Filed 10/14/22 In re B.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 B.M., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
A165003
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. JD-031579-01)
K.M.,
Defendant and Appellant.
Mother appeals an order terminating her parental rights and placing
her now three-year-old daughter, B.M., for adoption. She contends the
juvenile court erred in concluding there was no beneficial parental
relationship justifying an exception to the statutory preference for adoption.
(Welf. & Inst. Code,1 § 366.26, subd. (c)(1)(B)(i).) We find no prejudicial error
and affirm the order.
Background
In September 2019, the Alameda County Social Services Agency (the
agency) filed a petition alleging that then 10-month-old B.M. was at
1 All statutory references are to the Welfare and Institutions Code.
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substantial risk of harm pursuant to section 300 subdivisions (b) and (j).2
The petition alleged that the child was born with a cleft lip and palate and
that, as a result of mother’s failure to provide necessary medical care, the
child was severely malnourished; the family home was infested with fleas;
and mother is involved in a relationship characterized by domestic violence.
The petition also alleged that mother’s four older children are in a foster
home “due to [her] extensive domestic violent relationships . . . , extensive
history and use of methamphetamine and unsuitable living conditions.” 3 The
child had been removed from mother’s care and placed in the same foster
home.
In October 2019, the court found the allegations of the petition true and
B.M. was found to be a child described by section 300, subdivision (b), (g), and
(j). B.M. was continued in her foster placement and reunification services
were ordered for mother.
Mother received 18 months of reunification services. The agency’s
review hearing report indicated that mother is “consistently prepared when
she shows up for visits and is engaged with [her daughter]” but also noted
several late or missed visits. Mother’s communication with the agency and
participation in services was also mixed. The agency reported that mother
was not in communication with the agency from November 2020 to January
2021. She missed 14 drug tests from October to January but the results for
the tests she completed were negative. She participated regularly in
2The petition includes an allegation under section 300, subdivision (g)
that the identity and whereabouts of the father are unknown. B.M.’s father
was later identified and he participated in the proceedings. Father did not
file a notice of appeal.
B.M.’s siblings were detained in September 2019 following
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jurisdictional findings made in August 2018. Mother’s parental rights as to
these children were terminated in September 2020.
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domestic-violence counseling but did not participate in substance-abuse
counseling.
In June 2021, at the 18-month review hearing, the court terminated
mother’s reunification services and set a section 366.26 hearing.4
The agency’s report submitted in advance of the section 366.26 hearing
indicated that in the preceding year, mother visited with her daughter twice
a week for several hours at first and later once a week for 4.5 hours to
accommodate the child’s preschool schedule. While visits were occasionally
missed, there are no unexplained gaps in visitation during that period. Prior
reports indicated that B.M. had “a positive relationship and bond with her
mother and seems to enjoy their visits” and the section 366.26 report
described mother as an “important person in her life.” The report also
indicated, however, that “[B.M.] looks forward to visits with her mother, but
becomes distressed when the plan changes at the last minute, and this
impacts her relationship with [mother].” The report concluded, “There are no
known barriers to permanency. [B.M.] has been determined to be adoptable.
She appears to be thriving in the proposed adoptive home where she has been
placed since she was nine months old. Her special medical needs are being
addressed and the proposed adoptive parents have been consistently
attentive to her physical, developmental and emotional needs. The proposed
adoptive parents actively facilitate [B.M.’s] relationship with her four older
siblings who continue to reside in the home.”
On February 22, 2022, at the section 366.26 hearing, the court found
clear and convincing evidence that B.M. was likely to be adopted, identified
4 Mother did not appear at the 18-month review hearing.
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adoption as the permanent plan, found no exception applied, and terminated
mother’s parental rights.5 Mother timely filed a notice of appeal.
Discussion
The purpose of a section 366.26 hearing is “to select and implement a
permanent plan for the child after reunification efforts have failed. [Citation.]
At that stage, ‘the welfare agency’s focus shifts from monitoring the parents’
progress toward reunification to determining the appropriate placement plan
for the child.’ [Citation.] The dependency statutes embody a presumptive rule
that, after reunification efforts have failed, parental rights must be
terminated in order to free a child for adoption. [Citation.] However, the
statutes provide an exception where ‘[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.’ ” (In re J.D. (2021) 70 Cal.App.5th 833, 851–852;
§ 366.26, subd. (c)(1)(B)(i).)”
To establish this exception, the parent must show by a preponderance
of the evidence “(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.” (In re Caden C. (2011) 11
Cal.5th 614, 631 (Caden C.), italics omitted.) As to the first element, the
juvenile court considers whether the parent visits consistently, “taking into
account ‘the extent permitted by court orders.’ ” (Id. at p. 632.) As to the
second element, the court assesses whether “ ‘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.’ ” (Id.
5 Mother had not appeared at a prior hearing in December at which the
court found that B.M. was adoptable, but she appeared late at the
February 22, 2022 hearing at which parental rights were terminated.
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at p. 636.) “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.) When evaluating detriment, the court does not
compare “the parent’s attributes as custodial caregiver relative to those of
any potential adoptive parent(s).” (Id. at p. 634.) Rather, the question is
“whether losing the relationship with the parent would harm the child to an
extent not outweighed, on balance, by the security of a new, adoptive home.”
