1

Filed 9/30/21 In re L.W. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re L.W., a Person Coming Under 

the Juvenile Court Law.

MARIN COUNTY HEALTH AND 

HUMAN SERVICES,

Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

 A162234

 (Marin County Super. Ct.

 No. JV26821A)

M.S. (Mother), mother of three-year-old L.W., appeals from the juvenile 

court’s orders terminating her parental rights and selecting adoption as 

L.W.’s permanent plan, pursuant to Welfare and Institutions Code section 

366.26.1 On appeal, Mother contends the court abused its discretion when it 

found that she had failed to establish the applicability of the parental benefit

exception to adoption. (See § 366.26, subd. (c)(1)(B)(i).) We shall affirm the 

juvenile court’s orders. 

1 All statutory references are to the Welfare and Institutions Code.
2

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2019, Marin County Health and Human Service’s

Department of Children and Family Services (Department) filed an original 

petition pursuant to subdivisions (b) and (j) of section 300, alleging that then 

16-month-old L.W. was at risk of suffering serious physical harm as a result 

of Mother’s (1) failure to adequately protect and supervise L.W., and (2)

inability to provide regular care for L.W. due to her extensive substance 

abuse history. The petition further alleged that L.W.’s half sibling had been 

abused and neglected, and that Mother’s parental rights to him had been 

terminated in April 2017. The petition alleged that L.W. was also at 

substantial risk due to her father’s (Father) failure to protect and supervise 

her.2

In a June 18, 2019 detention report, the social worker reported that the 

petition was based on an incident on June 11, in which sheriff’s deputies 

arrested Mother for domestic violence and child endangerment after she 

reportedly held a knife to her own throat and threw knives at Father while 

holding L.W. in her arms. Mother also barricaded herself in her house during 

the incident. The social worker further reported that the Marin County 

Sheriff’s Office had been called to the parents’ address approximately nine 

times in the last year concerning issues that included Mother’s suicidality,

drug use, and verbal disturbances. The Department recommended that the 

court order L.W. detained. 

At the June 18, 2019 detention hearing, the court ordered L.W. 

detained and also ordered supervised visitation. 

2 Father is not a party to this appeal, and he will be discussed only 

when relevant to any issue raised in Mother’s appeal. 
3

In the jurisdiction report filed on July 19, 2019, the social worker 

reported that she had met with Mother, who described herself as a “ ‘chronic 

relapser’ ” with drugs. Mother denied that she had held or threw knives or 

threatened suicide in the incident leading to the petition in the present case.

Mother also said that she never kept drugs in the home, and kept her drug 

paraphernalia locked in her car. She admitted to leaving L.W. with Father 

for one to three nights at a time when she needed to “blow[] off steam” and 

use drugs. 

On July 23, 2019, the court continued the jurisdiction hearing to the 

following month, for a joint jurisdiction/disposition hearing. 

In a disposition report filed on August 15, 2019, the Department 

recommended that the court declare L.W. a dependent of the court, order six 

months of family reunification services, and adopt a proposed case plan that 

would provide Mother with treatment to enable her to maintain sobriety and 

address her mental health, and would also provide for regular visitation. 

At the August 20, 2019 disposition hearing, Mother submitted on the 

Department’s recommendations and the court sustained the petition with 

minor amendments, adjudged L.W. a dependent under section 300, 

subdivisions (b) and (j), and ordered reunification services and visitation.

In a six-month status review report filed on January 31, 2020, the 

Department recommended six more months of reunification services for 

Mother because she had made enough progress that there was a substantial 

probability that she would reunify with L.W. with six more months of 

services. The social worker reported that Mother had successfully completed 

an inpatient drug treatment program in September 2019, and had begun 

attending an outpatient treatment program in November. Mother had also 

consistently attended twice-weekly visits with L.W. during the reporting 
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period and had transitioned from fully supervised visits to check-in visits. 

