Father prolonged the child’s pain by failing to get him
medical care. Dr. Siccama also determined that W.G. had ‘widespread scarring’ with
life-long effects. W.G. also had cigarette burns at different stages of healing. The doctor
noted that W.G. presented at the hospital with hyponatremia and hypokalemia due to
fluid loss from delayed care for the burns.
“When CAC interviewed W.G., he appeared happy and playful. However, when
W.G. was questioned about his injuries, he became extremely upset, emotional and
tearful. He asked for his foster father. W.G. did not ask for Mother or Father.
“Because the police report had not been filed, the hearing was continued to June
12, 2019.
“CFS filed its addendum report dated June 12, 2019, which included the police
report. Mother told the detective that on the day of the incident, right after she arrived at
her work, Boyfriend called her over 16 times and texted her 13 times within a half a hour.
Boyfriend was watching W.G. at this time. Boyfriend cussed and swore at her and
became increasingly abusive and angry because Mother was not answering her phone.
Boyfriend believed that she was too busy talking to other men to answer his calls.
8
Boyfriend’s fury escalated. He threatened to leave Mother, and to leave W.G. at home
alone. During this time, Boyfriend burned W.G.
“Mother told the detective that Boyfriend had been emotionally abusive to W.G.—
calling him a ‘crybaby,’ ‘pussy,’ ‘fag,” and ‘gay.’ Mother admitted that Boyfriend had a
history of domestic violence in their home and punched a hole in the wall of their
bedroom. Mother was aware of Boyfriend’s anger issues and that W.G. was afraid of
Boyfriend. She, however, continued her relationship with him and took no action.
“Regarding the incident, Mother told MGM that she and Boyfriend ‘agreed on
everything,’ and both agreed not to take W.G. to the hospital. In a text, Mother stated
that she did not want to call the cops on Boyfriend ‘as what’s that gonna do besides put
me in more debt because he is taking over the Nissan payment.’ Mother recalled seeing a
suspicious bruise on W.G.’s ears and knew that he was afraid of Boyfriend. Moreover,
Mother admitted that she knew that Boyfriend lost custody of three of his children.
“A search of Boyfriend’s phone via a search warrant revealed an image of a
juvenile with his pants down on October 25, 2018; Boyfriend lived with Mother and her
children during this time. The juvenile’s bottom was red, swollen and injured. The
juvenile resembled W.G.
“A.G. described the boyfriend hitting Mother and Mother crying. A.G. also stated
that Mother left A.G. and W.G. alone at home when Mother went to the store.
“Mother and Boyfriend were charged with willful cruelty to a child, a felony.
They were arrested and taken into custody.
9
“In the updated report, CFS noted that Mother attended counseling and parenting
classes since January 23, 2019. The children were doing well in their foster home.
“The hearing was continued to June 19, 2019, to take testimony and to obtain the
psychological evaluation of Father.
“At the hearing on June 19, 2019, the juvenile court read and considered the social
worker’s addendum report and other CFS reports, the police report, the CAC report, the
psychological evaluation of Father, and the other attachments.
“Mother conceded the amended petition’s section 300, subdivision (a) allegation.
She, however, denied having prior knowledge of Boyfriend’s propensity to harm her
child, the section 300, subdivision (b) allegation. Mother also denied the section 300,
subdivision (c) allegation. She claimed that she had been working on services. Mother’s
counsel admitted that the section 300, subdivision (i) injuries were serious, but denied
that Mother had knowledge about the cigarette burns before detention. Counsel also
argued that Mother’s cooperation with law enforcement should be considered.
“The juvenile court found all the jurisdictional allegations as true in the amended
petition. Specifically, the juvenile court stated that the “failure to seek medical attention
on its own is enough evidence, frankly, beyond a reasonable doubt.” The court also
noted the detention report’s description of the “social worker’s contact with W.G. and
how obvious it was to her that he was in extreme pain and kind of gasping because of the
pain, and that’s after the child was seen by medical professionals.” The court stated: “I
can only imagine what he was like before that, and for five to six days and at least a
couple of days when dad was aware of it. His reaction to those injuries, that he was
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crying when he saw [W.G.], demonstrates that he knew just how horrible his son was
injured—how horribly his son was injured and that he was in extreme pain. [¶] The
mother let that go on for far too long, and in fact went to get her hair done instead of
worrying about the fact that her child was in this pain.”
