1

Filed 5/24/23 In re N.R. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

In re N.R. et al., Persons Coming Under the Juvenile Court Law. C096991

YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.
T.R., Defendant and Appellant. (Super. Ct. Nos. JV2021

- 18

- 1 & JV2021

- 18

- 2)

T.R. (mother) , mother of the minors N.R. and S.M. , appeals from the juvenile

court ’ s order s terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) 1 She contends the juvenile court erred in failing to apply the

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

beneficial parental relationship exception to adoption. Finding no error, we will affirm the juvenile court’s orders.

FACTUAL AND PROCEDURAL BACKGROUND
The m inors have been involved with the Yolo County Health and Human Services Agency ( Agency ) since their birth. N. R . was born in November 2012 and, as a result of mother’s methamphetamine use, was the subject of a voluntary family maintenance case

. The case was closed in July 2013 but , after S.M.’s birth in June 2014, both minors were removed from mother’s custody , again for reasons related to mother’s methamphetamine

use , as well as the deplorable condition of the home . Mother was provided reunification
services and regained custody in April 2015. After six months of family mainte nance services , the case w a s clos ed in October 2015. The instant dependency proceedings were instituted i n February 2021 with the filing of a section 300 petition after several domestic violence incidents and reports that
mother had resumed methamphetamine use

. The minors’ infant sibling had also recently died while in the care of mother and the sibling’s father, but this was not used as a basis for jurisdiction.
T he minors were initially detained and placed with the maternal grandmother but
later moved to the ho me of the m aternal grandfather , who was the preferred placement of the minors’ Indian tribe. The juvenile court adjudged the minors dependent children of
the court and ordered them removed from mother’s custody on March 15, 2021. It
further ordered mothe r be provided with reunification services. 2 Supervised visitation

was set at nine hours a week. Mother appealed the jurisdictional and remo val orders and
we affirmed . ( In re N. R

. et al. ( D ec. 8, 2021 , C093954 ) [nonpub. opn .].)

2 Services were initially provided for N.R.’s father but the Agency was unable to locate him , and his services were ordered terminated at the six

- month review hearing. Neither minors’ father is a party to this appeal.3

At the six

- month review hearing in September 2021, the Agency reported mother was attending grief counseling, but not participating in her other case plan services.
Mother ’ s visits with the minors were occurring weekly for six hours. 3 Three hours were supervis ed by the Agency in mother ’ s home and the other three hours were supervised by
the maternal grandfather. The Agency and maternal grandfather stated the visits “tend to go well” and there were no concerns. During visits , mother provided food and activities
for her children such as art, movies , and swimming or going to the park

. The minors were reported to enjoy the visits

. Both minors were attending grief counseling. The juvenile court continued mother’s reunification services.
At the time of t he 12

- month review hearing, mother had still only participated in grief counseling and had failed to participate in any of her other ordered services. She had refused to meet with the social worker, complete parenting classes, attend substance
abuse tre at ment , or participate in random drug testing as directed

. She was attending nine hours of supervised visitation per week and the visits continued to go well. The minors enjoyed themselves and appeared happy during the vis its. M other continued to bring th e minors food and plan activities

. N .R. required further grief counseling and was seeing a psychiatrist to work on addressing his anger and frustration. S.M. was also continuing grief counseling. The juvenile court terminated mother’s reunification services and set a section 366.26 hearing for July 2022.
The contested section 366.26 hearing took place on August 15, 2022

. The minors remained placed with their maternal grandfather. The Agency recommended the termination of parental righ ts with a permanent plan of adoption. The tribal representative attested that the tribe was in agreement with the recommendation to

3 It was subsequently reported that mother was visiting for nine hours each week during th is period : six hours supervised by the Agenc y and three hours supervised by the maternal grandfather.4

terminate parental rights , that the maternal grandfather was the tribe ’s preferred placement, that active efforts had been provided, and that continued custody by mother

wa s likely to result in serious emotional or physical damage to the minors

. N.R. was continuing to see his psychiatrist to address his anger and frustration

. S.M. was also being provided therapeutic support f rom a p sychiatrist . Both minors also required continued grief counseling. The maternal grandfather and step

- grandmother

were willing , and expressed a strong desire, to provide permanency in the form of adoption

. The minors had been placed in their home for 1 6 months , but the grandfather
ha s had a relationship and regular contact with the minors since their births . Both minors
had been developing well in their care and the interactions with their caregivers were
d escribed as “ pleasant and conducive to their mental and emotional well