The Department had considered transitioning to unsupervised visits several 

times, but each time Mother “would test positive for alcohol, miss tests, be 

unreachable by phone or email for 1-3 weeks, and/or once got kicked out of 

her intensive outpatient program.” The social worker noted, however, that 

Mother never appeared to be under the influence of alcohol during visits, and 

that all visits were positive for L.W., with no safety threats. 

At the March 10, 2020 six-month status review hearing, Mother 

submitted on the Department’s recommendations and the court ordered six 

additional months of reunification services. 

On June 29, 2020, the Department requested, and the court ordered, a 

continuance of the 12-month status review hearing from August 4 to 

September 15, based on the Department’s need for additional time to expand 

and assess visitation before finalizing a recommendation of family 

maintenance services for Mother and L.W. 

In a 12-month status review report filed on September 1, 2020, the 

Department recommended that the court terminate Mother’s reunification 

services and set the matter for a section 366.26 hearing. The social worker 

reported that L.W., who had moved into a concurrent foster home on March 

7, 2020, was on track developmentally, and had no medical or other major 

concerns. L.W. and Mother had continued to “have consistently positive 

visits with each other,” and it was clear that Mother loved L.W. and had 

shown an ability to apply age appropriate parenting skills. The Department 

had therefore transitioned Mother to unsupervised visits with L.W. in late 

June. Until July, Mother attended all scheduled visits, except one she missed 

due to illness. However, immediately after the Department decided to 

transition the visits from check-in to unsupervised, Mother “largely stopped 
5

responding to the [social worker], was almost discharged from her 

[outpatient] program for missing groups, therapy, and not checking in with 

her therapist, and . . . was almost discharged from her sober living home for 

leaving for several nights without permission. Additionally, [Mother] started 

missing visits with L.W., which she had never done before.” Based on 

Mother’s behavior and concerns about her sobriety and/or mental health, the 

Department changed the visits back to check-ins. Mother acknowledged her 

behavioral changes, but blamed them on “ ‘self-sabotaging.’ ” She denied that 

she had relapsed. 

In a September 10, 2020 first addendum to the 12-month status review 

report, the social worker reported that on September 5, Mother had been 

arrested for misdemeanor battery following an incident of domestic violence 

with Father. Father had reported that Mother appeared to be under the 

influence of drugs at the time of the incident, and he suspected she had 

relapsed months earlier. Mother’s sponsor, who visited Mother in jail on 

September 8, acknowledged to the social worker that she now believed 

Mother had been using drugs for several months. 

In an October 1, 2020 second addendum to the 12-month status review

report, the social worker reported that Mother, who had been discharged 

from her sober living home before her arrest, had begun living with sober 

friends after her release from jail. Her outpatient treatment program had 

discharged her following her relapse. Mother had attended only two visits 

with L.W. in the month of September, and “expressed a lot of guilt around 

her relapse and fear around the impact it could have on her reunification 

with” L.W. Mother’s sponsor, with whom Mother was checking in daily, 

reported that Mother was experiencing significant mental health symptoms, 

including depression, anxiety, grief, and suicidal ideation. 
6

At the October 7, 2020, 12-month review hearing, the court found that 

Mother had made minimal progress toward alleviating or mitigating the 

causes necessitating placement and that L.W. could not be returned safely to 

her care. It therefore terminated her reunification services and scheduled a 

section 366.26 selection and implementation hearing. 

In its section 366.26 report filed on January 12, 2021, the Department 

recommended that the court terminate both parents’ parental rights, and 

make adoption L.W.’s permanent plan. The social worker reported on 

Mother’s visitation throughout the case. Specifically, between June 14, 2019 

and February 17, 2020, Mother attended 59 out of 62 scheduled visits. 

Between February 18 and September 14, 2020, Mother attended 46 out of 48 

scheduled visits. Between September 15 and December 29, 2020, after 

Mother’s visits had been reduced to once or twice a month, Mother attended 

seven out of eight scheduled visits; however, no visits had been scheduled 

from November 3 to December 3 because Mother was not in contact with the 

Department. 