“Later in the day, the disposition hearing continued with testimony from the
psychological evaluator, Dr. Kinsman, as to Father. The hearing was continued to July
24, 2019, to obtain a psychological examination of Mother in addition to other testimony.
“At the July 24, 2019 disposition hearing, the parties stipulated to Dr. Kinsman’s
psychological report of Mother being admitted into evidence. Although Dr. Kinsman
was present and ready to testify, no testimony was requested by the parties. Mother did
not testify. No additional evidence was admitted.
“Mother’s psychological exam noted that Mother had generalized anxiety
disorder, and apparent ‘Narcissistic and Antisocial Personality features.’ Dr. Kinsman
stated that Mother was narcissistic, immature, manipulative, and impulsive; oriented
toward self-gratification; inclined to take risks; and made ‘efforts to conceal mistakes and
to appear more competent than she feels.’ As to Mother’s ability to self-report, Dr.
Kinsman wrote: ‘The mother exhibits rigidity and inflexibility in her approach to
problems and may not be open to psychological self-evaluation. She’s likely to project
an exceptionally positive self-image and is intolerant of other’s feelings.’
“In the report, Dr. Kinsman determined that Mother’s ‘children’s welfare and
safety have not been her paramount consideration.’ He stated that providing services to
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Mother for a minimum of one year would be necessary to prevent the re-abuse of the
children.
“The juvenile court, after reading and considering the psychological reports of
both parents, the social worker’s report of July 24, 2019, other CFS reports, the police
reports, and the CAC opinion and attachments, declared the children dependents of the
court. The court found that the children’s out-of-custody placement was necessary to
protect harm, that the parents’ efforts have been insufficient to mitigate the reasons for
removal, that reunification services are to be denied under section 361.5, subdivision
(b)(5) and (b)(6), and a permanent placement hearing under section 366.26 should be set
to consider the termination of parental rights. The court stated that the “likelihood of the
children being returned safely within 12 months with no continuing supervision is zero.”
The court then denied reunification services to both parents. The court stated that
Mother’s failure to provide for the medical care of W.G. was due to her own selfish
reasons. The court reduced visits to twice per month, supervised. The court then set a
section 366.26 hearing for November 20, 2019.
“On August 2, 2019, Mother and Father filed writs to challenge the setting of a
section 366.26 hearing. Mother filed a no-issue writ statement. On September 26, 2019,
we dismissed the writ. Mother also filed a Notice of Appeal on August 2, 2019.
“On September 25, 2019, the educational rights of the children were transferred to
the foster parents.
“Prior to the section 366.26 hearing scheduled for November 20, 2019, CFS
recommended that parents’ rights be terminated, and a permanent plan of adoption be
12
implemented. The children were doing extremely well and had made ‘huge’
improvements in their placement with the foster/prospective adoptive parents—their
great maternal uncle and aunt. W.G. was still in burn garments and had to have his left
testicle removed. He had nightmares and cried in his sleep, requiring a lot of rocking and
consoling. W.G.’s temper tantrums reduced. A.G. continued with speech therapy and
counseling. Like W.G., A.G.’s temper tantrums reduced. Moreover, A.G.’s
‘parentification’ of W.G. improved. When A.G. was asked about how A.G. felt about
staying with her foster parents until she was grown, she jumped up and down with
excitement and stated, ‘I want to stay here.’ The children sought out their foster parents
for comfort, nurturing, and any other needs.
“Mother continued to visit the children, twice per month. There were issues
regarding structure, routine and supervision. The foster parents arranged for contact with
the children and the other relatives at soccer games, birthday parties, and other family
activities, as long as the children were supervised.
“Pursuant to further noticing issues with the Indian Child Welfare Act, the section
366.26 hearing was continued to January 29, 2020. On January 29, 2020, the hearing was
continued to April 14, 2020.
“In the interim, on January 28, 2020, Mother filed a section 388 petition
requesting that (1) reunification services be provided for six months for Mother; and
(2) other relatives be assessed as prospective adoptive parents. In support of her section
388 petition, mother attached five exhibits which included: (1) completion certificates for
parenting classes; (2) a letter from Mother’s counselor dated November 13, 2019, stating
13
that Mother had completed 16 sessions and parenting classes—information that had been
provided prior to the June 19, 2019, hearing; (3) a psychological evaluation by Dr.
Kinsman that was submitted and considered by the court at the July 24, 2019, disposition
hearing; (4) criminal court notes indicating that Mother pled guilty to willful cruelty to a
child violation and she received work release; and (5) photographs of Mother with the
children.
