 

Filed 7/31/13 In re C.C. CA4/2

                            NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                          FOURTH APPELLATE DISTRICT

                                                           DIVISION TWO



In re C.C., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                                         E057877

             Plaintiff and Respondent,                                                (Super.Ct.No. J237172)

v.                                                                                    OPINION

S.C. et al.,

             Defendants and Appellants.




             APPEAL from the Superior Court of San Bernardino County. Christopher

Marshall, Judge. Affirmed.

             Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and

Appellant S.C.




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       Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant

and Appellant C.M.

       Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel,

for Plaintiff and Respondent.

                                    I. INTRODUCTION

       Defendants and appellants C.M. (Mother) and S.C. (Father) are the parents of

C.C., a girl born in October 2010. They appeal the juvenile court orders terminating their

parental rights to C.C. and placing her for adoption, claiming the court erroneously

refused to apply the parental benefit exception to the statutory preference for adoption

and select long-term guardianship over adoption as C.C.’s permanent plan. (Welf. &

Inst. Code, § 366.26, subd. (c)(1)(b)(i).)1 We find no error and affirm.

                                    II. BACKGROUND

       C.C. is the youngest of Mother’s three children from different fathers and Father’s

only child. In January 2011, when she was three months old, C.C. was taken into

protective custody based on a referral alleging she was being severely neglected. She

was found “extremely hungry” and below the 5th percentile for height, weight, and head

circumference.

       Both parents had difficulty understanding C.C.’s needs. Numerous times they had

taken C.C. to the emergency room complaining she would not eat, but when hospital staff

                                                  
            1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

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fed her she would eat without difficulty. In addition, neither parent appeared to

understand the importance of keeping C.C.’s medical appointments. C.C. quickly gained

weight in her foster home.

       Mother was born in 1981 and has mild mental retardation. She was an Inland

Regional Center client in January 2011 and was receiving supplemental security income.

She also suffered from depression and was not taking her prescribed medication. She had

a tendency to blame others for her problems and had much difficulty comprehending

questions. She denied having a substance abuse problem, but admitted the fathers of her

older children were drug users. Mother and Father lived together and had domestic

violence problems.

       Father was born in 1984. He took medication for attention deficit/hyperactivity

disorder as a child and attended special education classes. When in high school he was

arrested for assaulting his stepfather. He was being evaluated for supplemental security

income. In January 2011, he was on probation for possessing methamphetamine, but he

denied having a substance abuse problem, even though he told a police officer in July

2010 he had been using methamphetamine for some time.

       In August 2009, Mother’s older children, K.S., then age 10, and A.C., then age

two, were removed from Mother’s care in Los Angeles County and placed in foster care

due to similar allegations of neglect. K.S. suffered from juvenile rheumatoid arthritis,

and Mother had not been taking her to her medical appointments or consistently

administering her medication. As with C.C., Mother did not appear to understand the


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importance of keeping K.S.’s medical appointments or seeking appropriate medical care

for her.

       Between 2007 and 2009, there were multiple referrals of general neglect involving

the girls, and Mother twice received voluntary family maintenance services before the

girls were placed in foster care. The Los Angeles County case was transferred to San

Bernardino County when Mother moved to Upland in October 2010. Both parents were

ordered to randomly drug test in the Los Angeles County case.

       The parents were awarded reunification services for C.C., but the social worker

believed their prognosis for reunification was poor. A June 2011 psychological

evaluation concluded neither parent was capable of safely and competently parenting

C.C. at that time. Mother suffered a delusional disorder based on her belief that others

could read her mind and control her thoughts. Father was “overwhelmed by the

extremely demanding parental requirements associated with fathering [C.C.]” The

parents were ultimately unable to benefit from their services, which were terminated in

August 2012.

       Both parents continued to have difficulty processing information, including

written instructions, and following through appropriately. For example, both parents

stopped drug testing because Mother thought they no longer needed to drug test, but

neither parent verified that information with plaintiff and respondent San Bernardino

County Children and Family Services (CFS). Each parent then testified positive for

methamphetamine in July 2012. They also continued to have domestic violence


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problems. Mother was also unable to prioritize or plan her schedule, despite a plethora of

assistance from numerous service providers, including Inland Regional Center.

          By December 2012, C.C. was two years old and had been living with the same

foster family since January 2011. Her speech development was slow and she was not yet

potty trained, but she had no medical concerns. The foster parents wanted to adopt her.

She was very bonded to her foster parents and looked to them for comfort and support.

A.B., then age four, was living in the same home, and the foster parents were in the

process of adopting A.B. K.S., then age 12, was living in another foster home and did

not want to visit her younger sisters.

