Filed 9/13/22 In re D.J. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
In re D.J., a Person Coming Under the Juvenile Court C095312
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No. STK-JD-DP-
AGENCY, 2020-0000099)
Plaintiff and Respondent,
v.
K.S. et al.,
Defendants and Appellants.
Appellants K.S. (mother) and D.J. (father), parents of the minor, appeal from the
juvenile court’s order terminating parental rights and freeing the minor for adoption. 1
1 Because father and the minor share the same initials, they will be referred to as “father”
and “minor,” respectively.
1
(Welf. & Inst. Code, §§ 366.26, 395.)2 The parents contend the juvenile court erred
when it found neither the beneficial parental relationship exception nor the sibling
relationship exception to adoption applied. Finding no merit in the parents’ claims, we
will affirm the juvenile court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The 300 Petition and Initial Orders
On May 16, 2020, the San Joaquin County Human Services Agency (Agency)
filed a section 300 petition on behalf of the three-month-old minor and her 11-year-old
half sibling, A.S., based on mother’s substance abuse, the parents’ history of domestic
violence, and father’s failure to provide for or protect the minor.3 The petition also
alleged mother admitted having two prescription drug-related driving under the influence
(DUI) cases in 2016, one of which occurred when mother passed out while driving and
caused an accident. The parents had previously come to the attention of child protective
services in November 2019 because of their domestic violence and again in March 2020
after mother overmedicated herself with prescription drugs. The minor was placed into
protective custody.
The juvenile court ordered the minor detained and, over the course of the next
several hearings, ordered supervised video visitation for both parents, followed by
supervised in-person visits subject to COVID-19 restrictions.
Father visited the minor and A.S. weekly by video. He initially exhibited
concerning behavior during two visits, making inappropriate sexual statements to a third
party, keeping his screen blacked out, and using profanity, all of which he denied. It was
also noted that father seemed preoccupied and not fully focused during visits with the
2 Undesignated statutory references are to the Welfare and Institutions Code.
3 A.S. is not a subject of the parents’ appeal and will be mentioned only when relevant to
the background and issues raised on appeal.
2
minor. Mother attended a residential substance abuse treatment program for several
months in 2020 until she was discharged from the program for persistent behavioral
problems. She was participating in parenting and domestic violence classes and
completed an anger management program. She also visited with the minor and A.S.
weekly by video.
The Agency recommended the court bypass father for services pursuant to
section 361.5, subdivision (a) due to his lengthy criminal record, his continued
downplaying of his criminal convictions despite their severity, and his continued denial
of the substantiated allegations of domestic violence against mother. The Agency
recommended, and the court ordered, reunification services for mother despite concerns
that she had yet to demonstrate any significant behavioral change after five months of the
services the Agency had already provided.
The court initially bypassed father for services at the disposition hearing pursuant
to section 361.5, subdivision (a). However, at a subsequent contested hearing, based on
testimony regarding father’s participation in services and his unremarkable visits with the
minor, the court ordered the Agency to provide father with reunification services,
including a 52-week domestic violence program, parenting classes, and individual
counseling as well as supervised visitation with the minor.
B. Status Review Hearings
In its March 2021 status review report, the Agency reported mother was
participating in classes and counseling and she had completed the residential component
of her substance abuse treatment program at New Directions and transferred to a
homeless shelter, where she had extended overnight visits with the minor and A.S. with
no concerns. However, mother was arrested in February 2021 for a traffic violation and
DUI and taken into custody. Minor and A.S., who had been in the car at the time, were
released to A.S.’s father, Mr. S. Mother was released the following day, but her
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overnight visits with the minor were immediately suspended. The minor was safely
returned to her foster caretaker, where she has since remained.
Father was reportedly participating in services, including domestic violence/anger
management and parenting programs, and was learning how to control his temper and
reduce stress and tension. There were no concerns with his video visits but his in-person
visitation was challenging due to distance, poor weather conditions, and lack of
transportation.