“On January 29, 2020, the court summarily denied the section 388 petition, stating
that the proposed change of order did not promote the best interest of the children. On
February 21, 2020, Mother filed a timely notice of appeal from the summary denial of her
petition.” (W.G. v. J.C., supra, 2020 Cal.App.Unpub. LEXIS 5434, *4-17.)
B. PERMANENT PLAN HEARING
After we issued our opinion in case No. E074791, and after numerous
continuances of the section 366.26 hearing due in part to Covid-19, the juvenile court
held a contested section 366.26 hearing on January 5, 2021.
During this period wherein the section 366.26 hearing was continued numerous
times, Mother missed events important to the children, such as birthday parties—even
when the children requested she attend—because she wanted her visitation time to be just
the three of them. Mother did not go to the children’s medical appointments. Visits
remained regular and consistent. The foster parents stated that Parents still had difficulty
parenting and allowed the children to take the lead. Father visited the children
consistently and appropriately. Father, unlike Mother, would forego his individual
14
visitation with the children to attend sporting events and birthday parties because the
children wanted him at the events.
During this time, another man came forward, after being contacted by Mother,
about being the father of W.G. His paternity test came back positive for being W.G.’s
biological father. He never had contact with W.G. and is not a party to this appeal.
In the interim, the children were thriving in their placement; they wanted to stay
with the foster parents and be adopted by them. The children felt loved, protected, and
cared for. The foster parents wanted to adopt the children. The children’s
therapeutic/emotional, dental, and medical needs were being addressed. The educational
rights were transferred to the foster parents for both children.
At the section 366.26 hearing, both Mother and Father testified that A.G. was five
years old and W.G. was three when they were detained on December 2018. Mother had
taken care of the children since giving birth to them. Both children had a “really good”
relationship with her and showed her affection with lots of hugs and kisses while she was
raising them. After they were detained, the visits were in-person until Covid-19
restrictions were imposed. They then visited virtually. Near the middle of 2020, the
visits were in-person again. The visits reverted back to virtual visits in December 2020
due to new Covid-19 restrictions.
When the visits were in person, they occurred at the foster parents’ home. Mother
could tell both children still had a positive bond with her through their expressions of
love toward her. They still referred to Mother as “mom.” At the end of visits, W.G.
would throw tantrums, cry, and say that he wanted to stay with Mother. A.G. did not cry
15
as often at the end of visits but stated that she wanted Mother to stay. Mother had not
been allowed to attend the children’s medical appointments or participate in their nightly
routine.
Father testified that prior to the children’s removal, he spent about four days a
week with them. After the children’s removal, Father visited the children twice a month
for two hours. He never missed a single visit. The children called him “daddy,” and
during the visits, they played together. Father also testified that at the end of the visits,
W.G. followed Father to his car. Both the children told Father they love him and cried at
the end of visits. Father was an active participant in the children’s schooling and he
would help them with their homework. A.G.’s school was across the street from Father’s
house. He attended their medical appointments, but was not allowed to attend the
appointments after the children’s removal.
After the children were removed from Father, he still attended the children’s
sporting events on the weekends. The last in-person visit he had with the children was in
December 2020. He also spoke with the children on Christmas and the children told
Father about their presents.
At the conclusion of the hearing, the juvenile court found the children adoptable.
Moreover, the court found that although Parents met the first prong of the beneficial
parental bond exception, it was foster parents who had provided day-to-day parenting to
the children. The court further noted that Parents had not advanced to unsupervised
visitation. Therefore, Parents failed to meet their burden that severing their relationship
with the children would be so significant to outweigh the benefits the children would
16
derive from adoption. Thereafter, the court terminated the parental rights of both Mother
and Father and set adoption as the permanent plan.
On January 8, 2021, Father filed a timely notice of appeal. Father filed this notice
in the San Bernardino Superior Court. Father’s notice of appeal was received by this
court on January 12, 2021. On January 28, 2021, Mother filed a timely notice of appeal.
DISCUSSION
A. THE JUVENILE COURT PROPERLY FOUND THE PARENTAL
EXCEPTION DID NOT APPLY
Both Mother and Father contend that the juvenile court erred in terminating their
parental rights because the parental bond exception to the termination of parental rights
applied.
