Filed 6/27/22 In re H.N. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Calaveras)
----
In re H.N., a Person Coming Under the Juvenile Court C094921
Law.
CALAVERAS COUNTY HEALTH AND HUMAN (Super. Ct. No. 20JD6278)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.N. et al.,
Defendants and Appellants.
S.N. (mother) and M.N. (father), the parents of the minor H.N., appeal from the
juvenile court’s orders terminating their parental rights and freeing the minor for
adoption. (Welf. & Inst. Code, §§ 366.26, 395.)1 The parents contend the juvenile court
1 Undesignated statutory references are to the Welfare and Institutions Code.
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erred when it found the parents had not proven the beneficial parental relationship
exception to adoption. We will affirm the juvenile court’s orders.
I. BACKGROUND
Detention
On July 17, 2020, the Calaveras County Health and Human Services Agency
(Agency) filed a section 300 petition on behalf of the two-year-old minor alleging he
came under the jurisdiction of the juvenile court through section 300, subdivisions (b)(1)
and (c).
The petition alleged an episode of domestic violence two days prior when mother
blocked father from leaving their home and grabbed his hair. Father responded by hitting
mother in the head, leaving a cut. He also pulled mother out of the car causing cuts and
abrasions to her arms and shoulder. As a result, father was arrested. Mother and father
did all this in front of the minor. Mother stated she “blacked out” during the altercation
and did not remember what happened.
The petition alleged the home (which was a camper) was hot, filthy, and filled
with hazards for a small child. There were feral cats laying in the debris and clutter,
animal feces on the floor, garbage bags of dirty diapers, electrical cords within reach of
the minor, pieces of metal and tools on the floor, and numerous flies. There were
prescription pill bottles, bags of pills, and marijuana strewn about, all within reach of the
minor. A methamphetamine pipe was found in the shed within the minor’s reach.
The petition further alleged mother admitted she had untreated mental health
issues including bipolar disorder, posttraumatic stress disorder, anxiety, and depression.
Mother also admitted the minor was not safe in their home.
The petition further alleged mother and father have substance abuse problems.
Mother claimed she used methamphetamine a couple days a week, and father used it
daily.
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In the detention report, the Agency set forth the above facts and attached
photographs showing the filthy and unsafe condition of the home. The report also recited
the parents’ long history of domestic violence and noted they were already in an open
voluntary family preservation case to address domestic violence and home safety hazards.
The two most recent prior incidents occurred in 2020. In one, father grabbed mother by
the arm while she was holding the minor and started choking her, and, in another, father
hit mother in the face.
At the detention hearing, father and mother submitted on the reports. The juvenile
court found the agency made a prima facie case and ordered the minor detained. It
ordered supervised visitation at the Agency’s discretion.
Jurisdictional/Disposition
Prior to the combined jurisdiction/dispositional hearing, the Agency filed two
reports. In the first report, the Agency reported the minor had been placed in the home
where his biological sister lived. The report recapped the original altercation and the
parents’ long history of domestic violence, substance abuse, and mother’s mental health
issues. The report stated the parents argue among themselves outside while leaving the
minor alone inside the home unsupervised and subject to its filth and many perils.
The Agency reported the minor was a quiet and observant toddler who could not
speak and was developmentally delayed in several respects when he was detained. In the
interim, he was bonding well to his caregiver and older sister and thriving in placement.
He was also making progress in meeting his developmental milestones. He slept well
and was adjusting to eating healthier food and snacks.
There had been eight scheduled supervised visits since the minor was detained.
Each parent missed three visits, and they were regularly late. When mother missed one
of the visits and arrived as it ended, she was told the minor needed to leave. She
responded with an escalated and emotional response and screamed at the social worker.
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The minor appeared unaffected by his mother’s tantrum as if this was a normal
occurrence.
Mother tested positive for various drugs three times between detention and the
date of the jurisdiction report. She failed to show up for her substance abuse intake.
Father, similarly, tested positive twice at the end of July 2020, but then tested negative
for all substances a week later. He reported to his substance abuse intake as required.