In April 2021, the Agency reported that mother had been terminated from a
substance abuse treatment program after she tested positive for cocaine, despite her
adamant denial of having used the drug. She was thereafter also terminated from drug
court. The Agency recommended the court terminate mother’s services, given she had
already been given 11 months of services, nine of which she spent in residential
substance abuse treatment with no success in learning to live substance free.
According to a supplemental report filed later that month, father had completed
parenting classes, but concerns remained about the quality of time spent with the minor
during his two in-person visits. During the first visit, father arrived over an hour late for
the visit and, even then, only after several telephone calls from the social worker during
which father stated he was at the store. During the second in-person visit, the minor sat
on father’s lap, looked around, and quietly played with some toys while father remained
quiet and did not engage the minor. The Agency recommended the court terminate
father’s services due to the lack of time left to reunify.
At the contested dependent review hearing beginning on May 19, 2021, mother
testified that she completed parenting classes and individual counseling. She was,
however, continuing to use alcohol and drugs and admitted she tested positive for both in
March 2021 and again in April 2021.
Social worker Laura Lyman testified that, prior to the February 2021 DUI arrest,
mother was given liberal visitation with the minor, including unsupervised weekend
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overnight visits. Following the DUI, mother’s visitation was reduced and returned to
supervised. Although mother’s visits were positive, Lyman recommended termination of
services because mother was still in a substance abuse treatment program, she tested
positive in April 2021 and again in May 2021, she was terminated from the program, and
there were concerns about mother’s prescription drug use.
Lyman testified father had supervised visits with the minor twice a week, once in
person and once via video. Father completed his parenting classes, was enrolled in
individual counseling, and was attending domestic violence classes. Lyman was
concerned, however, that father continued to minimize the seriousness of the allegations
in the petition. Lyman recommended father’s services be terminated, in part due to the
quality of his in-person visits, and in part due to the difficulty of such visits because of
the various obstacles father faced (i.e., weather conditions, illness, and lack of
transportation). Lyman’s recommendation was influenced by the April 7, 2021 visit
when father arrived in town but spent a good portion of the designated visitation time at a
Walmart store and spent only 30 of the allotted 90 minutes with the minor. She also
noted father’s in-person visits were “sporadic” and, when she attempted to schedule in-
person visits in February 2021, father asked for video visits instead. Lyman testified that,
in the previous months, father had again requested video visits instead of in-person visits.
She had offered father several different transportation options, including train tickets and
offering to drive him from the nearest train station. Lyman’s recommendation was also
influenced by reports that, at times, father was inattentive to the minor even during video
visits. As a result of these observations and reports, Lyman was unsure how bonded the
minor was to father.
Father testified he was participating in individual counseling and a domestic
violence program and had completed his parenting classes. He lived in Oakland and had
to travel to Stockton for visits with the minor. He sold his car in February 2021 due to
financial problems and asked for transportation assistance from Lyman, who provided
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him with Amtrak tickets, which he claimed he used to visit the minor. Father testified he
took the train to Stockton for the April 7, 2021 in-person visit. He claimed he went to the
Agency’s building but left due to an upset stomach. He then went to a store across the
street to look for medicine but then got a Lyft to Walmart to use the restroom, making
him late for the visit. On cross-examination, father changed his testimony and said he got
a ride to Stockton on April 7, 2021. When asked why he was able to make it to court
hearings but not in-person visits, father testified his friend gave him rides or he borrowed
another friend’s car.
The court found that although father always found a way to get to court, he failed
to use the Amtrak tickets to visit the minor. Adopting the Agency’s recommended
findings and orders, the court terminated reunification services for both parents and set a
section 366.26 hearing.
According to the status review reports filed in August 2021, the parents were still
receiving weekly supervised in-person and video visits with the minor. Mother’s visits
with the minor ceased, however, when she entered a substance abuse treatment program
at some point in the summer of 2021. Visits between the minor and A.S. were reportedly
stopped in August 2021 because the minor was exhibiting inappropriate sexual behavior.