This “may be the most unsuccessfully litigated issue in the history of law.” (In re
Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re
Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case
(e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
1. LEGAL BACKGROUND
In general, at a section 366.26 hearing, if the juvenile court finds that a child is
adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) “To ease
the court’s difficult task in making this important decision, [section 366.26] provides a
carefully calibrated process. Even if a court finds by clear and convincing evidence that
the child is likely to be adopted, the parent may avoid termination of parental rights by
establishing at least one of a series of enumerated exceptions.” In re Caden C. (2021) 11
17
Cal.5th 614, 625 (Caden C.); see section 366.26, subdivisions (c)(1)(A) and (c)(1)(B)(i)
through (vi).) One of the exceptions is the beneficial parental relationship exception; it
applies when “termination would be detrimental to the child” because “[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).)
Recently, in Caden C., the California Supreme Court explained that from section
366.26, subdivision (c)(1)(B)(i), “we readily discern three elements the parent must prove
to establish the exception: (1) regular visitation and contact, and (2) a relationship, the
continuation of which would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (Caden C., supra, 11 Cal. 5th at p. 631.) The
Supreme Court then went on to note that “[i]n understanding these elements, we are
guided by what has become the seminal decision interpreting the exception, the Fourth
District Court of Appeal’s opinion in In re Autumn H. (1994) 27 Cal.App.4th 567
(Autumn H.). . . . What the appellate court emphasized in Autumn H. is a crucial aspect
of the trial court’s responsibility in these cases: in assessing whether termination would
be detrimental, the trial court must decide whether the harm from severing the child’s
relationship with the parent outweighs the benefit to the child of placement in a new
adoptive home. [Citation.] By making this decision, the trial court determines whether
terminating parental rights serves the child’s best interests.” (Id. at pp. 632-633.)
The Supreme Court recognized that “[s]ubsequent to Autumn H., the Legislature
amended the statute to require a parent to show a ‘compelling reason for determining that
termination would be detrimental to the child . . . .’ (Welf. & Inst. Code, § 366.26, subd.
18
(c)(1)(B), italics added; see Stats. 1998, ch. 1056, § 17.1.) Based on this amendment,
some courts suggested that parents must prove something more than Autumn H. required,
some heightened level of harm or an additional ‘compelling reason.’ [Citations.] But
closer examination of the legislative history of this amendment reveals the change does
not impose an additional or heightened showing. The Legislature added the ‘compelling
reason’ language in section 366.26 and throughout the Welfare and Institutions Code to
comply with the new Adoption and Safe Families Act of 1997 (ASFA). [Citation.] That
federal statute required a ‘compelling reason’ in particular situations when an agency
didn’t move to terminate parental rights, or a court declined to terminate parental rights
within specified timeframes. (See. 42 U.S.C. § 675(5)(C), (E)(ii).)” (Caden C., supra,
11 Cal.5th at p. 636.) The court then went on to state that “where terminating a child’s
substantial, positive attachment to the parent would, on balance, be detrimental to the
child, that simply is a compelling reason not to terminate parental rights.” (Ibid, fn.
omitted.)
“When applying the beneficial parent-child relationship exception, the court
balances the strength and quality of the parent-child relationship in a tenuous placement
against the security and sense of belonging that a stable family would confer on the child.
If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
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“ ‘[F]or the exception to apply, the emotional attachment between the child and
parent must be that of parent and child rather than one of being a friendly visitor or
friendly nonparent relative, such as an aunt.’ ” (In re Jason J. (2009) 175 Cal.App.4th
922, 938 (Jason J.).) The parent must show more than frequent and loving contact or
pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “ ‘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.’ ” (Jason J., at p. 937.)
2. STANDARD OF REVIEW
In Caden C., the Supreme Court granted review to resolve what standard applies
in decisions regarding the applicability of the beneficial relationship exception. (Caden
C., supra, 11 Cal.5th at p. 639.)
The Supreme Court first explained the three different standards that had developed
over the years. “Many courts review all the trial court’s findings for substantial evidence.
[Citation.] Other courts have suggested that the appropriate standard is abuse of
discretion because the ‘juvenile court is determining which kind of custody is appropriate
for the child.’ [Citation.] And yet others, including the Court of Appeal in this case,
have adopted a ‘hybrid’ standard. They review whether there has been regular visitation
and whether there is a beneficial relationship for substantial evidence but whether
20
termination would be detrimental for abuse of discretion.” (Caden C., supra, 11 Cal.5th
at p. 639.)