In a February 18, 2021 first addendum to the section 336.26 report, the 

social worker reported that Mother had attended two out of three scheduled 

visits in the previous month. The Department had found that L.W., who was 

now three years old, was generally adoptable. She was “a charming and 

playful child” who was meeting all developmental milestones. She had “a 

loving and close relationship” with her prospective adoptive mother, who was 

“committed to [L.W.’s] well-being and love[d] her unconditionally.” The social 

worker noted that L.W. had not been cared for by Mother for over half of her 

life, and opined that their relationship, which was “friendly but not parental 

in nature,” did “not promote [L.W.’s] well-being to such a degree as to 

outweigh the well-being she would gain in an adoptive home.” 
7

The section 366.26 hearing took place on February 23, 2021. Mother 

testified that she and L.W. have a “special bond” and that L.W. would get 

excited when she saw Mother at the start of visits and would run up to her 

and jump into her arms. L.W. had called Mother “mommy” since she was 18 

months old. They were very affectionate during visits and L.W. did not want 

the visits to end. Mother believed that it would be “cruel” to L.W. for her to 

suddenly not have Mother in her life, and that, because of their bond, it 

would not be in L.W.’s best interest to terminate Mother’s parental rights. 

At the conclusion of the section 366.26 hearing, the court found that 

L.W. was adoptable and that the parental benefit exception to adoption did 

not apply. The court terminated both parents’ parental rights and ordered

adoption as L.W.’s permanent plan.

On March 11, 2021, Mother filed a notice of appeal. 

DISCUSSION

Mother contends the court abused its discretion when it found that she 

had failed to establish the applicability of the parental benefit exception to 

adoption. 

The purpose of the section 366.26 hearing is to select a permanent plan 

for the child after reunification efforts have failed. (§ 366.26, subd. (b); In re 

Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) When the court finds that a 

child is likely to be adopted if parental rights are terminated, it must select 

adoption as the permanent plan unless the parent shows, pursuant to one of 

the statutorily specified exceptions, “compelling reason[s] for determining 

that termination would be detrimental to the child . . . .” (§ 366.26, subd. 

(c)(1)(B); see Caden C., at pp. 630–631.) “ ‘[T]he statutory exceptions merely 

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

other than the norm, which remains adoption.’ [Citation.]” (Id. at p. 631.)
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At issue here is the parental benefit exception, which applies if the 

juvenile court finds by clear and convincing evidence that the “parents have 

maintained regular visitation and contact with the child and the child would 

benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) In 

Caden C., our Supreme Court described the “three elements the parent must 

prove to establish the exception: (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.” (Caden 

C., supra, 11 Cal.5th at p. 631.) 

In Caden C., the court also clarified the standards applicable to the 

review of a trial court’s determination as to whether one of the statutory 

exceptions to adoption applies. (Caden C., supra, 11 Cal.5th at p. 639.) The 

court explained that the substantial evidence standard of review applies to 

the first two elements, and that, although the third element also has a 

factual component, “the ultimate decision—whether termination of parental 

rights would be detrimental to the child due to the child’s relationship with 

[her] parent—is discretionary and properly reviewed for an abuse of 

discretion.” (Id. at p. 640.)3

In the present case, Mother does not dispute that L.W. is adoptable or

that her prospective adoptive parent intends to adopt her. She argues only 

that the court abused its discretion when it found that the parental benefit 

exception did not apply.