(Ibid.) The permanency planning hearing is “not a contest of who would be
the better custodial caregiver” (ibid.) and a “parent’s continued struggles
with the issues leading to dependency are not a categorical bar to applying
the exception.” (Id. at p. 637.)
On appeal, we apply a hybrid standard of review. (Caden C., supra, 11
Cal.5th at p. 639.) We apply a substantial evidence standard to the court’s
findings on the first two elements and review the court’s determination on
the final element, whether the termination of parental rights would be
detrimental to the child, for abuse of discretion. (Id. at p. 640.)
Initially, mother contends the court violated her due process rights by
failing to engage in the three-part analysis set forth in the statute and
clarified in Caden C. Mother faults the court for failing to make express
findings on each of the three elements and for offering a “terse” analysis on
the detriment element. The court’s ruling is as follows: “As it relates to
arguments as to why not to terminate parental rights, I don’t find that there’s
any evidence that the alleged bond or relationship between the mother and
[daughter] . . . is so strong that it would be most important to keep that
relationship in place, versus the stability and permanence that grows from
having an adoptive family. [¶] And so honestly as I just said, . . . I remember
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when [B.M.] was born. And she’s known her prospective adoptive parents
most of her life because her siblings have been with this family as well. And I
do think that it’s important to say that all of the siblings are in the same
home, the sibling group with this family that is willing to adopt each and
every one of them. [¶] So I don’t see that there’s an exception as it relates to
termination of parental rights.”
Contrary to mother’s argument, the juvenile court was not required to
“recite specific findings relative to its conclusions regarding any or all of the
three elements of the exception.” (In re A.L. (2022) 73 Cal.App.5th 1131,
1156.) Although the court’s statements in support of its conclusion are
limited, nothing in the record supports mother’s suggestion that the court
failed to engage meaningfully in the “carefully calibrated process” that must
be performed before terminating parental rights. (Caden C., supra, 11
Cal.5th at p. 625.) The court was very familiar with the case and indicated
that it had read and considered the various reports submitted in advance of
the hearing. The court expressly indicated that “[t]ermination of parental
rights is based on the findings made herein, and on the factual basis
contained in the reports prepared by social services for this hearing, and
includes that the court finds no exception to termination of parental rights
exist.”
Nonetheless, we emphasize that by “[g]oing step by step through the
prescribed process, the court can somewhat more easily accomplish the
statutory goals of protecting the parent and child from an overhasty
termination of their relationship while ensuring that the child is
expeditiously placed in a safe and stable home.” (Caden C., supra, 11 Cal.5th
at p. 625.) Likewise, “a statement by the trial court of its findings (or reasons)
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for its decision is helpful in conducting appellate review.” (In re A.L., supra,
73 Cal.App.5th at p. 1156.)
The record is somewhat mixed regarding mother’s visitation and bond
with her daughter. Nonetheless, for purposes of this appeal, we think it fair
to assume that mother satisfied the first two elements.
Mother failed to establish, however, that terminating parental rights
would harm B.M. “to an extent not outweighed, on balance, by the security of
a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 634.) B.M was nine-
months old when removed from her mother’s care. Since her removal, she has
been placed with her siblings in a home with foster parents who are ready
and approved to adopt her. The record indicates that while she had a positive,
enjoyable relationship with her mother, the lack of predictability in that
relationship caused B.M. distress. The trial court reasonably concluded that
adoption by the current caregivers would provide B.M. with the predictability
and stability she needs, and that these benefits outweighed any harm B.M.
would suffer from the termination.
Contrary to mother’s argument, the court did not rely on improper
factors in rejecting the parental-benefit exception. At the conclusion of the
hearing, after the termination of parental rights, the court stated, “I would
just also say that the caregivers, and I think [mother] would probably be in
agreement with this as well, have really gone out of their way to make sure
family relationships are supported. And I just don’t see them not doing that.
All of these kids know their parents. And so they are – I said it a million
times. [Mother] has said it as well. You know, when her dad passed away I
felt like the caregivers were grieving with her. We all were grieving with her.
And there’s a photo of the caregivers on my bench because I find them to be
super human folks, and they love babies like crazy, and they respect
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biological family as well. So my expectation is that that will continue. I can’t
make an order to that effect, but my gut says that that will continue for sure,
as long as it’s good for the kids. And I think that’s all they really want, is
whatever is good for the kids.” The court’s admiration of the prospective
adoptive parents and its expectation that they would permit a continued
relationship between mother and B.M. are not factors that may be considered
in determining whether the exception to adoption applies. (See In re J.D.,
supra, 70 Cal.App.5th at p. 866 [“The Supreme Court made clear, among
other things, that the juvenile court engaged in this challenging weighing
task is not permitted to consider the possibility of any postadoption contact
between parent and child.”].) However, the court made its remarks after
having reached its decision. Its subsequent comments were not an
explanation of the reasons for its decision but appear to have been meant to
comfort mother, recognizing her genuine affection for her daughter. The
court’s decision was based on appropriate considerations and may not be
disturbed because of the court’s solicitude.
Disposition
The order terminating parental rights is affirmed.
POLLAK, P. J.
WE CONCUR:
BROWN, J.
GOLDMAN, J.
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