The Supreme Court then went on to state: “We agree with the general consensus:
a substantial evidence standard of review applies to the first two elements. The
determination that the parent has visited and maintained contact with the child
‘consistently,’ taking into account ‘the extent permitted by the court’s orders’ [citation] is
essentially a factual determination. It’s likewise essentially a factual determination
whether the relationship is such that the child would benefit from continuing it.” (Caden
C., supra, 11 Cal.5th at pp. 639-640.)
The court then went onto the third element: “The third element—whether
termination of parental rights would be detrimental to the child—is somewhat different.
As in assessing visitation and the relationship between parent and child, the court must
make a series of factual determinations. These may range from the specific features of
the child’s relationship with the parent and the harm that would come from losing those
specific features to a higher-level conclusion of how harmful in total that loss would be.
The court must also determine, for the particular child, how a prospective adoptive
placement may offset and even counterbalance those harms. In so doing, it may make
explicit or implicit findings ranging from specific benefits related to the child’s specific
characteristics up to a higher-level conclusion about the benefit of adoption all told. All
these factual determinations are properly reviewed for substantial evidence.” (Caden C.,
supra, 11 Cal.5th at p. 640.)
21
However, the Supreme Court noted that “the court must also engage in a delicate
balancing of these determinations as part of assessing the likely course of a future
situation that’s inherently uncertain. . . . The court makes the assessment by weighing the
harm of losing the relationship against the benefits of placement in a new, adoptive home.
And so, the ultimate decision—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with his parent—is discretionary
and properly reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th at p. 640.)
Under the substantial evidence standard of review, “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.’
[Citations.] Uncontradicted testimony rejected by the trial court ‘ “cannot be credited on
appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it
cannot rationally be disbelieved.” ’ ” (Caden C., supra, 11 Cal.5th at p. 640.)
As for the abuse of discretion standard, the Supreme Court stated that “[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.] But, ‘ “ ‘[w]hen 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.’ ” ’ ” (Caden C., supra, 11 Cal.5th at p. 641.)
22
In sum, the Supreme Court noted that “[w]hile each standard here fits a distinct
type of determination under review, the practical difference between the standards is not
likely to be very pronounced. Review for substantial evidence applies to factual
determinations; abuse of discretion applies when a lower court must delicately balance
factual determinations to assess an uncertain future situation. But where, as with the
parental-benefit exception, ‘the appellate court will be evaluating the factual basis for an
exercise of discretion, there likely will be no practical difference in application of the two
standards.’ [Citations.] At its core, the hybrid standard we now endorse simply
embodies the principle that ‘[t]he statutory scheme does not authorize a reviewing court
to substitute its own judgment as to what is in the child’s best interests for the trial court’s
determination in that regard, reached pursuant to the statutory scheme’s comprehensive
and controlling provisions.’ ” (Caden C., supra, 11 Cal.5th at p. 641.)
3. ANALYSIS
In this case, parents argue that the juvenile court’s termination order should be
reversed because they had positive bonds with the children and the children would
benefit from continuing their relationship with parents.
We first address Mother’s argument. Mother contends that the children would
benefit from continuing their relationship with Mother. Mother stated: “The children’s
strong bond with their mother started when mother raised them from birth—to five years
old for A.G. and to three years old for W.G. After being detained, the children continued
contact with their mother through weekly supervised visitation.” We agree that Mother
and the children share a bond, and that Mother maintained contact with the children.
23
This goes to the first prong of the beneficial exception test. Here, the court agreed that
the parties have a shared bond. However, as noted ante, “ ‘for the exception to apply, the
emotional attachment between the child and parent must be that of parent and child rather
than one of being a friendly visitor or friendly nonparent relative, such as an aunt.’ ”
(Jason J., supra, 175 Cal.App.4th at p. 938.)
In this case, at the time of the section 366.26 hearing, the children were placed in
foster parents’ home for two and a half years. There, the evidence showed that the
children had a loving and stable placement who had cared for the children since their
detention out of home. Foster parents had assumed full parental responsibilities and care
of the children, including educational responsibilities. CFS reported that there was no
doubt that the children and the foster parents shared a strong bond with each other.
Moreover, the foster parents addressed the children’s severe dental problems and all
medical needs. They enrolled the children in therapy, sports, and extracurricular
activities. They also enrolled W.G. in preschool and A.G. in speech therapy. When
W.G. often had nightmares and cried in his sleep, the foster parents rocked and consoled
him back to sleep. While living in their home, W.G.’s temper tantrums decreased. The
foster parents ensured that the children felt like they were part of the family. In return,
the children went to them for comfort, nurture, and to have their needs met. The children
were reported to be happy and content. When A.G. was asked how A.G. felt about
staying with the foster parents until she was grown, she jumped up and down with
excitement.