In September 2021, the juvenile court dismissed dependency as to the minor’s
sibling, A.S., who was in the care of her father, Mr. S.
C. The 366.26 Hearing
The Agency recommended the court terminate parental rights as to the minor and
free her for adoption. The minor’s caretakers, with whom she had lived since the time of
her removal in May 2020, were resource family approved and wished to adopt the minor.
By the time the section 366.26 hearing commenced on December 3, 2021, the
minor was two years old. Mother testified about her visitation with the minor, stating she
read and sang to the minor, played games with her, and fed and groomed her. Mother
testified the minor called her “Mommy” and would smile and laugh during visits. At the
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end of the visits, she would put the minor in her car seat, blow her a kiss, and tell her she
loved her. The minor would blow mother a kiss back. When asked whether the minor
seemed upset when they parted, mother said, “Sometimes she did.” Mother testified the
overnight visits stopped because she went to her brother’s house and “had a wine cooler.”
Mother further testified, presumably based on the two months she spent with the
children before her February 2021 arrest for DUI, that the minor and A.S. enjoyed visits
together. During those visits, the children would eat, play, and sing together and A.S.
would read to the minor. Visits between the minor and A.S. ceased after an allegation of
inappropriate touching was made regarding the minor. Once A.S.’s dependency case was
dismissed, visits between the siblings stopped and, according to mother, the minor’s
“spirit is now broken.” Mother believed it would be harmful to the minor to cut off her
relationship with A.S. because the minor “knows who she is.”
Social worker Shahid Khan testified he arranged weekly in-person and video visits
between mother and the minor. He also transported mother to the visits. At the start of a
visit, the minor smiled at mother and called her “Mom.” Mother and the minor showed
affection toward one another. The minor was not upset or crying and did not exhibit any
type of anxiety after visits and when mother’s visits were temporarily stopped after she
was arrested for DUI, the minor’s behaviors did not change.
Khan testified he arranged weekly in-person and video visits between father and
the minor. He transported father to and from visits. He testified the minor was a little bit
anxious at the start of the visits and would not immediately approach father. When father
approached the car, the minor would not go immediately to him. Instead, she would go
to Khan and sit in his lap. After about five minutes, the minor would be fine and father
would feed her, carry her, and play with her. Father hugged the minor and she would
sometimes hug him back. Khan did not recall ever hearing the minor refer to father as
“Dad,” and he testified the minor had no difficulty parting with father at the end of the
visits.
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Regarding the minor and A.S., Khan testified the two siblings had visits at
Mr. S.’s residence, which continued even after mother entered substance abuse treatment,
but stopped following a complaint from the caregiver that the minor exhibited
inappropriate sexual behavior. Khan did not receive any reports that the minor was
decompensating or expressing anxiety due to the cancel.lation of sibling visits, nor was
she exhibiting any anxiety or sadness after visits with the parents.
Father testified he had in-person and video visits with the minor, during which he
played and talked with the minor. He testified the minor called him “Dada” and “Dad”
and was never fussy during visits. She wanted to keep playing even when the visit was
over. Father said his bond with the minor was evidenced by the fact that the minor
always gave him her attention and let him know she knew who he was. Father admitted
he canceled some in-person visits and requested video visits because of his schedule and
transportation issues. He confirmed he had no in-person visits during the month prior to
the hearing.
The court found the parents failed to meet their burden to establish that adoption
would be detrimental to the minor and, therefore, neither the beneficial parental
relationship exception nor the sibling relationship exception to adoption applied. The
court terminated parental rights, freeing the minor for adoption.
DISCUSSION
I
Beneficial Parental Relationship Exception
The parents claim the juvenile court erred when it found the beneficial parental
relationship exception to adoption did not apply. They argue the court failed to conduct
the analysis required by In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and considered
improper factors in making its determination. The claims lack merit.
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. . . .
