Filed 4/1/21 In re L.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE In re L.C., et al., Persons Coming Under the Juvenile Court Law. G0594 21 (Super. Ct. Nos. 18DP0018 & 18DP0019)

O P I N I O N ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,

v.
J.W., Defendant and Appellant.

Appeal from orders of the Superior Court of Orange County , Dennis J. Keough , Judge. Affirmed

.

Suzanne Davidson , under appointment by the Court of Appeal , for Defendant and Appellant

.

Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre , Deputy County Counsel, for Plaintiff and Respondent

.

No appearance s for the Minor s

.

* * *2 Jennifer W . ( Mother ) appeal s an order terminating her parental rights , arguing the juvenile court erred by not apply ing the parental benefit exception to avoid
the termination . ( Welf. and Inst. Code, § 366.26, subd.(c)(1)(B)(i) ; a ll further statutory
references are to the Welfare and Institutions Code .) We discern no error and affirm the court’s order.
I
F ACTS AND P ROCEDURAL H ISTORY A. The M inor

s’ Juvenile C

ourt Dependency In January 201 8 , the juvenile court detained Mother’s two children , then

two

- year

- old L.C. and one

- year

- old A.C., after they were found unsupervised with open wounds, severe rashes, and an infection caused by leaving the children in urine

- soaked diapers. Mother acknowledged domestic v iolence between her and the children’s father

a nd with Mother’s previous partner. The Orange County Social Services Agency (SSA) took the children into protective custody and filed a dependency petition, alleging both Mother and the children’s father had failed to provide for the children’s basic needs. The following month, SSA placed the children together with the same foster parents

.

Mother ’s petition alleged she “ ha[d] a history of substance abuse,” including methamphetamine, that was “an unresolved problem.” The petition specified that “multiple paternal family members who resided with the mother and the [] father . . . suspected that both parents were abusing dr ugs.” The father of Mother’s older child, L.C. and A.C.’s older half

- sibling , “ reported that [M]other had an extensive history of methamphetamine abuse.” Five months after the petition was filed, Mother , then 28 years old, claim ed drug testing was unnecessary and that she had not used drugs since her
adolescence. T he juvenile court found the allegations in SSA’s petition to be true.

In its June 2018 dispositional order , the juvenile court continued L.C. and
A.C. ’s placement s with t heir foster parents , and authorized SSA to provide family
reunification services for Mother based on a case plan she agreed to follow a week after3

SSA detained the children

. Under the plan, Mother would continue her supervised visit s with the children , but SSA was given the authori ty to liberalize visitation . Mother agreed to participate in a parenting class , anger management , and random drug testing, where “all drug [and] alcohol tests [were] to be negative” and a missed drug test w ould be considered a positive drug test. At the time, Mother had missed at least nine visits with
L.C. and A.C. , had not reported for drug testing, and confronted the children’s foster mother about the contents of SSA’s reports to the court.

Four months later, Mother gave birth to M.C., who was born with amphetamine and methamphetamine in her blood system. Mother tested negative and denied using drugs. SSA took M.C. into protective custody and placed the child in the

same foster family as L.C. and A.C. 1 Before the juvenile court ’s six month review hearing , SSA conducted a Child and Family Team meeting with social workers, the children’s foster parents, and Mother, who began participating in drug patch testing.

Nine mont hs later , in August 2019 , the juvenile court terminated
reunification services for Mother

. The court found SSA had offered Mother reasonable
services. Although her participation had been moderate , in the four months leading up to court’s ruling, Mother t ested positive for drug use four times

— three times for opiates and once for both opiates and methamphetamines

— and on three other occasions failed to provide patches that could be tested

. The court noted when Mother failed to explain the
first positive test result , SSA cancelled its plan to liberalize Mother’s visitation with her children to unsupervised visits

. T he court set a hearing under section 366.26 to determine a permanent plan for L.C. and A.C

. ( .26 hearing )

.

