Filed 8/16/21 In re A.M. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.M., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY,
CHILDREN & FAMILY SERVICES
BUREAU, A161780
Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J18-00432)
J.W. et al.,
Defendants and Appellants.
J.W. (mother) and M.M. (father) appeal an order terminating their
parental rights to A.M., their now three-year-old daughter and selecting
adoption as the child’s permanent plan under Welfare and Institutions Code
section 366.26.1 Mother contends the trial court erred in applying the
parental benefit exception (§ 366.26, subd. (c)(1)(B)(i)). Father joins mother’s
argument and contends that if the order is reversed as to her, it must be
reversed as to him as well. We find no error and affirm the order terminating
parental rights.
1 All statutory references are to the Welfare and Institutions Code.
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Background
In April 2018, the Contra Costa County Children and Family Services
Bureau (the bureau) filed a dependency petition alleging that at the time of
A.M.’s birth, both she and her mother tested positive for methadone,
benzodiazepines and oxycodone. A.M. suffered from significant drug
withdrawal symptoms and remained in the hospital for almost two months.
In June 2018, the court found that A.M. came within the meaning of section
300, subdivision (b), based on mother’s substance abuse. At the dispositional
hearing held later that month, A.M. was placed with her maternal
grandparents. By December 2018, the court found that mother had been
maintaining her sobriety and A.M. was returned to her custody.
In January 2020, the bureau filed a supplemental petition seeking to
move A.M. to a more restrictive placement. The petition alleged, among other
things, that the parents had been involved in three domestic violence
incidents in 2019 and that the parents continued to violate prior court orders
that prohibited them from having contact with each other. The court
approved the emergency placement of A.M. with her maternal grandparents
and sustained the allegations of the supplemental petition.
At the dispositional hearing on the supplemental petition, the court
terminated reunification services for both parents and set a section 366.26
hearing.2
The section 366.26 hearing took place on November 19, 2020. The social
worker’s report, admitted into evidence at the hearing, indicated that since
2 It does not appear that mother filed a writ petition challenging the
setting of the section 366.26 hearing. Father’s writ petition, which challenged
the reduction in the frequency of his visitation after termination of
reunification services, was denied by this court. (M.M. v. Superior Court
(A160676, Nov. 10, 2020) [non. pub. opn.].)
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late July 2020, mother had visited A.M. consistently, twice monthly, for one
hour per visit. The social worker described mother as “always attentive and
engaging in her efforts to meet [A.M.’s] needs (i.e., changing her diaper,
feeding her, holding her, playing with her)” and reported that A.M. enjoyed
the time spent with her mother. Mother asserted the parental benefit
exception to the termination of her parental rights. She argued that she and
A.M. were bonded, but did not testify or offer other evidence in support of her
argument. The court found that mother’s relationship with A.M. did not
outweigh the benefits of permanence with an adoptive family and terminated
the mother’s and father’s parental rights.
Both parents timely filed a notice of appeal.
Discussion
The purpose of the section 366.26 hearing is to select a permanent plan
for the child after reunification efforts have failed. (§ 366.26, subd. (b); In re
Marilyn H. (1993) 5 Cal.4th 295, 304.) Adoption, where possible, is the
permanent plan preferred by the Legislature for a dependent minor child who
has not been returned to the custody of his or her parents and is found by the
court to be adoptable. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
When the court finds that a child is likely to be adopted if parental rights are
terminated, it must select adoption as the permanent plan unless “the parent
shows that termination would be detrimental to the child for at least one
specifically enumerated reason.” (In re Caden C. (2021) 11 Cal.5th 614, 630
(Caden C.).)
Here, mother contends the court erred in finding that the “parental-
benefit” exception does not apply. (§ 366.26, subd. (c)(1)(B)(i).) In Caden C.
the court explained that for this exception to apply, a parent is required to
show “(1) regular visitation and contact, and (2) a relationship, the
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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, italics omitted.) “The first element—regular visitation and
contact—is straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Id.
at p. 632.) “As to the second element, courts assess whether ‘the child would
benefit from continuing the relationship.’ [Citation.] Again here, the focus is
the child. And the relationship may be shaped by a slew of factors, such as
‘[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.’ ” (Ibid., quoting In re Autumn H.,
supra, 27 Cal.App.4th at p. 576.) “Concerning the third element—whether
‘termination would be detrimental to the child due to’ the relationship—the
court must decide whether it would be harmful to the child to sever the
relationship and choose adoption.” (Id. at p. 633.)
As to the first two elements, the substantial evidence standard of
review applies. “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 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
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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. [Citations.] [¶] Yet 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
decision is not the same as a determination whether to transfer the child
from the custody of one caregiver to another, but it does require assessing
what the child’s life would be like in an adoptive home without the parent in
his life. [Citation.] 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.” (Id.
at p. 640.)
Here, there is no dispute that A.M. is adoptable and that her maternal
grandparents, with whom she has been placed on and off since birth, intend
to adopt her. The social worker’s section 366.26 report indicates that A.M.
“engages easily with her prospective adoptive parents,” who are “committed
to providing a permanent, loving and stable home for her.” The report opines
that A.M. “appears comfortable in the care of her prospective adoptive
parents, as she freely communicates her needs with verbal two word
sentences and actively show[s] prospective adoptive parents what she wants.
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She is building a close reciprocal relationship with her prospective adoptive
parents and appears to feel a secure and trusting bond.”
The record establishes that mother has maintained regular visitation
with her daughter sufficient to satisfy the first requirement for application of
the exception. Although mother did not testify or offer any witnesses on her
behalf, the social workers’ reports provide some evidence that mother has a
positive, loving relationship with her daughter. Early in the proceedings the
social worker reported that A.M. “appeared bonded with [mother] during
visits as evidenced by her watching, smiling, playing, kissing and reaching
for [her] when in [her] presence.” After A.M. was returned to mother’s care,
the social worker observed that A.M. “appeared happy and bonded with
mother, as evidenced by her positive interactions with mother.” The section
366.26 report submitted by the social worker confirms that A.M. “enjoys the
time spent” with her mother. Presumably, continuing that relationship would
be of some benefit to A.M.
The record is devoid, however, of evidence regarding how the severance
of that relationship would harm A.M. As the court in Caden C. supra,
11 Cal.5th at page 636 explained, it is the parent’s burden to establish by a
preponderance of the evidence that terminating the child’s beneficial
attachment to her parent “would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home.”
Mother, however, did not testify at the section 366.26 hearing or present any
other testimony from expert witnesses, service providers, family or friends to
support a finding that termination of her relationship with her daughter
would be detrimental. Nor did she request a bonding study be completed.
(See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 [failure to request
bonding study waives contention that the juvenile court should have required
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a bonding study before terminating his parental rights].) Accordingly, mother
did not satisfy her burden and the trial court did not abuse its discretion in
concluding that any potential harm to A.M. from the loss of her relationship
with her mother was outweighed by the benefits of a permanent placement
with her grandparents.
Disposition
The order terminating parental rights is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
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