24
Although Mother shared a bond with the children, she did not participate in the
day-to-day care of the children. At the section 366.26 hearing, Mother admitted that she
did not know the children’s teachers’ names. Moreover, Mother had not graduated to
unsupervised visits with the children; hence, she never had to care for the children on her
own. She also did not go to medical appointments, therapy sessions, or other
appointments the children had. Furthermore, although Mother was invited to the
children’s sporting events and birthday parties, she refused to attend because she only
wanted to spend time with the children one on one—even though the children wanted her
to attend. This behavior showed that Mother was only concerned about her needs, and
not about the wants and desires of her children.
The parent must show more than frequent and loving contact or pleasant visits.
(In re Dakota H., supra, 132 Cal.App.4th at p. 229.) “ ‘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.’ ” (Jason J., at p. 937.)
As provided in detail above, we, as a reviewing court, cannot substitute our own
judgment as to what is in the children’s best interests. (Caden C., supra, 11 Cal.5th at p.
641.) Here, substantial evidence supports the court’s finding that Mother has failed to
demonstrate that the children would benefit from continuing a relationship with Mother.
25
Therefore, we discern no abuse of discretion in terminating Mother’s parental rights
because the beneficial relationship except did not apply.
Next, we address Father’s arguments. Similar to Mother’s contentions, Father
argues that the court erred in terminating his parent rights because the beneficial
relationship exception should have been applied. Father’s argument also fails. As noted
above, the court found that Parents had a bond with the children. Therefore, we again
address only the second-prong of the beneficial relationship exception.2
We note CFS argues that “in this appeal, father’s rights are not at issue.” CFS
goes on to state that because Mother “failed to request Judicial Notice of the appeal brief
by Father, which is fundamentally fatal,” it would not address Mother’s adoption of
Father’s arguments. Father, however, did file a notice of appeal—first in the superior
court on January 8, 2021, which was then received by this court on January 12, 2021, and
assigned the same appellate case number, case No. E076398. Thereafter, Father filed his
opening brief on March 15, 2021. Thus we fail to see how Father’s appeal is
“fundamentally fatal.” In his reply brief, Father is similarly perplexed by CFS’s
2 We note that in its initial brief, CFS argued that “in this appeal, father’s rights
are not at issue.” CFS went on to state that because Mother “failed to request Judicial
Notice of the appeal brief by Father, which is fundamentally fatal,” it would not address
Mother’s adoption of Father’s arguments. Father, however, did file a notice of appeal—
first in the superior court on January 8, 2021, which was then received by this court on
January 12, 2021, and assigned the same appellate case number, case No. E076398.
Thereafter, Father filed his opening brief on March 15, 2021. On May 28, 2021, CFS
filed a motion for leave of court to serve and file a respondent’s brief to address Father’s
appeal. On June 2, 2021, we granted the motion and noted, “In the future, San
Bernardino County Children and Family Services should file one respondent’s brief in
response to all appellants’ opening briefs.”
26
response. Consequently, Father “requests this court [to] consider co-appellant father’s
appeal solely on the record, appellant’s opening brief and this reply brief, and respondent
be prohibited from seeking oral argument as related to father. (See California Rules of
Court, rules 8.412(d)(1), 8.416(g) and 8.202(a)(2).)” By failing to address Father’s
arguments on appeal, CFS has forfeited its right to bring forth arguments regarding
Father.
Here, Father argues that the exception should apply because Father never missed a
visit during the entirety of the case, and was consistently and appropriate in the visits.
Moreover, Father was willing to pass up his individual visitations with the children
because the children wanted Father to attend their various extracurricular activities
instead. Father put the needs of the children above his own. Furthermore, the children
called him “daddy” and cried when their visitations ended. W.G. would follow Father
outside to the car because he wanted to go home with Father. They were all very
affectionate with each other.
We agree the evidence provided by Father shows that the children and Father
enjoy a special bond and Father cared about the children. On appeal, however, we have
to determine whether substantial evidence supports the court’s finding that the children
would not benefit from continuing a relationship with Father. Here, we find that
substantial evidence supports the juvenile court’s finding Father has failed to demonstrate
that the children would benefit from continuing a relationship with Father.
As we noted with Mother, Father did not participate in the day-to-day care of the
children. Father, unlike Mother, did attend the children’s extracurricular activities.