          The foster parents had been supervising the parents’ visits with C.C. since January

2011. The parents regularly visited, but it had been difficult for the foster parents and

CFS staff to help the parents make their visits “meaningful and purposeful” due to their

cognitive and mental health deficits and substance abuse. The visits were “mainly play

dates” for C.C. C.C. did not rely on either parent for comfort or guidance during the

visits. The social worker did not believe termination of parental rights would be

detrimental to C.C.

          Neither parent was present at the section 366.26 hearing in January 2013. They

called and said they would be late, but did not arrive by the time the matter was called for

hearing at 2:36 p.m. The court admitted the December 19, 2012, section 366.26 report

into evidence, but neither parent offered any affirmative evidence and no witnesses were

called.


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       Father’s counsel asked the court to consider guardianship over adoption because

he had “never seen a guy that’s more devoted to the child than [Father].” Father’s

counsel submitted that Father was, “from every measure . . . a devoted father to his child

and . . . would be beneficial in the child’s life . . . .” The court found C.C. was adoptable,

terminated parental rights, and selected adoption as her permanent plan. Without

discussing the parental benefit exception specifically, the court noted that no exceptions

to the adoption preference applied. The court also noted that the parents had relapsed

into drug use over the previous several months and had not been regularly visiting C.C.

                                     III. DISCUSSION

       The parents each claim the juvenile court abused its discretion in refusing to apply

the parental benefit exception at the section 366.26 hearing. We find no error.

A. Applicable Law

       At a section 366.26 permanency planning hearing, the juvenile court determines a

permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38,

50.) Permanent plans include adoption, guardianship, and long-term foster care. (In re

S.B. (2008) 164 Cal.App.4th 289, 296.) “Adoption, where possible, is the permanent

plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)

       Adoption involves terminating the legal rights of the child’s natural parents, but

guardianship and long-term foster care leave parental rights intact. (In re Autumn H.,

supra, 27 Cal.App.4th at p. 574.) “Guardianship, while a more stable placement than

foster care, is not irrevocable and thus falls short of the secure and permanent future the


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Legislature had in mind for the dependent child.” (In re Lorenzo C. (1997) 54

Cal.App.4th 1330, 1344.)

       To avoid adoption and termination of parental rights at a section 366.26 hearing, a

parent has the burden of showing one or more of the statutory exceptions to termination

of parental rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply. (In re

Scott B. (2010) 188 Cal.App.4th 452, 469; In re Celine R. (2003) 31 Cal.4th 45, 53.)

These exceptions “merely permit the court, in exceptional circumstances (In re Jasmine

D. [(2000) 78 Cal.App.4th 1339,] 1348-1349), to choose an option other than the norm,

which remains adoption.” (In re Celine R., supra, at p. 53.)

       The parental benefit exception applies when two conditions are shown: the parent

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), italics added; In re Angel

B. (2002) 97 Cal.App.4th 454, 466.) In order to show that the child would benefit from

continuing the relationship with the parent, the parent “must do more than demonstrate

. . . an emotional bond with the child”; the parent “must show that he or she occupies a

‘parental role’ in the child’s life.” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

       The parent must also show that the parent-child 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


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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.” (In re Autumn

H., supra, 27 Cal.App.4th at p. 575.)

       “‘The balancing of competing considerations must be performed on a case-by-case

basis and take into account many variables, including 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. [Citation.] When

the benefits from a stable and permanent home provided by adoption outweigh the

benefits from a continued parent/child relationship, the court should order adoption.’

[Citation.]” (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.) In other words,

“[i]f severing the existing parental 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.’

[Citation.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)

B. Standard of Review

       Appellate courts have traditionally applied either the substantial evidence test or

the abuse of discretion test in considering challenges to juvenile court determinations that

the parental benefit exception did not apply. (In re Scott B., supra, 188 Cal.App.4th at p.

469.) There is little, if any, practical difference between the two. (Ibid.)




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       As explained in In re Jasmine D.: “‘[E]valuating the factual basis for an exercise

of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . .

Broad deference must be shown to the trial judge. The reviewing court should interfere

only “‘if [it] find[s] that . . . no judge could reasonably have made the order that he did.’

. . .”’ [Citations.]” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)2

C. Analysis/Mother’s Claims

       Despite the court’s comment at the section 366.26 hearing that the parents had

recently stopped visiting C.C., the parties agree the parents maintained regular visitation

and contact with C.C. throughout the proceedings. The critical question is whether the

juvenile court abused its discretion in implicitly concluding that the parental benefit

exception did not apply because C.C. would benefit more from adoption than from

maintaining any relationship with the parents.