- being.” The caregivers were attuned to , and were meeting, the minors ’ needs and both minors had expressed that they feel sa f e with their maternal grandfather. The home was providing

t he minors with a stable and nurturing environment

. The adoption home study was completed, and the maternal grandfather and his home were found suitable for adopting
the minors. N.R. had expressed some frustration about not reunifying with mother but had

a ccepted his grandfather a s a caregiver and had positive things to say about their relationship. N.R. said he agreed with the adoption but needed more time to prepare and
think about it. He appeared relieved to know that adoption finalization was an event that
would ha ppen in the fut ure so he would have more time to pr epare. He was also continuing to participate in therapy where he would be able to process his current circumstances regarding adoption. N.R. said he felt safe with the maternal grandfather
with whom he appeared to have a positive and trusting relationship and substantial
emotional ties . The adoption specialist and adoption supervisor opined it would not be
detrimental to N.R. to terminate paternal rights but it would be seriously detrimental to the minor’s well

- being to remove him from maternal grandfather’s care.5

S.M. (age eight) also accepted his maternal grandfather a s a caregiver , felt safe with him, enjoyed participating in activities with him, and h ad positive things to say about their relationship. He would, however, like to return to mother’s care or be in the care of his maternal grandmother

. His reasons for preferring not to live with the maternal grandfather were that he would like to spend mo re time with the maternal grandmother,
and that he has to attend C atholic school , which requires he wear a uniform and compl y with a lot of rules and praying

. S.M. did not , however, have any serious concerns or worries about remaining with the maternal gr andfather for purposes of adoption. He, too, was continuing to participate in therapy and was process ing his current circumstances and
future adoption. Like his half

- brother, S.M. was reported to have a positive and trusting relationship with, and substantial emotional ties to, his maternal grandfather. S.M.’s relationship with the maternal grandfather was assessed as meeting his needs

. The adoption specialist and adoption supervisor opined it would n ot be detrimental to S.M. to terminate paternal rights but it would be seriously detrimental to the minor’s well

- being
to remove him from maternal grandfather’s care. Mother had continued to attend nine hours of supervised visitation per week. The
visits were reported to go well , with the minors enjoying the visits

. Some of mother’s visitation time was spent attending the minors’ extracurricular sports activities. The maternal grandfather stated the minors love and miss mother and reported that there wer e , at times, some setbacks after visits with her where the minors’ behavior would be harder

to manage. They did not, however, cry or appear upset when the visits ended. The maternal grandfather was willing to facilitate post

- adoptive contact with mother and
intended to keep it around the same frequency, but with more flexibility to accommodate the minors’ activities

. The minors would also grow up together in the maternal grandfather’s home and would be provided the opportunity to remain in contact with t heir
extended family and tribe.6

The maternal grandfather also testified that he had to do a lot to stabilize the minors when they were placed with him , both academically and behaviorally. In his opinion, the minors were concerned with whether they would have a chance to live with mother if she were to start doing what she needs to do . They have been blaming themselves for why they cannot live with mother. The adoption specialist tried to assure them they were not to bl ame

. Maternal grandfather believed the minors were fine with proceeding with the adoption if they think the y can live with mother again someday if she
does what she needs to d o. 4 Their tribe has a procedure for this to occur , but it is
conditioned on th e maternal grandfather’s agree ment and the mother’s strict compliance
with the juvenile court’s earlier reunification plan services

. In contrast, he believed the unrestricted access to petition for custody that a regular legal guardianship ( rather than
ad option) would permit , would be hard on the minors. Regardless, he could handle the minors’ reactions to not being returned to mother’s care as he was already doing that.
Mother ’s counsel argued the mother’s parental rights could not be terminated
based on an un enforce able promise of future contact and that there was no guarantee the maternal grandfather would continue to permit her to visit or would permit her to petition the tribe if she changed her beha vio r

. Counsel argued that termination of parental rights
would be detrimental to the minors , even though the mother could not provide a home for
them. In the end, the attorney requested the juvenile court find the beneficial parental relationship exception to adoption applied and order a plan of legal guardianship with the maternal grandfather.

4 This was described by counsel as a procedure within the tribe that permits, under certain circumstances, the biological parent to regain legal guardianship

. This is also consistent with Probate C ode section s 1500.1, 1510, 151 4 , which provides for the nomination of a suitable guardian in accordance with the minors’ best interests.7

Minors’ counsel argued there had been no evidence of a positive emotional attachment; happy visits did not equate to a substantial positive relationship . Counsel
arg ue d that the minors’ wishing they could go back to mother did not mean there was a positive emotional attachment and that such hope, at this point, was detrimental to them. The maternal grandfather had provided the stability and mental health support the minors
needed and would be able to support the minors as they dealt with the loss of their legal

r elationship with mother. Even assuming the minors would not have continued future contact with mother, the benefits of adoption outweighed any possible detri ment resulting
from the termination of parental rights.
The juvenile court began by noting that the focus of the hearing was not the
success or failure of mother ’s effort s, but the minors’ need for stability. I t found mother had visited regularly but that there was a substantial argument that mother’s relationship
with the minors was not a parental relationship, but more of a friendship or visitor relationship. Although the minors call her their mother and “love her dearly,” she has never provided t hem with any of the things a parent normally would provide. She did not
meet their emotional needs or their educational needs . She loves that she has children and likes to spend time with them, but she does not take a ny responsibility for them n or care enough to try to address her problems to regain custody. The juvenile court found she did not have a parental bond within the meaning of the exception. The court further found that, not only would maintaining their rel ationship with mother not benefit the
minors to such an extent as to outweigh the benefits of adoption and greatly harm the minors, it found “exactly the opposite ” to be the case