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The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] 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.) There are only limited circumstances that permit the court
to find a “compelling reason for determining that termination [of parental rights] would
be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is the
so-called beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i)
[beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at p. 629.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) For the beneficial parental relationship
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.”
(Caden C., at p. 636.)
The beneficial parental relationship exception to adoption “must be examined on a
case-by-case basis, taking into account the many variables which affect a parent/child
bond. The age of the child, the portion of the child’s life spent in the parent’s custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a parent/child bond.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The factual predicates of the
exception must be supported by substantial evidence, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (Caden C., supra,
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11 Cal.5th at pp. 639-640.) We do not substitute our judgment for that of the juvenile
court as to what is in the child’s best interests. (Id. at pp. 640-641.)
Regarding the first element of the exception, it is undisputed that, when not in
custody or substance abuse treatment, mother maintained regular visitation by video and
in person, eventually graduating to extended, unsupervised overnight visits with the
minor until her visits were suspended as a result of her DUI arrest in February 2021.
Father’s visits, on the other hand, were less regular and consistent. He seldom visited in
person, preferring to visit by video due to his personal schedule, weather conditions, or
transportation issues. Despite the Agency’s offer to transport him to and from visits and
provide him with train tickets as another option, father opted for video visits instead and
only used the train tickets once for a visit, arriving in town on time but showing up an
hour late for the visit. By his own testimony, father was able to appear in person for
court hearings because he was either dropped off by a friend or had access to a car but,
for reasons he could not explain, he was not able to do the same for in-person visits.
Regarding the second element⸺that the child has a substantial, positive,
emotional attachment to the parent such that the child would benefit from continuing the
relationship⸺the record shows the parents loved the minor. However, that fact alone is
insufficient to establish the bond necessary to fend off termination of parental rights. The
minor was just three months old when she was removed from mother’s custody. Father
had spent only half of that time with the minor before mother and the child moved out.
After removal, the minor spent the next two years with her foster caregivers while the
parents’ contact with the minor was limited to visits. During those visits, mother
groomed, fed, played with, and read and sang to the minor, who sometimes called mother
“mama” or “mommy.” Although the minor enjoyed her visits with mother and wanted to
be held by mother, the social worker reported the minor was never upset or anxious when
leaving mother after a visit and did not exhibit any behavioral changes in mother’s
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absence. In the words of the social worker, mother’s relationship with the minor was that
of a “loving, caring relative.”
Father’s visits were primarily by video. He was distracted during the earlier visits
and engaged in inappropriate conversations. In later visits, he was observed to be
preoccupied and not fully focused. He arrived nearly an hour late for one in-person visit
and was inattentive to the minor during another. The social worker observed that the
minor was a bit anxious at the start of each visit with father and took several minutes to
warm up to him. While father testified the minor called him “Dada” and “Dad,” the
social worker could not recall ever hearing the minor refer to father in that manner. And,
like visits with mother, the minor had no difficulty parting with father when visits ended.
Father testified his bond with the minor was evidenced by the fact that the minor
gave him her attention and knew who he was. Mother testified her parental rights should
not be terminated because she was “an active mother of three” who showed up to all of
the hearings and wanted “to be with [her] baby.” In the end, the parents demonstrated a
loving relationship with the minor but provided scant evidence of the substantial bond
necessary for the beneficial parental relationship exception to apply.
Finally, with regard to the third element of the exception, the parents provided
little evidence that termination of the bond between the parents and the minor “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.) As previously discussed, the
minor was removed from the parents at approximately three months of age. Thereafter,
the minor lived with and was cared for by her foster caretakers, where she was by all
accounts thriving. The minor enjoyed her visits with mother and father and generally
reciprocated their affection, but she had no trouble separating from them and returning to
her caregivers, with whom she was also loving and affectionate. She was similarly
unaffected by mother’s absence during periods of custody or substance abuse treatment.
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In short, there was a dearth of evidence from either parent to demonstrate the minor
would suffer detriment if parental rights were terminated.