1 We focus on children L.C. and A.C. and do not discuss facts about M.C . that are not material to our disposition. Nor do we discuss the children’s father’s involvement in this
case , unless material to Mother’s claims. T he court later terminated his access to family reunification services and he is not a party to this appeal.4

B. The .26 Hearing

S SA senior social worker Emmanuel Rodriguez filed a report ahead of the .26 hearing recommend ing the juvenile court find the children adoptable and terminate Mother’s parental rights . On the children’s prospective adoption placement, the report
noted L.C. and A.C., then nearly four an d three years old, had been living with their foster parents and now the prospective adoptive parents for the past 21 months and had bonded with the parents, who “welcomed and incorporated the[ ] children into their family life and routine.” SSA reported the children were “ doing well ” and “ appear[ed]
comfortable ” in the home , and went to “ their [ prospective adoptive ] parents for their needs.” SSA reported L.C. “expressed that she e njoy[ed] livi ng with [the ] parents , ” who “demonstrated their commitment to [] care [for the] well

- being of the children and . . . [were] willing to provide permanency for the children through [] adoption.” In supplemental reports spanning nine months leading up to the .26 hearing , SSA report ed the children were “continu[ing] to do great and thriv[ing]” in their prospective adoption
home. The juvenile court conducted its .26 hearing for L.C. and A.C. together
with its status review for M.C., over several days beginning at the end of August 2020.
The court received into evidence social worker Rodriguez ’s .26 hearing report and its six supplemental reports. It also heard testimony from Mother and Rodriguez

.

1. Rodriguez’s Testimo ny Rodriguez testified the last visit he personally had observed between
Mother and her children occurred in March 2020, just before the COVID

- 19 pandemic began. Rodriguez recalled Mother brought food to her children and change d their diapers, and he had “no concerns” a bout her visits , which he believed were consistent and positive for the children. Rodriguez recalled the children hugged and kissed Mother,
stated they loved her, and shared a “rea lly strong bond” with her.

Rodriguez confirmed the recommendation in his initial .26 report to5

terminat e Mother’s parental rights . He did not believe termination would be detrimental

to either L.C. or A.C

. based on t he children’s age s and other factors , includ ing how long they had been with their prospective adoptive parents , the Mother’s lack of progress in following her case plan, and her visits with the children

. Rodriguez testified the children
referred to both Mother and the ir prospective adoptive parents as their parents and, although the children called Mother “Mommy,” L.C . once referred to Moth er by her legal name, which Mother redirected. Rodriguez did not recall any direct observation or report
that either L.C. or A.C. exp ressed sad ness or cried at the end of Mother ’s visits

.

Rodriguez testified his permane n t plan recommendation included “balanc[ing]

. . . [the value of] permane ncy for [ L.C. and A.C.] with maint a ining a relationship with [Mother] .” Rodriguez agreed t hat, in general, children could experience

trauma when learning they wo uld no longer see their biological parent , but disagreed that this would happen to L.C. or A.C. Rodriguez testified Mother had not been responsible
for the children’s “day

- to

- day” care during the entire dependency and r easoned that , although L.C. had a “really strong bond” with Mother , the child also shared a “ very strong ” bond with her prospective adoptive parents , who the child considered “mom and dad and family.” F or the younger child, A.C., Rodriguez added the prospective adoptive father taught the child how to ride a tricycle and currently was teaching her how to swim

. Rodriguez testified that in every compliance visit with the parents, he observed the
children d isplay affection toward the parents and appeared “very comfortable in the household.” Rodriguez further explained his recommendation was partly based on Mother’s failure to progress with her case plan on drug use

. Rodriguez confirmed
Mother had been advised that if she used drugs SSA would not liberalize visits with her children, and noted SSA canceled a 2019 plan to liberaliz e visitation from unsupervised to supervised visits because of Mother’s positive drug test results . Rodriguez testified
M other had not complied with her case plan solely because of her drug use, which she6

continued to deny

.

