Filed 12/21/21 In re M.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re M.C., a Person Coming Under the 

Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES 

AGENCY,

 Plaintiff and Respondent,

v.

JENNIFER W.,

 Defendant and Appellant.

 G060453

 (Super. Ct. No. 18DP1139)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Isabel 

Apkarian, Judge. Affirmed.

Jacques Alexander Love, 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 for the Minor.

* * *
2

M.C. was born with various drugs in her system. She was removed from 

Jennifer W.’s (Mother) custody when she was two days old and was later found to be a 

dependent of the juvenile court. The court eventually terminated reunification services 

for Mother and set a hearing to terminate parental rights under Welfare and Institutions 

Code section 366.26.

1

 At that hearing, Mother argued her parental rights should remain 

intact under the parental-benefit exception (§ 366.26, subd. (c)(1)(B)(i)). The court found 

the exception did not apply and terminated parental rights. Mother appeals this decision. 

We affirm the order because the court did not abuse its discretion when it found 

termination of Mother’s parental rights would not be detrimental to M.C.

I

FACTS AND PROCEDURAL HISTORY

A. Termination of Reunification Services

The facts below are from this court’s prior opinion (Jennifer W. v. Superior 

Court (Jan. 28, 2021, G059416 [nonpub. opn.]), affirming the juvenile court’s 

termination of Mother’s reunification services:

“In October 2018, M.C. was born with amphetamine and methamphetamine 

in her blood system and [two days] later was taken into protective custody by the Orange 

County Social Services Agency (SSA). Mother admitted she ‘tried’ methamphetamine 

‘one-time’ before knowing she was pregnant but otherwise denied using 

methamphetamine. She also provided various inconsistent explanations for the drugs in 

the child’s body. Nine months earlier, the juvenile court detained Mother’s two other 

children with the same father after they were found unsupervised with open wounds, 

severe rashes, and an infection caused by leaving the children in urine-soaked diapers.

1

 All further undesignated statutory references are to the Welfare and Institutions Code.
3

“SSA filed a juvenile dependency petition based on M.C.’s positive test for 

methamphetamine at birth. The petition also alleged both Mother and the father had 

unresolved substance abuse and domestic violence issues, as well as criminal histories, 

and had a pending dependency case for M.C.’s [two] other siblings. Mother and the 

father did not contest the allegations and the juvenile court found them to be true. In its 

dispositional order, the court continued SSA’s custody of M.C. and authorized family 

reunification services for both Mother and the father.

“SSA and Mother stipulated to a case plan that the juvenile court

incorporated into its dispositional order. The plan stipulated Mother would have 

supervised visitation with the child, up to seven hours per week, and SSA had the option 

to liberalize visitation. Mother agreed to participate in programs on parenting education, 

general counseling, anger management, and substance abuse. The plan also directed 

Mother to participate in a ‘12-Step Program’ for substance abuse and submit to random 

testing. Mother agreed to be tested through a drug patch. Under the case plan, Mother 

knew ‘all drug [and] alcohol tests [were] to be negative’ and a missed drug test would be 

considered a positive drug test. The court advised Mother that if she ‘fail[ed] to comply 

with the requirements of [her] reunification case plan, the court [could] terminate 

reunification services and set a hearing to determine a more permanent plan for [her] 

child,’ which included possibly terminating Mother’s parental rights and ordering 

adoption of the child.

“Over the next 21 months, Mother maintained employment and consistently 

kept her supervised visits with M.C. Mother was both attentive and affectionate during 

these visits.” (Jennifer W. v. Superior Court, supra, G059416.) We supplement the prior 

opinion to note thatsome of the visits were virtual and some were in person. SSA’s

visitation records show M.C. and Mother appeared to have a loving relationship. At the 

in-person visits, M.C. hugged and talked to Mother, and Mother attended to M.C.’s 

needs.
4

“On her substance abuse issue, Mother reported completing her 12-Step 

Program and a substance abuse program. In 2019, Mother shared with her assigned SSA 

senior social worker, Emmanuel Rodriguez, insight gained through her participation in 

services, acknowledging she had placed substance use ahead of her children’s well-being. 

Notwithstanding, Mother regularly tested positive for drug use in both 2019 and 2020. 

For example, in the three months following completion of her substance abuse program 

in August 2019, Mother tested positive for methamphetamine four times, cocaine three 

times, and once claimed her testing patch fell off the day before she showed up to submit 

it. Mother maintained she was not using illegal substances.

“Including the above results, the record shows between April 2019 and July 

2020, Mother’s drug patch testing returned positive results 19 times (13 of these for 

methamphetamine) and negative 30 times. Additionally, there was one instance where 

Mother’s patch was reported untestable because it had been compromised and four other 

instances when Mother did not show up or claimed her testing patch had fallen off. 

Mother’s visits with her children were scheduled to become unsupervised in May 2019, 

but remained supervised due to her positive drug test results. The last negative drug 

patch test occurred in February 2020, followed by eight positive results for 

methamphetamine and two failures to submit patches for testing.