3 The Caden C. court also observed, however, that “where, as with the 

parental-benefit exception, ‘the appellate court will be evaluating the factual 

basis for an exercise of discretion, there likely will be no practical difference 

in the application of the two standards.’ [Citations.]” (Caden C., supra,

11 Cal.5th at p. 641.) 
9

At the conclusion of the section 366.26 hearing, the court addressed 

whether Mother had demonstrated the three elements necessary to prove 

applicability of the parental benefit exception. First, with respect to 

visitation, the court found that Mother’s visits with L.W. were “frequent and 

continuous” between June 2019 and September 2020. “[H]owever, in 

September of 2020, Mother stopped visiting, she stopped confirming her 

visits. She stopped responding to the social worker, there were no visits at 

all for the month of November, and no contact form Mother during that time. 

Between September of 2020 and December of 2020, there were only seven 

visits, and since that time, . . . they reversed to supervised check-in visits, 

and they remained at this very limited amount due to that inconsistency. So,

while Mother had very frequent and continuous contact at the beginning, it 

has not been the case since last fall.” 

Mother acknowledges that her relapse led to decreased visitation near 

the end of the dependency, but emphasizes that “the bond between them as 

demonstrated by frequent visits throughout the reunification period and the 

parent-child behaviors cannot be denied or discounted.” Even assuming, as 

Mother claims, that her frequent visitation for most of the dependency period 

is sufficient to satisfy the first element of the parental benefit exception, the 

court also found that Mother did not have a significant parental bond with

L.W. such that L.W. would benefit from continuing the relationship, noting 

that “[i]nteraction between a parent and child will always confer come 

incidental benefit.” Substantial evidence supports the court’s finding as to

this element. (See Caden C., supra, 11 Cal.5th at pp. 639–640.) 

We recognize the love between Mother and L.W., as shown by the 

affection and enjoyment both demonstrated during visits. We also recognize 

Mother’s patient and skilled supervision of L.W. during those visits, and her 
10

openness to parenting suggestions. Nevertheless, considering that, at the 

time of the section 366.26 hearing, L.W. was only three years old and had 

been out of Mother’s custody for over half of her young life, substantial 

evidence supports the court’s finding that Mother had not shown that she 

occupied a significant parental role in L.W.’s life. (See Caden C., supra,

11 Cal.5th at p. 632, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 576; 

see also In re C.F. (2011) 193 Cal.App.4th 549, 555 [“A parent must show 

more than frequent and loving contact or pleasant visits”].) 

Finally, even if Mother had demonstrated that L.W. has “a substantial, 

positive emotional attachment” to her such that L.W. “would benefit from 

continuing the relationship” (Caden C., supra, 11 Cal.5th at p. 636), the court 

ultimately concluded it could “not find that the nature of the relationship 

described by Mother has risen to the level to overcome the benefits of that 

permanency.” We review this determination for abuse of discretion. (See id. 

at p. 631.)

In exercising its discretion in each case, the court must “decide[] 

whether the harm of severing the relationship outweighs ‘the security and 

the sense of belonging a new family would confer.’ [Citation.] ‘If severing the 

natural parent/child relationship would deprive the child of a substantial 

positive emotional attachment such that,’ even considering the benefits of a 

new adoptive home, termination would ‘harm[]’ the child, the court should 

not terminate parental rights. [Citation.]” (Caden C., supra, 11 Cal.5th at 

p. 633, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 576.) 

Here, the record reflects that at the time of the section 366.26 hearing, 

L.W. had been living with her prospective adoptive parent for almost a year, 

which was nearly one-third of her life, and they had a loving, close 

relationship. The prospective adoptive parent gave L.W. “a sense of security 
11

and reassurance,” and was committed to adopting her. In the circumstances 

of this case, we conclude the court acted well within its discretion when it 

determined that any potential harm to L.W. from the loss of her relationship 

with Mother was outweighed by “ ‘the security and the sense of belonging a 

new family would confer.’ ” (Caden C., supra, 11 Cal.5th at p. 633; see 

§ 366.26, subd. (c)(1)(B)(i).) 

DISPOSITION

The juvenile court’s orders are affirmed. 
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_________________________

Kline, P.J.

We Concur:

_________________________

Richman, J.

_________________________

Stewart, J.

In re L.W. (A162234)