2. Mother’s Testimony Mother testified that when she visited her children she “provide [d] everything as far as diapers, food, snacks, [and] toys.” On parenting, Mother testified she
“correct [ed] ” and “redirect [ed] them to do the right thing.” She also asserted L.C. and A.C. expressed their desire to remain with Mother at the end of their visits and that L.C.
cried when leaving

.

Mother testified she had benefited from the re unification services SSA
offered , and discussed programs she completed

. She identified topics she studied , such as substance abuse, “different forms of parenting,” “emotional reasoning,” “toxic relationships,” and “trauma. ” She l earned the importance of having a support system, and testified she had one, especially through her family.

On drug use, Mother claimed she “ ha [ d ] been sober since . . . [October
2018 ] , three days before [ M.C. ] was born.” Mother claimed she had acknowledged and admitted using methamphetamine around the time of M.C.’s birth, but upon further questioning conceded she had denied using drugs when confronted by authorities.
Mother claimed she never had failed to submit h er drug patches for testing a nd asserted every positive test result was “ an error

. ” Mother testified a possible explanation for positive results was environmental residue , but also maintained she had not been exposed to any environment containing methamphetamine

. When she explained she earlier had
chose n to leave a residential shelter to accommodate unsupervised visits with her
children , she was asked why the unsuperv ised visits did not materialize. Mother first responded “[i]t was unclear at the time,” but then confirmed it was because she incurred a positive drug test result “[f]or heroin,

. . . a substance that [she had] never touched in [her] life.” 3. Juvenile Court Ruling

During oral argument s , Mother argued the juvenile court should not7

termin ate her parental rights to L.C. and A.C. based on the parental benefit exception.
She argued Rodriguez’s opinion testimony that termination would not be detrimental to
the children lacked credibility and that Mother had an “incredibly beneficial and positive relationship” with the children

. Counsel for L.C. and A.C. noted Mother loved her
children , but asserted she had not met her burden to show the exception applied because
her positive visits with the children were “more akin to [ visits from a ] fri endly visitor or a playmate.” The children’s c ounsel agreed with Rodriguez’s testimony and argued the
benefit of a continu ing Mother’s relationship with the children did not “outweigh[] the detriment to permanency” posed by ordering an exception to adopti on

. SSA argued that although there were benefits to Mother’s relationship with the children, “frequent and loving contacts [were] insufficient” to justify applying the exception. SSA emphasized Mother’s failure to reunify with the children as a “huge barrier to Mother occupying more of a parental role,” which the children’s foster parents had fulfilled for two years by the time of the hearing.

The juvenile court found the children adoptable and balanc ed “the strengths and qualities of [Mother’s] relationship [with L.C. and A.C.] . . . against the security that the sense of belonging [] to a new family would confer . . . from [L.C. and A.C.’s] po int of view.” The court ruled Mother had failed to carry her burden to justify appl ying the parental benefit exception under the “standards articulated in [ In re Autumn H. (1994)
27 Ca l.App.4th 567, 575 ( Autumn H. )] and its progeny

. ” The court considered when the
children were detained ( when L.C. had been just over two years old and A.C. just over one year old), how long they had been out of Mother’s custody (31 months at the time of the .26 hearing) and Mother’s progress status on her “core issue” of sub stance abuse.
The court noted th e focus at this hearing shifted from attempting to r eunify Mother with
her children to the children’s best interests when reunification services were terminated in August 2019

. Although Mother’s visits had been consistent and “positive ” for the children, the court concluded that under Autumn H. , Mother had not show n her8

“ relationship promote[d] the well

- being of the child [ren] to such a degree [it] outweigh [ed] the well

- being [they] would gain in a perm anent home with new adoptive parents.” The juvenile court found Rodriguez’s testimony “credible” and added it independently came to the same conclusion that adoption best served the children’s
interests. The court terminated Mother parental rights to L.C. and A.C. and ordered a permanent plan of adoption for the children

