Filed 12/8/15 In re R.S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re R.S., a Person Coming Under the 

Juvenile Court Law.

 B265471

 (Los Angeles County Super. Ct. 

 No. DK01956)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

CAROLINA M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Julie F. 

Blackshaw, Judge. Affirmed. 

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant 

County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and 

Respondent. 

_________________________
2

Carolina M. (mother) appeals from the dependency court’s July 14, 2015 order 

terminating her parental rights under Welfare and Institutions Code section 366.261 and 

selecting adoption as the permanent plan for her son, R.S. Mother contends the trial court 

erred when it found no statutory exception applied to prevent termination of her parental 

rights. We affirm.

FACTS AND PROCEDURAL HISTORY

When mother gave birth to R.S. in October 2013, both mother and baby tested 

positive for amphetamines. The Los Angeles County Department of Children and Family 

Services (Department) opened an investigation. Mother admitted to using “Molly” 

amphetamines during her pregnancy, but was willing to do whatever it took to get her 

baby back. Mother identified Sergio S. (father)2 as R.S.’s father, but his whereabouts 

were unknown. Upon discharge from the hospital, R.S. was placed in maternal 

grandparents’ custody. The court ordered mother into a drug treatment program, with 

random testing. Mother had monitored visitation, two hours per visit, three times a week. 

Mother enrolled in a residential substance abuse treatment program in November 

2013, and informed the social worker she expected to complete the program by 

December 20, 2013. She admitted that beginning about two years earlier, she had been 

using speed (street vernacular for powerful stimulants, typically associated with 

amphetamine or methamphetamine) on a regular basis, and had used “Molly” two or 

three times a week while pregnant. Maternal grandmother stated that the alleged father 

physically assaulted mother on a regular basis, and mother was covered in bruises when 

she gave birth to R.S. However, mother denied being a victim of domestic violence. 

Mother did not contact the Department when her residential drug treatment program 

 

1 All further statutory references are to the Welfare and Institutions Code, unless 

otherwise stated. 

2 Father did not appear before the dependency court and does not appeal.
3

ended, and relatives could not provide contact information for mother. The Department 

became concerned that mother might be visiting R.S. while under the influence. The 

social worker told maternal grandmother on January 8, 2014, that future visits would 

need to take place at the Department offices. On January 13, 2014, mother and the 

alleged father showed up at maternal grandmother’s home, threatening her and 

demanding she turn R.S. over to them. Maternal great aunt notified the social worker 

immediately, and the police were called. 

On January 14, 2014, the dependency court sustained the Department’s petition, 

finding R.S. to be a minor described by section 300, subdivision (b), based on mother’s 

history of substance abuse and R.S.’s positive toxicology tests at birth. The court 

continued monitored visitation for mother, and ordered family reunification services, 

including a substance abuse program, drug testing, a 12-step program, and a 

psychological assessment. 

A progress report dated April 15, 2014, stated that mother had not yet enrolled in a 

residential drug treatment program. She first falsely claimed the program had a waiting 

list, then missed a number of scheduled intake appointments. On April 1, 2014, the 

program conducted an intake assessment and was ready to admit mother, but she did not 

want to stay that day and said she would return the following day. Mother did not return 

the next day as promised. Mother also claimed to be attending a 12-step program, but 

could not provide the social worker with any proof of attendance. Four drug tests during 

the time period were negative, but mother missed one test in February. Despite her 

difficulties in complying with the court-ordered reunification services, mother 

consistently attended monitored visits with R.S. The Department reported mother’s visits 

with R.S. were appropriate, and she would hold and kiss him during the two-hour visits. 

The Department’s July 15, 2014 six-month status review report noted that 

although mother’s efforts started strong when she enrolled in an in-patient facility in

November 2013, her progress had faded and she had not addressed her mental health or 

substance abuse issues. She was admitted to a substance abuse program twice, but failed 

to attend her required sessions. Out of seven drug tests between March 31 and July 9, 
4

2014, four had negative results, and three were missed. Mother’s monitored visitation 

with R.S. remained consistent, and monitoring was done by the maternal grandfather, 

rather than the social worker. The social worker had trouble contacting mother to arrange 

follow-up because mother did not have a cell phone. R.S. seemed attached to maternal 

grandparents, who were taking exceptional care of him. Maternal grandparents continued 

to express concern about mother suffering from acts of violence, because there were 

visible bruises on mother’s face and body. Maternal grandparents suspected mother was 

living with the alleged father. The social worker was only able to speak to the alleged 

father twice, and he denied paternity and asked the social worker how to request DNA 

testing to establish he is not R.S.’s father. 