“Over several days beginning at the end of August 2020, the juvenile court 

combined the 12-month status review with the 18-month status review hearing. The 

court received into evidence SSA’s status review reports and heard testimony from 

Mother and social worker Rodriguez. [¶] . . . [¶]

“The juvenile court found Mother’s testimony not credible and returning 

M.C. to Mother’s custody posed a substantial risk of detriment to the child due to 

Mother’s ongoing substance abuse. The court noted the case started because M.C. was 

born with drugs in her system and found Mother’s drug test results trustworthy, despite 

Mother’s denial she was using drugs. The court terminated reunification services and set 
5

a hearing to select a permanent plan for the child.” (Jennifer W. v. Superior Court, supra,

G059416.) Mother appealed, and this court affirmed the juvenile court’s order.

B. Termination of Parental Rights

SSA’s section 366.26 reports recommended that parental rights be 

terminated and M.C. be freed for adoption. The reports noted that M.C.’s caregivers 

wanted to adopt her. She had been with them since December 2018, when she was less 

than two months old. Her two older siblings had also been placed with the same 

caregivers.2 M.C. was “stable in her placement and [was] bonded with both of the 

prospective adoptive parents. The prospective adoptive family ha[d] welcomed and 

incorporated [M.C.] into their family life and routine, ensuring the requirements for 

strong attachment development [were] present.”

During this period, Mother was authorized for seven hours of supervised 

visitation per week. She was consistent with her visitation and the visits went well. SSA 

reported in February 2021 that Mother had moved in with her own mother (M.C.’s 

grandmother) in Arizona, but she continued to drive from Arizona to California to visit 

M.C. The section 366.26 reports only describe two of these visits, which both occurred 

in May 2021. SSA’s notes from these two visits show Mother taught M.C. to drink from 

a sippy cup and worked with her on counting and identifying colors. Mother also 

engaged M.C. with toys, shared snacks with her, changed her diaper, and held her. She 

redirected M.C. when she attempted to climb on furniture. At the end of the visits, 

Mother and M.C. shared smiles and hugged each other.

2

 Mother’s parental rights for M.C.’s two older siblings were terminated in a separate 

dependency case. This court affirmed that order in April 2021 (In re L.C. et al. (Apri1 1, 

2021, G059421 [nonpub. opn.]).
6

The section 366.26 hearing occurred in June 2021. Mother was not present,

but her attorney appeared and argued for application of the parental-benefit exception.

3

Her attorney highlighted Mother’s consistent visitation with M.C. He also contended that 

M.C.’s enjoyment of the visits and excitement when she saw Mothershowed the two 

shared a bond. Terminating parental rights, he asserted, would deprive M.C. of having a 

relationship with Mother in the future.

In its ruling, the juvenile court found Mother had regular and consistent 

visits with M.C. However, it determined that even if there were “a beneficial relationship 

between [M.C.] and her mother,” there was no “compelling reason[] that terminating 

parental rights would be detrimental to [M.C.]” The court explained that “evidence of 

frequent, loving contact is not enough to establish a beneficial relationship . . . . [Mother]

must also show that she occupies a parental role in the child’s life[,]” which was not 

established by the available evidence. The court concluded M.C. was adoptable and that 

the parental-benefit exception did not apply. It terminated parental rights and ordered 

that M.C. be placed for adoption.

Mother appeals this order, arguing the juvenile court erred by failing to 

apply the parental-benefit exception.

II

DISCUSSION

“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and 

implement a permanent plan for the child.’ [Citations.] To guide the court in selecting 

the most suitable permanent arrangement, [section 366.26] lists plans in order of 

preference and provides a detailed procedure for choosing among them. . . . According to 

that procedure, the court must first determine by clear and convincing evidence whether 

3

 Her attorney represented that Mother chose not to attend the hearing because it was too 

emotionally taxing.
7

the child is likely to be adopted. [Citation.] If so, and if the court finds that there has 

been a previous determination that reunification services be terminated, then the court 

shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows 

that termination would be detrimental to the child for at least one specifically enumerated 

reason, the court should decline to terminate parental rights and select another permanent 

plan. [Citation.] As we have previously explained, ‘[t]he statutory exceptions merely 

permit the court, in exceptional circumstances [citation], to choose an option other than 

the norm, which remains adoption.’” (In re Caden C. (2021) 11 Cal.5th 614, 630-631, 

italics added (Caden C).)

The parental-benefit exception, which is at issue here, “is limited in scope.” 

(Caden C., supra, 11 Cal.5th at pp. 631-632.) To establish this exception, a parent must 

prove three elements 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.” (Id. at 

pp. 631, 636-637.)

Here, the juvenile court’s denial of the parental-benefit exception hinged on 

the third element. The court found Mother had met the first element. But it concluded 

that even if a beneficial relationship existed between the two, termination of parental 

rights would not be detrimental to M.C. As such, we start our analysis with the third 

element of the test. Two standards of review are applied to this element. The court’s 

findings of fact are reviewed under the substantial evidence standard. But “the ultimate 

decision — whether termination of parental rights would be detrimental to the child due 

to the child’s relationship with his parent — is discretionary and properly reviewed for 

abuse of discretion.”4 (Caden C., supra,11 Cal.5th at p. 640.) “An abuse of discretion is 

4

 The first two elements of the parental-benefit exception are reviewed under the 

substantial evidence standard. (In re Caden C., supra,11 Cal.5th at p. 639.)
8

only demonstrated when no reasonable judge could have made the challenged order.” 