Despite the fact father had a criminal conviction that may have made him eligible
for bypass of reunification services, the Agency stated it was in the minor’s best interest
to provide him with services because the child was well bonded with his father as his
primary caregiver. The Agency proposed a case plan and supported the goal of
reunification.
In the addendum to the report filed two months later, the Agency reported the
parents made minimal progress in the services offered to them. Mother did not engage
with parent partner, inconsistently engaged with her therapist and psychiatrist, and
refused substance abuse treatment. She failed to submit to drug testing several times, and
she tested positive for methamphetamine on other dates. Father failed to follow through
on his substance abuse treatment, failed to test several times, and tested both positive and
negative for methamphetamine on different dates. The parents did not engage in
parenting classes and were inconsistent in their visitation. When they did attend, they
were late for every visit and constantly argued and bickered with each other during the
visits. When they did engage with the minor, however, the social worker reported the
parents were loving and nurturing.
The parents submitted at the dispositional hearing, although father reported to the
juvenile court he and mother had a personality conflict with the parenting coach. The
court found the amended petition true, declared the minor a dependent, continued his out-
of-home placement, granted visitation, and ordered the parents to complete their
reunification plans.
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Section 366.21 Status Review Hearing
The section 366.21 status review report stated while the parents started to make
minimal progress on the court ordered services, they had not demonstrated the ability to
follow through to provide a stable, violence free, and sober home for the minor. The
report recommended the court continue to declare the minor a dependent of the court,
terminate the reunification services, and schedule a section 366.26 selection and
implementation hearing.
At this point, the report noted the minor was a picky eater, exhibited autistic
behaviors, and his speech was delayed. His caregiver reported the minor was making
progress with his speech and using words to communicate his needs.
The status review report summarized information from the parents’ most recent
visitation with the minor and included the visit logs and reports. There were a few bright
spots in some of the visits. The parents engaged in play activities he liked, provided the
minor with comfort and hugs while they visited, and engaged in playdough play. At
times the minor was excited to see mother and father; at other times he showed no
reaction to their arrival. The parents engaged with the minor, cuddled him, and read to
him.
Much of the interaction between the parents and the minor during visitation had a
negative impact on minor. The report chronicled the parents regularly bickered back and
forth during supervised visitation and in front of the minor. The parents were resistant to
parent coaching during the visits. At times during visitation, the parents were not focused
on their two year old at all. Both parents struggled to provide nutritious meals for the
minor during visits despite efforts to instruct them otherwise. They brought cookies,
candy, donuts, and sugary drinks and did not know when the minor was hungry. The
parents did not carefully supervise the minor during the visitation and , on one occasion,
he ran away from them, nearly making it into the parking lot. The parents did not show
empathy towards the minor during visitation and did not let him rest, even when he was
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tired. The parents did not check the minor’s diaper unless prompted by the visit coach.
The parents did not appear equipped to handle necessary discipline or follow through
with the minor during the visits.
According to the court-appointed special advocate (CASA) report, the minor’s
caregivers did not see any differences in the minor’s behavior after the visits. Further,
the minor was happy and comfortable in his placement, and his caregivers were open to
being a permanent placement for the minor. The minor had begun to blossom and
communicate in their care. The CASA volunteer noted the parents had threatened the
well-being of the caregivers if they gained permanent custody of the minor.
At the six-month status review hearing, father and mother submitted on the
reports. The juvenile court terminated reunification services and set the case for a section
366.26 hearing to select a permanent plan for the minor. The court reduced the parents’
visitation to every other week for an hour.
Section 366.26 Hearing
The section 366.26 report recommended the minor remain a dependent of the
court, the court terminate the parental rights of mother and father, and the court select
adoption as the permanent plan. The report further noted, the minor was a quiet three
year old who, at the time of his initial placement, could not formulate words, and he had
grown into a child with an increased vocabulary and the ability to use words to express
his feelings and socialize with other children.
The report asserted the minor was adoptable due to his young age, lack of
significant developmental issues, and his resilience in overcoming the trauma and neglect
he was exposed to at an early age. He had benefited and made progress, physically,
mentally, and educationally due to the stability of the constant routines in his current
placement. The caregivers had requested they be considered for adoption.