27
Nonetheless, we note that Father had not visited the children unsupervised or had them in
his home after they became dependents of the court. Although Father has demonstrated
that he has maintained contact with the children as permitted, he failed to show that the
children would benefit from continuing the relationship and that they would be greatly
harmed should parental rights terminate. As previously stated, “the parent must show
more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between
natural parent and child will always confer some incidental benefit to the child. . . . The
relationship arises from day-to-day interaction, companionship and shared experiences.
[Citation.]’ [Citation.] The parent must show he or she occupies a parental role in the
child’s life, resulting in a significant, positive, emotional attachment from child to
parent.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954, quoting Autumn H., supra,
27 Cal.App.4th at p. 575.) The second requirement for the parental benefit exception to
apply requires that Father prove that the children would benefit from continuing the
relationship. (§ 366.26, subd. (c)(1)(A).) “The existence of this relationship is
determined by ‘[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.’ ” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206,
quoting Autumn H. at p. 576.) Again, “ ‘for the exception to apply, the emotional
attachment between the child and parent must be that of parent and child rather than one
of being a friendly visitor or friendly nonparent relative, such as an aunt.’ ” (Jason J.,
supra, 175 Cal.App.4th at p. 938.)
28
Here, while Father visited with the children, the foster parents took care of the
daily parenting of homework, meals and discipline. They provided stability and
permanence for the children. Moreover, application of the beneficial relationship
exception requires the parent to show “more than the relationship is ‘beneficial.’ ” (In re
Casey D. (1999) 70 Cal.App.4th 38, 52, fn. 4.) The parent must demonstrate the
relationship “ ‘promote[s] the well-being of the child to such a degree that it outweighs
the well-being the child would gain in a permanent home with new, adoptive parents.’ ”
(Ibid.; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy
more than a “pleasant place” in the child’s life for the beneficial relationship exception to
apply]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [beneficial relationship
exception did not apply; loss of mere “frequent and loving” contact with parent was
insufficient to show detriment from termination of parental rights].)
In re G.B. (2014) 227 Cal.App.4th 1147, is instructive. In that case, the appellate
court determined substantial evidence supported the juvenile court’s order that the
beneficial-relationship exception did not apply. There, the court observed that the mother
had failed to meet her burden. Similar to this case, in In re G.B., there was evidence that
the mother’s visits with the children went well and that her children had positive
reactions to her during the visits. The court, however, noted that the juvenile court’s
order will be affirmed “if supported by substantial evidence, even if other evidence
supports contrary conclusion.” The appellate court stated that “this evidence fell short of
establishing that mother’s relationship with her children promoted their well-being to
such an extent that it outweighed the well-being the children would gain in a permanent
29
home with adoptive parents. [Citation.] Mother’s visits with her children were always
supervised, mother was only at the beginning stages of working on the effects of
domestic violence in her life, and there was still instability and dysfunction surrounding
her relationship with father. By contrast, the children were in a secure placement and
were bonded with their current and prospective caregivers.” (Id. at p. 1166.) Similar to
In re G.B., Parents’ relationships with the children does not outweigh the well-being the
children would gain in a stable, permanent and loving home with their foster parents.
In this case, we agree with the juvenile court that although the children shared a
bond with both Father and Mother, severing that bond would not be detrimental to the
children. Again, as noted above, the relative caretakers provided for the physical and
emotional needs of the children. Although the children were happy to see Father at the
visits they were also happy to see and spend time with the foster parents. Additionally,
Father’s and Mother’s visits never became unsupervised. The beneficial exception is
“difficult to make in the situation, such as the one here, where the parents have [not]
advanced beyond supervised visitation.” (In re Casey D., supra, 70 Cal.App.4th at p.
51.)
In conclusion, we note that the juvenile court agreed with parents that both Mother
and Father had positive bonds with the children. As noted above, the court stated that
“[t]here is no doubt that both parents love the children very much, and that that is mutual
that there is love and affection from the children to the parents as well.” The court,
however, found that Parents failed to establish the second prong of the beneficial
exception to apply. The court noted that the children had been removed for two years
30
after “extremely significant injury to [W.G.] and the delay in medical care to him that
caused him extreme suffering.” The court went on to state that the children had been
placed together and there was evidence “that they are thriving in placement with these
relatives. And as far as day-to-day parenting, it’s the [foster parents] who have provided
that for two years. And the parents contact has always been supervised. [¶] So when
looking at a five and seven-year-old, and the benefits of permanency, [A.G.’s] own
statements, the report which demonstrates that the children do look to the relative
caretakers for comfort and support, I’m weighing that heavily in making the
determination that the parents have not met the burden to demonstrate that severing the
parental bond would be so significant that I shouldn’t make that determination, which is
the preference under the law. [¶] So I am going to terminate parental rights.”