       Mother argues she “made tremendous efforts to overcome her limitations and gain

sufficient parenting skills to care for her daughter.” Thus she argues it would be

“detrimental to deprive [C.C.] of a loving, sincere parent who never intentionally harmed

her in any way.” This argument is unavailing because it does not address whether C.C.

                                                  
            2 More recently, courts have applied a composite standard of review, recognizing
that the parental benefit exception entails both factual and discretionary determinations.
(In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [substantial evidence standard
applies to factual determination whether a beneficial relationship exists, and abuse of
discretion standard applies to discretionary determination whether there is a compelling
reason to apply the exception]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [same].)
Here, however, the facts are essentially undisputed and the question is whether the court
abused its discretion in determining that the parental benefit exception did not apply.

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would benefit more from being adopted than from continuing her relationship with

Mother or Father.

       Indeed, there was no evidence that C.C. would benefit more from continuing her

relationship with either parent than from being adopted. Nor was there any evidence that

terminating parental rights would be detrimental to C.C. C.C. was only two years old at

the time of the section 366.26 hearing, and was removed from the parents’ custody when

she was only three months old. Neither parent forged a parental relationship with her

during their many supervised, weekly visits over the course of the next two years. C.C.

did not look to either parent for comfort or guidance during visits, and did not share an

emotional attachment with either parent. There was therefore no compelling reason for

the court to apply the parental benefit exception and choose a less restrictive form of

placement over adoption, such as long-term guardianship.

       Mother points out that In re Jose C. (2010) 188 Cal.App.4th 147 involved a

mother and son who were both severely developmentally delayed. The juvenile court

placed the son for adoption even though his foster mother believed it was important for

him to maintain a relationship with his mother. (Id. at p. 154.) In re Jose C. does not

assist Mother’s argument because the appellate court did not disturb the court’s

adoptability finding or permanent placement, and is distinguishable in any event because

the son was eight years old and had a long-standing, albeit “peer-like” relationship with

his mother. (Id. at p. 152.) C.C. was only two years old, had no significant emotional




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attachment with either parent, and would not suffer detriment if parental rights were

terminated.

       Lastly, Mother argues the court erred in failing to consider long-term guardianship

over adoption, citing In re Brandon C. (1999) 71 Cal.App.4th 1530. Not so. In re

Brandon C. is inapposite because the juvenile court there found that the parental benefit

exception applied based on the children’s emotional attachment with their mother. (Id. at

p. 1534.) Father’s counsel specifically asked the court to consider guardianship over

adoption and apply the parental benefit exception based on Father’s dedication to C.C.

Again, however, C.C. did not have a significant emotional attachment with either parent,

and the court reasonably determined she would benefit more from adoption than from

continuing a relationship with either parent. The court was thus required to select

adoption over long-term guardianship as C.C.’s permanent plan. (§ 366.26, subd. (c)(1).)

D. Analysis/Father’s Arguments

       Father claims the orders terminating parental rights and placing C.C. for adoption

must be reversed because the juvenile court confused the case with the one just before it,

and terminated parental rights based on its misunderstanding that the parents did not

maintain regular visitation with C.C. At the section 366.26 hearing, the court announced

it was “terminating parental rights and setting a hearing to determine a permanent plan of

adoption or guardianship. . . .” At that point, Father’s counsel reminded the court that

this was the section 366.26 hearing and the court was to determine a permanent plan for

C.C. The court said: “ Excuse me. I was thinking of the last—yes. Never mind. Just


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thinking of the last case I just had.” The court then noted that “in the last few months the

parents have relapsed into substance abuse and they have also not been visiting regularly

. . . .”

           On this basis, Father argues the court mistakenly believed the parents had not

maintained regular visitation and contact with C.C., and the factual error is prejudicial.

We disagree there was any prejudice. To be sure, the evidence showed, and the parties

agree, that both parents maintained regular visitation and contact with C.C. But like

Mother, Father does not explain how C.C. would benefit more from maintaining her

relationship with either parent than she would benefit from being adopted. For this

reason, the court’s mistaken suggestion or finding that the parents failed to maintain

regular contact with C.C. was not prejudicial under any standard. Finally, the court’s

comments as a whole show it knew it was dealing with C.C.’s case.

                                       IV. DISPOSITION

           The orders terminating parental rights and placing C.C. for adoption are affirmed.

           NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                  KING
                                                                                             J.


We concur:

McKINSTER
                    Acting P. J.

RICHLI
                              J.
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