On October 14, 2014, the Department reported that mother still had not 

participated in a drug or alcohol treatment program, a 12-step program, or mental health 

counseling to address case issues. She missed three of five drug tests and was currently 

living with the alleged father. The Department recommended that the court terminate 

reunification services to mother and set a date for a permanency planning hearing under 

section 366.26. 

At the six-month hearing in October 2014,3the court found that mother had not 

made significant progress in resolving the problems that led to R.S.’s removal, nor had 

she demonstrated a capacity or ability to complete the objectives of her case plan. The 

court terminated mother’s reunification services and scheduled a permanency planning 

hearing under section 366.26. 

In an April 2015 progress report, the Department reported that mother continued 

to have regular monitored visitation with R.S., but missed six out of seven drug tests. 

The court held a permanency planning hearing under section 366.26 on July 14, 

 

3 The six month hearing under section 366.21, subdivision (e) was originally 

scheduled for July 15, 2014, but was continued to October 14, 2014, to permit mother to 

contest. 
5

2015.4 On the day of the hearing, mother filed a section 388 petition, asking the court to 

reinstate reunification services. The petition explained that starting May 20, 2015, 

mother had been participating in a drug treatment program three times a week, tested 

negative for drugs four times, attended 12-step meetings, and completed a mental health 

assessment. 

After an offer of proof from mother’s counsel, the court permitted mother to 

testify on the issue of whether the parental relationship exception under section 366.26, 

subdivision (c)(1)(B)(i) applied. Mother testified that she and R.S. were really close, “so 

close that when my mom and I were together, he prefers to be with me than with her.” 

During visits, she reads to him, sings to him, and teaches him basic words. He cries 

when he knows the visits are about to finish. She believes R.S. would be hurt if he did 

not have any contact with her, because even after a two hour visit, her mother says he 

will cry for four hours. She talks to him on the phone every day. At the end of her 

testimony, mother asked the court to give her just one more chance. 

Mother’s counsel asked the court to consider that mother was in the process of 

doing what was needed to be able to reunify with R.S., including maintaining consistent 

visitation. Counsel pointed out that once the adoption was finalized, there would be no 

guarantee that mother could continue to visit. Counsel instead asked for the court to 

order legal guardianship, to allow security for the child while also leaving open for 

mother the chance of regaining custody if she qualified. Attorneys for R.S. and the 

Department pointed out that mother could not offer the stability comparable to adoption 

by maternal grandparents, and urged the court to terminate mother’s parental rights. The 

court terminated mother’s parental rights after finding that mother did not meet her 

burden of demonstrating that the exception under section 366.26, subdivision (c)(1)(B)(i) 

was applicable. It also denied mother’s section 388 petition. 

 

4 The court continued the permanency planning hearing from February 9, 2015 to 

July 14, 2015 to allow the Department to provide notice to the alleged father and to 

complete an adoption home study for R.S.’s maternal grandparents. 
6

DISCUSSION

Mother contends the dependency court erred when it found inapplicable the 

parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), and seeks 

reversal of the order terminating her parental rights. We find no error.

We assess whether the court’s order on the parental relationship exception is 

supported by substantial evidence.5 (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.) If 

supported by substantial evidence, the finding here must be upheld, even though 

substantial evidence may also exist that would support a contrary result and the 

dependency court might have reached a different conclusion had it determined the facts 

and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) 

“We do not reweigh the evidence or exercise independent judgment, but merely 

determine if there are sufficient facts to support the findings of the trial court. 

[Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Under section 366.26, subdivision (c)(1)(B)(i), if the dependency court terminates

reunification services and finds the child is adoptable, it must terminate parental rights 

unless it “finds a compelling reason for determining that termination would be 

detrimental to the child due to [the circumstance that the parent has] [¶] . . . maintained 

regular visitation and contact with the child and the child would benefit from continuing 

the relationship.” The parental relationship exception “does not permit a parent who has 

failed to reunify with an adoptable child to derail an adoption merely by showing the 

 

5 “[S]ome courts have applied different standards of review. (In re K.P. [(2012)]

203 Cal.App.4th [614,] 621-622 [question of whether beneficial parental relationship 

exists is reviewed for substantial evidence, whereas question of whether relationship 

provides compelling reason for applying exception is reviewed for abuse of discretion]; 

In re C.B. (2010) 190 Cal.App.4th 102, 122-123 [abuse-of-discretion standard governs 

review, but ‘pure’ factual findings reviewed for substantial evidence]; In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion standard].) On the 

record before us, we would affirm under either of these standards. (E.g., [In re] Jasmine 

D., [supra,] at p. 1351 [practical differences between substantial evidence and abuse of 

discretion standards are minor].)” (In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7.)
7

child would derive some benefit from continuing a relationship maintained during 

periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 

1348.) “A parent must show more than frequent and loving contact or pleasant visits. 

[Citation.] ‘Interaction between natural parent and child will always confer some 

incidental benefit to the child . . . .’ [Citation.] The parent must show he or she occupies 

a parental role in the child’s life, resulting in a significant, positive, emotional attachment 

between child and parent. [Citations.] Further, to establish the section 366.26, 

subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment 

if his or her relationship with the parent were terminated. [Citation.]” (In re C.F. (2011) 

193 Cal.App.4th 549, 555, fn. omitted.) “The significant attachment from child to parent 

results from the adult’s attention to the child’s needs for physical care, nourishment, 

comfort, affection and stimulation. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 

567, 575.) 

Mother’s relationship with R.S. did not promote R.S.’s well-being “‘to such a 

degree as to outweigh the well-being the child would gain in a permanent home . . . .’” 

(In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, 78 

Cal.App.4th at pp. 1347-1350.) R.S.’s maternal grandparents have been consistent 

caregivers since R.S. was discharged from the hospital as a newborn. He is now two 

years old, and while R.S. may have a close relationship with his mother because she visits 

him three times a week for two-hour monitored visits, that alone does not suffice to 

establish that R.S. would suffer detriment if the relationship was ended, or that the court 

erred in finding that there was no evidence of detriment. 

Mother argues that the exception under section 366.26, subdivision (c)(1)(B)(i), is 

applicable even though she is not R.S.’s primary caretaker. She points to In re S.B.

(2008) 164 Cal.App.4th 289, where the court found the exception applicable because the 

child derived benefit from a continuing relationship with her father, even though father 

did not fulfill a parental role. The same court in a later case limited In re S.B. to its 

extraordinary facts, that the father had developed a close bond with his daughter by being 

her primary caretaker for three years, and immediately started services and maintained 
8

sobriety after the dependency court removed the child from his custody. (In re C.F. 

(2011) 193 Cal.App.4th 549, 558.) Mother here is more like the mother in In re C.F., in 

that she has been unable to maintain compliance with reunification services, and is 

belatedly asking for the court to give her one last chance. Mother has not provided a 

bonding study or any other evidence of why the prospect of a continued relationship with 

mother would outweigh the benefits of permanency. (Id. at pp. 557-558.) 

We recognize that the court’s action terminating mother’s parental rights will 

mean maternal grandparents will have the legal right to restrict or even end mother’s 

visits. (See In re S.B., supra, 164 Cal.App.4th at p. 300 [“[w]e do not believe a parent 

should be deprived of a legal relationship with his or her child on the basis of an 

unenforceable promise of future visitation by the child’s prospective adoptive parents”].) 

However, we do not second-guess the dependency court’s determination that the benefit 

of permanency outweighs any possible benefit of legally preserving the relationship 

between R.S. and mother. The court’s determination the parental relationship exception 

does not apply in this case is supported by substantial evidence.

DISPOSITION

The order terminating mother’s parental rights is affirmed.

KRIEGLER, J. 

We concur: 

TURNER, P. J. BAKER, J.