No. D071776.

In re D.L., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.C., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Attorney(s) appearing for the Case

Joseph T. Tavano , under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery , County Counsel, John E. Philips , Chief Deputy County Counsel, and Eliza Molk , Deputy County Counsel, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Mother appeals from juvenile court orders terminating her parental rights to her two minor children and choosing adoption as their permanent plan. (Welf. & Inst. Code, § 366.26.)1 She contends we must reverse the orders because the court erred in finding the beneficial parent-child relationship exception to adoption did not apply. (Id., subd. (c)(1)(B)(i).)

We conclude there is substantial evidence mother had a beneficial parental relationship with the children. Nonetheless, we conclude the court did not abuse its discretion in determining the relationship did not provide a compelling reason for finding that termination of her parental rights would be detrimental to the children. We, therefore, affirm the orders.



The children became court dependents because of their parents' domestic violence and substance abuse.2 The court placed them in separate foster homes with relative caregivers. Mother's participation in reunification services eventually led the court to place the children back in her care. However, four months later, the court removed them from her care and placed them with their former foster parents because she had stopped participating in services, lost her job, did not have stable housing, was using marijuana to self-medicate, and was seeing father in the children's presence even though she and father were not permitted to be together around the children. The court subsequently terminated the parents' reunification services and set a hearing to select and implement a permanent plan for the children.

When the children were not in mother's care, mother regularly visited them. During the visits, mother played with the children, attended to their needs, and appropriately addressed any problematic behaviors. The children enjoyed the visits and were sad when the visits ended. Consequently, the San Diego County Health and Human Services Agency (Agency) acknowledged the children may have difficulty separating from mother.

Throughout most of the dependency proceedings, both children displayed concerning behavior. The older child displayed anger, aggression, defiance, frustration, avoidance, and apathy in school and in his after school program. The younger child rubbed a pillow or stuff animal against her vagina and engaged in humping behavior when she lay down at naptime.

After the court terminated mother's and father's reunification services, mother became pregnant and she and father moved to another state, causing her visits with the children to stop. The younger child remained in the same foster home, where she was happy, well-adjusted and had relative caregivers willing to adopt her. Because the older child's foster parent did not want to adopt him or be his legal guardian, the court placed him in a new foster home with relative caregivers willing to adopt him. The older child adjusted well to the new home and his disposition improved after the move. The two sets of relative caregivers have a strong relationship with one another and are committed to helping the children maintain a sibling relationship despite their being in separate homes.

The parties stipulated the older child would testify he was doing well in his current relative placement, but his first choice was to live with mother and father. He would also testify he missed mother and, when they lived together, he felt safe with her and she made sure he was fed. He did not know whether he would feel sad if he no longer saw her.

The court found by clear and convincing evidence adoption was in the children's best interest, the children were likely to be adopted, and none of the exceptions to adoption in section 366.26, subdivision (c)(1)(B) applied. The court terminated mother and father's parental rights and ordered adoption as the children's permanent plan.




"After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a `placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]' [Citation.] The purpose of a section 366.26 hearing is to `provide stable, permanent homes for' dependent children. [Citation.] At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care." (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, the court must select adoption as the permanent plan unless the court finds a compelling reason for determining termination of parental rights would be detrimental to the child under any of the specified statutory exceptions. (§ 366.26, subd. (c)(1)(A), (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.) The parent has the burden of establishing one of the specified statutory exceptions applies. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a section 366.26 hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)

The beneficial parent-child relationship exception, upon which mother relies, applies if termination of parental rights would be detrimental to the child because mother has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Courts have interpreted the phrase "`benefit from continuing the ... relationship'" "to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child 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." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936.)

A parent asserting this exception cannot meet her burden by showing frequent, friendly and loving contact with the child or even the existence of a parent-child bond. (In re L.S. (2014) 230 Cal.App.4th 1183, 1200; In re J.C. (2014) 226 Cal.App.4th 503, 529; In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) Rather, the parent must show the parent serves a parental role for the child of such quality that severing the parent-child relationship would harm the child to the point of outweighing the benefits of adoption. (In re L.S., supra, at p. 1199; In re C.F., supra, at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

We apply the substantial evidence standard of review to the determination of whether a beneficial parental relationship exists. We apply the abuse of discretion standard of review to the determination of whether there is a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)


While the Agency neither disputes nor concedes mother had a beneficial parental relationship with the children, there is substantial evidence mother had regular, loving visits with the children throughout the dependency proceedings, she acted as their parent during the visits, the children were sad when the visits ended, and the older child would prefer to live with her if given the choice. Nonetheless, there is also substantial evidence the quality of mother's relationship with the children suffered significantly because of her failure to prioritize their needs over the maintenance of her domestic-violence-fraught relationship with father.

Since 2005, the parents' domestic violence, which was sometimes fueled by substance abuse, prompted 31 child protective services referrals, a failed voluntary services case, and two dependency proceedings. The resulting turmoil permeated much of the children's lives, leading them both to exhibit detrimental behaviors. There is no basis in the record to reasonably infer this turmoil would diminish if the court chose not to terminate mother's parental rights and selected a different permanent plan for the children.

In contrast to the prospect of living in perpetual turmoil, each child has a set of relative caregivers committed to the child's adoption and to maintaining the children's sibling relationship. The children are doing well in their respective prospective adoptive homes and the disposition of the older child, who has arguably experienced the greatest amount of chaos in his life, has noticeably improved. Under these circumstances, we cannot conclude the court abused its discretion in determining there was no compelling reason for finding termination of the mother's parental rights would be detrimental to the children.



The orders are affirmed.

NARES, J. and AARON, J., concurs.


1. Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
2. The older child had previously been a court dependent because of the parents' domestic violence.


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