(In re Marriage of Barth (2012) 210 Cal.App.4th 363, 374.)

In evaluating the third element, the court “decides whether the harm of 

severing the relationship outweighs ‘the security and the sense of belonging a new family 

would confer.’” (Caden C., supra, 11 Cal.5th at pp. 633-634.) “When the relationship 

with a parent is so important to the child that the security and stability of a new home 

wouldn’t outweigh its loss, termination would be ‘detrimental to the child due to’ the 

child’s beneficial relationship with a parent.” (Ibid.) “In many cases, ‘the strength and 

quality of the natural parent/child relationship’ will substantially determine how 

detrimental it would be to lose that relationship, which must be weighed against the 

benefits of a new adoptive home.” (Id. at p. 634.)

The parental-benefit exception is not applied liberally. “‘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 Celine R. (2003) 31 Cal.4th 45, 53.) 

To depart from this legislative preference, a “‘parent must show more than frequent and 

loving contact, an emotional bond with the child, or pleasant visits—the parent must 

show that he or she occupies a parental role in the life of the child.’” (In re A.G. (2020) 

58 Cal.App.5th 973, 995.) “[T]his type of relationship typically arises from day-to-day 

interaction, companionship and shared experiences, and may be continued or developed 

by consistent and regular visitation after the child has been removed from parental 

custody.” (In re S.B. (2008) 164 Cal.App.4th 289, 298-299, italics omitted.)

Here, the juvenile court acted within its discretion. M.C. was removed 

from Mother’s custody when she was only two days old. Thus, Mother and M.C. never 

had the day-to-day experiences that would create the necessary parental bond. And 

nothing in the record convincingly shows they formed such a bond through visitation. 

SSA’s reports indicate Mother and M.C. have a warm, loving relationship. They shared 

pleasant visits together and were affectionate. Mother taught M.C. various skills, 
9

changed her, held her, and hugged her. While this evidence supports the establishment of 

an emotional bond, that alone is insufficient to warrant application of the exception. This 

evidence does not conclusively establish Mother occupies a parental role in M.C.’s life. 

(In re A.G., supra, 58 Cal.App.5th at p. 995.) Put differently, nothing in the record 

convincingly shows M.C.’s bond with Mother is so strong that the interest in keeping it 

intact outweighs the benefits M.C. would obtain from adoption. As such, we cannot find 

the court acted unreasonably in choosing to terminate parental rights and free M.C. for 

adoption.

Mother compares her case to In re Amber M. (2002) 103 Cal.App.4th 681, 

but the three children in that case were substantially older than M.C. when they were 

removed from their mother’s care. The oldest was five years old, the middle child was 

two and a half years old, and the youngest was seven months old. (Id. at p. 684.) There 

was also evidence the mother had an important role in their lives that would be 

detrimental to terminate. A psychologist testified the oldest child and the mother “shared 

‘a primary attachment’ and a ‘primary maternal relationship’ and that ‘[i]t could be 

detrimental’ to sever that relationship.” (Id. at p. 689.) The middle child’s therapist 

testified his “relationship with [the mother] was positive and very important to him.” 

(Id. at pp. 689-690.) Likewise, a court appointed special advocate stated the middle child 

“loved and missed [the mother] and had difficulty separating from her.” (Ibid.) Finally, 

the court noted the youngest child “while seemingly too young to have developed much 

of a relationship with [the mother], nevertheless was very strongly attached to her.” 

(Id. at pp. 690-691.) Here, nothing in the record indicates M.C.’s attachment to Mother 

was comparable to the three children in In re Amber M.

The two other cases cited by Mother are also distinguishable. In those 

cases, there was far more evidence of a deep relationship between the parents and 

children that would have been detrimental to terminate. The child at issue in In re S.B.

(2008) 164 Cal.App.4th 289, was removed from her father’s custody when she was three 
10

years old. Prior to this point, the father had been her primary caregiver for her entire life. 

(Id. at pp. 293, 298.) The child “continued to display a strong attachment to” the father 

after she was removed from his custody. (Id. at p. 298.) During visits, the child told her 

father she loved and missed him and that she wanted to live with him. She was unhappy

when visits ended and tried to leave with her father. (Ibid.)

In the other case, In re Scott B. (2010) 188 Cal.App.4th 452, 471, the child 

“was nearly nine years old when he was placed with his foster family” and “had spent 

nearly all of his life living with [the mother].” The child expressed a desire “to be with 

[the mother] if at all possible.” (Ibid.) Likewise, the child’s court appointed special 

advocate reported “[the mother] and [the child] ha[d] a very close relationship and it 

would be detrimental to [the child] for their relationship to be disrupted.” (Ibid.) Though

we have no doubt Mother and M.C. share a loving relationship, the evidence in this case 

does not show their bond reaches the same level as the above cases.

III

DISPOSITION

The juvenile court’s order is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.