. II
D ISCUSSION A. Standard of Review

Mother contends the juvenile court should have appl ied the statutory

“ parental benefit exception ” and not terminate d her parental rights for L.C. and A.C

. Although she acknowledges the Legislature ’s express preference for adopt ion (§ 366.26, subd. (b)(1))

— and consequently, ter mination of parental rights ( In re Breanna S. (2017) 8 Cal.App.5th 636, 645 ( Breanna S .) )

— Mother as serts she show ed “ a compelling reason for determining that termination would be detrimental to the child [ren]” because she “had maintained regular visitation and contact with the child[ren ,] and [ show ed they] would benefit from continuing the [ir] relationship [with her ] .” (§ 366.26 , subd. (c)(1)(B)(i).)

As SSA notes, the California Supreme Court will soon resolve a disagreement among a ppellate courts about how to analyze a juvenile court order on the
pare ntal benefit exception. ( See In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839 .) Some court s review the decision for abuse of discretion, others review it for substantial evidence, and still others combine the two. ( S ee i d. at p. 106

. ) We agree with the parties the hybrid approach is appropriate . In other words, we review factual determinations for substantial evidence, but the juvenile court’s decision on the importance of parent

- child relationship weighed against the bene fit of adoption is reviewed under the deferential abuse of discretion standard. ( In re J.C

.9

(2014) 226 Cal.App.4th 503, 530.) We also note we would reach the same conclusion whether we analyzed Mother’s arguments solely under the substantial evidence or abuse
of discretion standard of review.

The benefit exception authorizes the juvenile court to avoid terminating parental rights if it finds “‘ termination would be detrimental to the child [because] .

. . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ’” ( In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Once a parent fails to reunify with a child during the prescribed statutory perio d and the juvenile court terminates reunification services, the parent bears the burden of proving termination of parental rights would be detrimental to
the child. ( In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 ( Jasmine D. ).) The benefit exception d oes not permit a parent to thwart the permanency and stability of adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. ( Id. at p. 1348.) Instead, the benefi t exception applies only if “ 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 re Autumn H. , supra, 27 Cal.App.4th
at p. 575.)
Au tumn H. explains the requisite analytical framework: “ [T]he 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.) Thus, “ the juvenile court must engage in a10

balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. ” ( In re Cliffton B. , supra , 81 Cal.App.4th at pp. 424

- 425.) Factors bearing on the parent

- child bond include

“ [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

. . . . ” (

Autumn H. , supra , 27 Cal.App.4th at p. 576.) Even if these factors reveal a strong bond, the parent faces a heavy burden to overcome the Legislature ’ s preferred permanent plan of adoption. (See § 366.26, subd. (b)(1) [identifying adoption as preferred plan]; see also Jasmine D. , supra , 78 Cal.App.4th at p. 1348 [ “ Adoption is the Legislature ’ s first choice because it gives the
child the best chance at [a full emotional] commitment from a responsible caretaker ” ];
In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [the “ most permanent and secure
alternative ” of adoption affords children “ the best possible opportunity to get on with the task of growing up ” ].) Stability and permanence become paramount goals once
reunification efforts cease. ( In re Marilyn H. (1993) 5 Cal.4th 295, 309.) By the
section 366.26 hearing, the dependent child “ is entitled to stability now, not at some hypothetical point in the future. ” ( In re Megan S. (2002) 104 Cal.App.4th 247, 254.) Thus, the statutory exceptions to termination, including the benefit exception, “ merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which r emains adoption. ” ( In re Celine R. (2003) 31 Cal.4th 45, 53 , original
italics .) We must affirm the juvenile court ’ s conclusion the benefit exception did not apply if substantial evidence supports the juvenile court’s discretionary determination
order. ( In re J.C. , supra , 2 26 Cal.App.4th at p p. 5 30

- 531 .)11

B . The Juvenile C ourt D id N ot E rr i n Rejecting t he Parental Benefit Exception Given there is a no dispute that Mother satisfied the visitation prong, we consider whether the juvenile court erred by not apply ing the parental benefit exception based on the “nature of [Mother’s] relationship ” with L.C. and A.C. Mother contend s she “occupied a parental role” and “share[d] a strong attachment” with L.C. and A.C. that overcame the legislative preference for adoption