The parents argue the court failed to conduct a proper analysis as required by
Caden C., supra, 11 Cal.5th 614, and may have considered an improper factor⸺the
nature and extent of father’s parental relationship with the minor⸺in analyzing the
applicability of the beneficial parental relationship exception. We disagree on both
counts. As father properly concedes, the court “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.” (Caden C., at p. 640, italics
added.) Here, the court heard the testimony of both parents and the social workers
regarding the three elements set forth in Caden C., followed by argument from counsel
regarding whether the evidence presented established the three elements and whether or
not the beneficial parental relationship exception applied. Having considered both the
evidence and oral argument, and noting the parents had the burden to show the exception
applied, the court found there was insufficient evidence of detriment to the minor and
thus the exception did not apply. In so finding, the court implicitly found adoption was in
the minor’s best interest and otherwise made no mention of any improper fact or evidence
factoring into its determination.
We conclude the juvenile court did not err in finding the beneficial parental
relationship exception to adoption did not apply.
II
Sibling Relationship Exception
Father contends the juvenile court’s failure to apply the sibling relationship
exception to adoption was error. We disagree.
As previously noted, there are only limited circumstances that permit the court to
find a “compelling reason for determining that termination [of parental rights] would be
detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when
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termination of parental rights would result in “substantial interference with a child’s
sibling relationship, taking into consideration the nature and extent of the relationship,
including, but not limited to, whether the child was raised with a sibling in the same
home, whether the child shared significant common experiences or has existing close and
strong bonds with a sibling, and whether ongoing contact is in the child’s best interest,
including the child’s long-term emotional interest, as compared to the benefit of legal
permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
There is a “heavy burden” on the party opposing adoption under the sibling
exception. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “To show a substantial
interference with a sibling relationship the parent must show the existence of a significant
sibling relationship, the severance of which would be detrimental to the child.”
(In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.) If the court determines that the child
has a significant sibling relationship and would suffer detriment if that relationship were
severed, the court then must weigh the benefit to the child of continuing the relationship
against “the benefit of legal permanence through adoption.” (§ 366.26,
subd. (c)(1)(B)(v); see In re L. Y. L., at pp. 952-953.) As with the beneficial parental
relationship exception to adoption, we do not substitute our judgment for that of the
juvenile court as to what is in the child’s best interest. (Caden C., supra, 11 Cal.5th at
p. 641.)
While by all accounts the minor and A.S. enjoyed each other’s company, the
parents presented no evidence that the siblings’ relationship was so significant that
severance would have been detrimental to the minor. The minor spent just three of the
first months of her life living with A.S. At the time of their initial removal, the minor and
A.S. were placed with different caregivers. Thereafter, the siblings’ interaction consisted
of shared video visits once a week, followed by approximately two months of in-person
and extended overnight visits with mother until mother was arrested for DUI, and finally
weekly in-person visits with Mr. S. Although the Agency had reported in the status
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review reports filed in August 2021, that the minor and A.S. were “well-bonded and have
a good relationship with each other,” visits had to be suspended after the caregiver
reported the minor was inappropriately touching herself and another child. As of the time
of the section 366.26 hearing, visits between the siblings had not resumed. And, contrary
to mother’s assertion that the minor’s spirit was broken, the social worker testified the
cancellation of visits between the minor and A.S. did not cause the minor to exhibit any
anxiety or negative behaviors.
Neither parent provided substantial evidence that it would be harmful to the minor
to sever her relationship with A.S. Mother testified only that she believed it would be
harmful because the minor “knows who [A.S.] is.” Father made no mention of a sibling
bond at all.
The parents bore the burden of demonstrating the sibling relationship exception to
adoption applied and failed to make the requisite showing. (In re Daniel H., supra,
99 Cal.App.4th at p. 813.) Considering all of the evidence, we conclude the juvenile
court properly found the sibling relationship exception did not apply. Therefore, there
was substantial evidence to support the court’s order terminating parental rights and
freeing the minor for adoption.
DISPOSITION
The juvenile court’s judgment is affirmed.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
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