The report stated the minor’s caregiver told the Agency the minor continued to be
less and less interested with visiting his parents and did not ask to visit with them. She
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also shared while he used to ask about his parents when they drove by the Agency
building, he no longer did so. The caregiver reported the minor did not recognize mother
as his “mommy” in a photo she sent to the caregiver. The Agency representative that
supervised the visitation observed the minor was resistant to his mother’s hugs and
kisses. During those visits, the report reflected the parents engaged with the child. The
minor, however, continued to run away from his parents and they did not set appropriate
boundaries. The parents continued to arrive late to visits and continued to bring cookies
to visits despite being instructed not to, and the minor got sick from those cookies. The
visit notes also stated the parents brought toys to the visits, they engaged H.N. in learning
and language activities, and the minor appeared happy at the visits.
At the contested 366.26 hearing, the parents requested the court order a bonding
study. The Agency objected to this late request and the juvenile court denied it. The
court granted the caregivers’ motion to be designated as de facto parents.
The Agency submitted the matter on its reports. Father cross-examined the social
worker. The social worker testified the minor experienced trauma when he was
originally detained. The social worker observed short portions of two supervised visits
and specifically recalled a single visit between the minor and the parents. At that visit,
the minor was happy to see his parents and the social worker had no concerns regarding
that visit. The social worker confirmed the minor was also happy to visit with his father
shortly before the section 366.26 hearing. The social worker also described the bond
between the minor and his father as the father is engaged with and plays with the minor
during visits. The social worker testified severing the parental bond was in the minor’s
best interests because the minor would have an opportunity to be in a stable environment
with new parents who were willing to access the resources necessary to meet his needs.
Based on the reports and the cross-examination of the social worker, the parents
argued the beneficial parent exception applied and requested that the court not terminate
their parental rights.
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After receiving the evidence and hearing the arguments of counsel, the juvenile
court took a recess. When it returned to session, the juvenile court stated it had reviewed
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and other cases. The juvenile court
informed the parties the entire case was about the minor’s best interest. The juvenile
court again denied the request to suspend the proceedings to allow for a bonding study
because a bonding study would add another six months of delay, and the record contained
sufficient information for the juvenile court to rule.
The juvenile court stated its decision was not based on isolated good or bad things
that happened during visitation but on their cumulative impact. The court specifically
identified interactions that negatively affected the minor: the parents’ constant bickering,
their failure to bring diapers, and their bringing unhealthy food to visitation.
The juvenile court found by clear and convincing evidence, the minor was
adoptable. It found the parents participated in regular visitation. It also found there was
a parental relationship between the parents and the minor. The juvenile court stated the
key question in this case was whether “terminating the relationship [would] be so more
detrimental to [the minor] th[a]n the benefit he would gain in proceeding with []
permanency.” The juvenile court stated: “The most persuasive evidence before me that
leads to my decision is I see objective evidence he has made incredible strides in his
communication skills[,] he needs routine[.] I find they are very beneficial the routines he
has been given. As I say[,] nothing I am not deciding based on a single visit or single
instance, but the patterns of bringing sugar to every visit and giving it to him because he
liked it but it’s not good for him. He is also a picky eater. His nutrition is a big deal.
The trying to set up physical boundaries. I mean he is outside[.] [T]here are a couple of
times that luck played a part that he managed to be grabbed or stopped just before he got
into traffic. Well luckily there is a big parking lot there. There [are] patterns that the
consistency that I am finding he needs he is getting from the [caregivers] better than
through his biological parents. He is socializing with other kids[.] I find that those
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efforts that the [caregiver’s] experience . . . of 12 years of working as a para-educator will
be a benefit to him.”
The parents timely appealed termination of their parental rights.
II. DISCUSSION
Both parents contend the juvenile court erred in terminating their parental rights
because they established the beneficial parental relationship exception. Father further
argues the juvenile court considered improper factors in making this decision. We affirm
the juvenile court’s orders.