As stated previously, under the hybrid standard of review outlined in Caden C.,
supra, 11 Cal.5th 614, section 366.26 “ ‘does not authorize a reviewing court to substitute
its own judgment as to what is in the child’s best interests for the trial court’s
determination in that regard, reached pursuant to the statutory scheme’s comprehensive
and controlling provisions.’ ” (Caden C., supra, 11 Cal.5th at p. 641.) Under the
standard of review outlined, we are bound by the juvenile court’s factual findings if
supported by substantial evidence.
Here, we find that there is substantial evidence to support the juvenile court’s
finding that parents failed to establish the beneficial parental relationship exception
applied in this case. There was insufficient evidence the children would benefit more
from continuing their relationship with mother and father than from adoption. Therefore,
31
we find that the juvenile court did not abuse its discretion in finding that the parental
benefit exception did not apply.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
I concur:
McKINSTER
Acting P. J.
32
[In re W.G et al., E076398]
FIELDS, J.
I fully concur in the majority’s determination that “there is substantial evidence to
support the juvenile court’s finding that parents failed to establish the beneficial parental
relationship exception applied in this case,” and that “[t]here was insufficient evidence
the children would benefit more from continuing their relationship with mother and father
than from adoption.” However, I write separately to address the majority’s requirement
that the parents prove that they occupied a parental role in the lives of the children for the
parental-benefit exception to apply. After, In re Caden C. (2021) 11 Cal.5th 614
(Caden C.), I no longer believe that a parent must show that he or she occupied a
“parental role” in the child’s life.
In applying the parental-benefit exception, courts have traditionally required the
parent to show that the parent occupies a “ ‘parental role’ in the child’s life.” (E.g., In re
Derek W. (1999) 73 Cal.App.4th 823, 827.) This required showing is based on
Autumn H., where the court observed, “[t]he exception applies only where the court
finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent.” (Autumn H. (1994) 27 Cal.App.4th 567,
575, italics added; e.g., In re Derek W., at p. 827; In re Elizabeth M. (1997)
52 Cal.App.4th 318, 324; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Caden C. did not change the requirement that parents show their regular visits and
contact resulted in a significant, positive emotional attachment from parent to child.
1
However, Caden C. did not define that attachment to mean that the parent must occupy a
parental role in the child’s life.
According to Caden C., a parent must show three things in order for the parental-
benefit exception to apply: “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. When the parent has met that burden, the parental-benefit exception
applies such that it would not be in the best interest of the child to terminate parental
rights, and the court should select a permanent plan other than adoption.” (Caden C.,
supra, 11 Cal.5th at pp. 636-637.)
In discussing the parental-benefit exception, Caden C. did not mention any
requirement that a parent show that the parent occupies a parental role in the child’s life.
(Caden C., supra, 11 Cal.5th at pp. 631-632.) Regarding the second element of the
exception, Caden C. emphasized that the focus is on the child, and that courts “assess
whether ‘the child would benefit from continuing the relationship.’ (§ 366.26,
subd. (c)(1)(B)(i).)” (Id. at p. 632.) Among other things, Caden C. observed that
“ ‘parenting styles and relationships differ greatly between families,’ ” and that
Autumn H., which guided the court’s analysis of the exception, “ ‘does not narrowly
define or specifically identify the type of relationship necessary to establish the
2
exception.’ ” (Caden C., at pp. 632-633.) The Supreme Court’s approach in Caden C. is
inconsistent with a mandate that the parents show they occupy a parental role in the
child’s life. According to Caden C., what must be shown is “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.” (Caden C., at
p. 636.) Caden C. specifically held that it is not necessary to calibrate the nature of that
relationship: “Certainly, it is not necessary—even if it were possible—to calibrate a
precise ‘quantitative measurement of the specific amount of “comfort, nourishment or
physical care” [the parent] provided during [his or] her weekly visits.’ ” (Caden C., at
p. 632.) In light of the Caden C.’s articulation of the applicability of the parental-benefit
exception, I no longer believe that it is necessary that a parent show that he or she
occupied a parental role in the child’s life. Often, such a requirement is virtually
impossible to fulfill in light of the custody and visitation orders of the court.
FIELDS
J.
3