. We do not find the contention persuasive. Rodriguez acknowledged the positive nature of Mot her ’s visits with her
children , b ut he also did not believe terminating visitation would adversely affect the children, explaining the children were not sad or upset at the end of their visits with
mother. The evidence also showed the children bonded with their prospective adoptive parents and were thriving in their care. Rodriguez’s testimony, which the court found credible, and evidence the children stood to greatly benefit in a permanent home , constitutes substantial evidence and support s the court’s decision not to apply the benefit exception. Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 ( S.B. ) is unavailing . There , an appellate court reversed an order terminating the parental rights of
a father who had been the primary caregiver for the first three years of his then five

- year

ol d daughter’s life. ( Id . at pp. 293, 295, 303.) F ollowing the father’s “drug

- related” arrest ( Id . at p. 293), he had “ ‘complied with every aspect of his case plan,’ including maintaining his sobriety , ” by the time of the court’s 12

- month r eview hearing. ( Ibid .)

The appellate court reversed the juvenile court’s terminat ion of parental rights ( S.B. , supra , 164 Cal.App.4th at p. 303 ), explaining the record showed the father had “continued the significant parent

- child relationship despite the lack of day

- to

- day contact with [his daughter] after she was removed from his care.” ( Id

. at p. 299. ) The appellate court reasoned that, b ased on a record showing the daughter “ loved her father, wanted their relationship to continue and derived some mea sure of benefit f rom his visits

. . . the only reasonable inference [was the daughter ] would be greatly harmed by the loss12

of her significant, positive relationship with” her father. ( Id . at pp. 300

- 301.) The court
observed the parental beneficial relationship exception does not require “proof that the child has a ‘primary attachment’ to a parent or that the noncustodial parent has maintained day

- to

- day contact with the child .” ( Id . at p. 300.)

The factual contrast to the record here underscores the absence of error in the juvenile court’s ruling

. As a general proposition, Mother correctly assert s that a child’s bond with prospective adoptive parents does not necessarily mean the child cannot “continue to also have a bond with [a biological parent].” But we disagree with Mother’s claim “[t]he benefits of continuing the children’s very strong bond with [her] outweighed the benefits of adoption.” In contrast to the father in S.B. , Mother di d not
ha ve physical custody of L.C. and A.C. for the majority of their lives

— since they had been two year s and one year old , respectively. N or is it clear Mother had been the primary caregiver before SSA detained the children

. Unlike the father in S.B ., the record does not show Mother “ ‘c omplied with every aspect of [her] case plan,’ including maintaining [her] sobriety

. ” ( S.B. , supra , 164 Cal.App.4th at p . 293 .) Indeed, Rodriguez testified, and Mother confirmed, she failed to progress to unsupervised visits with the children because of her positive drug test results. (See In re Casey D. (1999) 70 Cal.App.4th 38, 51 [ showing of a sufficiently “ strong and beneficial parent

- child relationship

. . . difficult to make” where parent fails to qualify for unsupervised visitation].)
We do not discount the relationship between Mother and her children , nor her efforts to address the issues that brought her to the juvenile court

. It is clear M other
loves her children. Notwithstanding, the record shows , and M other does not dispute , the
children had a strong bond with their prospective adoptive parents and considered them their parents. G iven that adoption is the legislatively preferred permanent plan for adoptable dependent children , and the benefit exception expressly requires a “ compelling reason [to] determin[e] that termination [of Mother’s parental rights] would be13

detrimental to the child[ren]” (§ 366.26, su bd. (c)(1)(B)(i)) , the court did not err in declining to apply the parental benefit e xception.
III
D ISPOSITION The juvenile court ’s order terminating Mother’s parental rights for L.C. and
A.C. is affirmed.

ARONSON , J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL , J.