A. Legal Standards and Caden C.
At the section 366.26 selection and implementation hearing, a juvenile court must
choose one of the several “ ‘possible alternative permanent plans for a minor child. . . .
The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If
the court finds the child is adoptable, it must terminate parental rights absent
circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368.) The court should decline to terminate parental rights only if
the parents can establish termination would be detrimental to the child under one of the
statutory exceptions. (Caden C., supra, 11 Cal.5th at pp. 630-631.)
The beneficial parental relationship exception applies when: “The court finds a
compelling reason for determining that termination would be detrimental to the child due
to one or more of the following circumstances: [¶] (i) The parents have maintained
regular visitation and conduct with the child and the child would benefit from continuing
the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) There are three discrete elements a
parent must show by a preponderance of the evidence to establish the exception: “[(1)]
The parent must show regular visitation and contact with the child, taking into account
the extent of visitation permitted. [(2)] 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 [(3)] the
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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.” (Caden C.,
supra, 11 Cal.5th at p. 636.) It is the parents’ burden to show the beneficial parental
relationship exception applies by a preponderance of the evidence. (Id. at pp. 636-367.)
Our Supreme Court recently analyzed these factors in more depth in Caden C.
The Supreme court stated, the first element is “straightforward,” and is satisfied if the
“ ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ”
(Caden C., supra, 11 Cal.5th at p. 632.)
The second and third elements are focused on the child’s attachment to the parent,
and the analysis is informed 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.’ ” (Caden C., supra, 11 Cal.5th at
p. 632.) “[I]n 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.” (Ibid.) Thus, courts in
effect consider “what life would be like for the child in an adoptive home without the
parent in the child’s life.” (Id. at p. 633.) “In each case, then, the court acts in the child’s
best interest in a specific way: it decides whether the harm of severing the relationship
outweighs ‘the security and the sense of belonging a new family would confer.’ ” (Ibid.)
Caden C. also clarified that, when deciding whether termination of parental rights
would be detrimental to the child, the court should not compare the parents’ attributes as
custodial caregiver(s) relative to those of the potential adoptive parent(s). (Caden C.,
supra, 11 Cal.5th at p. 634.) The court can, however, consider how a new, stable home
may alleviate the emotional instability and preoccupation, which can lead to difficulties
for the minor by providing a new source of stability that could make the loss of a parent
not, at least on balance, detrimental. (Id. at p. 634.)
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Further, a parent’s lack of progress in addressing the issues that led to dependency
does not categorically bar the application of this exception. (Caden C., supra, 11 Cal.5th
at p. 637.) Otherwise, the exception would never apply because a section 366.26 hearing
is held when a parent has not been successful in addressing the problems leading to
dependency. (Ibid.) At the same time, the parent’s inability to address the issues leading
to dependency may be relevant in assessing whether the interaction between parent and
child “has a ‘negative effect’ on the child.” (Ibid.) When the parent’s struggles speak to
the benefit, or lack thereof, of continuing the relationship, those struggles are relevant and
properly considered to that extent. (Ibid.) These failures are relevant to the extent they
inform the central question before the court: “[W]ould the child benefit from continuing
the relationship and be harmed, on balance, by losing it?” (Id. at p. 638.)
The Supreme Court also set forth the applicable standard of review for the
beneficial parental exception: “A substantial evidence standard of review applies to the
first two elements,” and the third element, given it is a hybrid of factual determinations
and discretionary balancing, is “properly reviewed for abuse of discretion.” (Caden C.,
supra, 11 Cal.5th at pp. 639, 640.) “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.’ ” (Id. at
p. 641.)
B. Analysis
We conclude the juvenile court did not abuse its discretion in finding the parents
failed to demonstrate they had a substantial and positive emotional attachment to the
minor such that the termination of that bond would result in detriment to the minor when
balanced against the security of a stable adoptive home.
At the outset, the juvenile court told the parties it just finished review of Caden C.
The court found the parents had established they visited the minor and formed a parental
role with the minor, and no party takes issue with this ruling.
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The juvenile court also found there was a relationship. But the question remaining
was whether it was a beneficial relationship, the continuation of which, would benefit the
child such that the termination of parental rights would be detrimental to the child. In
answering this question, the juvenile court properly reviewed and weighed the relevant
factors when it found the exception does not apply here. First, the juvenile court
considered the minor’s young age. When he was detained, the minor was two years and
eight months old. At that time, he was unable to formulate words and was not on track in
several development areas. He had spent the last 14 months in his placement, or one-
third of his life, away from the parents as of the date of the 366.26 hearing.
While there were some positive effects on the minor during his visits with the
parents, the visit logs and information presented to the court demonstrated the
interactions between the parents and the minor had primarily negative impacts on the
minor. The parents brought him unhealthy food on a regular basis, even making him sick
on one occasion, despite repeated requests they not do so. The parents failed to
adequately supervise the minor allowing him to run off and, one time, almost into the
parking lot. The parents did not show concern or empathy for the minor during
visitation, and they did not set appropriate boundaries for the minor.
By the time of the section 366.26 hearing, the Agency’s report noted the minor
was less and less interested in his biological parents and had stopped asking about them.
He was resistant to his mother’s hugs and kisses and did not recognize her in a
photograph as his mother. When he returned home from visits with his parents, he
seemed unaffected.
In light of the minor’s young age, the negative impacts of his interactions with the
parents at visits, and the minor’s diminished bond with them, the parents failed to show
the minor had a substantial positive attachment or that termination of that attachment
would be detrimental to the minor in light of the benefits of an adoptive home. (Caden
C., supra, 11 Cal.5th at p. 636.)
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We reject father’s argument the juvenile court’s ruling “raises the spectre the court
gave undue weight to [] improper factors” by comparing the attributes of the parents to
those of the caregivers. The juvenile court appropriately noted the minor made
“incredible strides in his communications skills,” due to the “very beneficial” routines of
his current placement. In noting this, the juvenile court properly weighed this
information to assess the countervailing benefit a new adoptive home would have for the
minor when balanced against the impact of terminating the parental relationship. (Caden
C., supra, 11 Cal.5th at p. 633.) If mother’s and father’s parental rights were not
terminated, the minor would be denied a permanent, stable, adoptive family with his own
sibling, that has the kind of routine the minor needs.
Further, the juvenile court demonstrated its knowledge of the appropriate focus of
Caden C. when it identified the negative impacts of the failure of the parents to provide
nutritional food, appropriate physical boundaries, and for the child’s social growth during
their visits. The court properly used the child’s success away from the parents to
substantiate the negative impact generated by the parents’ interactions with the minor
during their visitation as contrasted with the positive strides the minor made when he was
not with his parents.
Father also asserts, the juvenile court’s ruling “seemed to require the parents to
have ‘cured’ the deficits that prevented them from regaining custody in the first place.”
There is nothing in the court’s ruling that suggests it considered the parents’ inability to
overcome their struggles with substance abuse or domestic violence or to comply with
their reunification plan. Rather, the court properly focused on the interaction between the
parents and the minor to determine if there was a beneficial relationship and to the extent
there was one, whether terminating that relationship would be detrimental to the minor
when balanced against the stability of an adoptive home. The court acknowledged this as
the basis for its decision when it said, “Everything today is about [the minor’s] best
interest. And that is why I do have to bring the focus . . . back on him, not the two of
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you.”
We further reject father’s argument to the extent it suggests the juvenile court
improperly considered the parents’ lack of progress in obtaining and exercising
appropriate parenting skills. As sanctioned by Caden C., the juvenile court properly
focused on the interaction between the parents and the minor during these visitation
sessions to determine whether the parents’ interactions had a positive or negative effect
on the child. (Caden C., supra, 11 Cal.5th at p. 638.) Their repeated failures in this
regard had a negative effect on the child and support the finding there was a lack of a
substantial, positive, emotional attachment to the parents. This was proper.
We thus conclude the trial court did not abuse its discretion in finding the parental
relationship exception does not apply.
III. DISPOSITION
The juvenile court’s orders are affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
DUARTE, J.
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