— that “ termination of parental rights would greatly benefit [ the minors ] ” by giving them the stability they have been missing their entire lives. The juvenile court then n oted that mother was lucky that her father was willing to
do what he was saying he was willing to do because she had “done nothing to deserve
what he’s offering her . She cannot provide for these children. She does not have that8

parental bond with them that would make an exception whatsoever, and yet she has a
father who is willing to continue to let her visit, to even make available the possibility of
the children return ing to her if she ever can put herself in a position where she can actually be a mother.” Finding clear and convincing ev idenc e the minors are adoptable and finding the beneficial paren tal relationship exception not to apply and taking the minors’ wishes into consideration, the court terminated parental rights. It ordered any
future visitation to be completely at the discretion of the caregiver

. On August 26, 2022, the juvenile cour t granted mother’s mo tion to reopen
evidence , as mother’s counsel had forgotten to submit visitation logs at the contested hearing. T he visitation logs were admitted into evidence without objection, and the juvenile court set the matter for ruling on September 7, 2022. The v isit ation logs submitted by mother spanned from the end of January 2 02 2 to the end of May 2022. No visitation logs were introduced regarding visits from June, July , or August. All the visits appeared fairly consistent: T he minors were happy to see mother and appeared
comfortable with her. M other brought food and provided appropriate activities. She was verbally and physically affectionate toward the minors but there were only a few
references to the minors reciprocating her affe ction. It was also regularly observed that the minors would fight with or hit each other during the visits and refuse to listen to
mother , and that N.R. , in particular, often struggled with his behavior toward mother, being rude or yelling. There were no reports that the minors struggled with separating at
the end of visits or that they expressed the desire not to leave mother or that they had
missed her. On September 7, 2022, the juvenile court confirmed its prior ruling terminating parental rights

. It reviewed the visitation logs and , while the logs confirmed that she visited regularly and she w as a good friend , it concluded they did not show a parental
bond

.9

Mother timely appealed; the case was fully briefed and assigned to this panel in April 202 3

. The parties did not request oral argument. DISCUSSION
Mother contends the juvenile court erred by failing to find the beneficial parental relationship exception to adoption applied. We find no error. At the section 366.26 selection and implementation hear ing, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child

. . . . The permanent plan preferred by the Legislature is adoption

. [Citation.]’ [Citation.] If the court finds the child is adoptable, it mu st terminate parental rights absent circumstances under which it would be detrimental to the child.” ( In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the court to find a “compelling reason for determini ng that termination [of parental rights] would be detrimental to the child.” ( § 366.26, subd. (c)(1)(B).) One such circumstance is the

so

- called beneficial parental relationship exception. ( § 366.26, subd. (c)(1)(B)( i ) [beneficial parental relationship exception]; In re Caden C. (2021) 11 Cal.5th 614, 629 ( Caden C. ) .) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to the termination of parental rights. ( Caden C., supra , 11 Cal.5th at p p. 636

- 637; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(2).) The parent “must show regular visitation and contact with the child, taking into accoun t the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent

— the kind of attachment implying that the child would benefit from continuing the relationship. And the p arent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” ( Caden C. , at p. 636.)10

The beneficial parental relationship exception to adoption “must be e xamined on a

case

- by

- case basis, taking into account the many variables which affect a parent/child
bond. 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 paren t and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” ( In re Autumn H

. (1994) 27 Cal.App.4th 567, 57 6 .) The factual predicates of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. ( Caden C., supra , 11 Cal. 5th at pp. 639

- 640.) We do not substitute our judgment for that of the juvenile court as to what is in the child’s best interests. ( Id. at pp. 640

- 641.) Here, the fact that mother maintained consistent visitation with the minors was undisputed. However, it is not enough for a parent to show frequent and loving contact during pleasant visits. ( In re C.F. ( 2011) 193 Cal.App.4th 549, 555.) As for the second
and third elements , the juvenile court concluded mother did not meet her burden to establish the minors have a significant, positive, emotional attachment with her or that the
harm the minor s would experience if the parental relationship were terminated outweigh s the benefi t s that would be provided by an adoptive home. ( Caden C., supra, 11 Cal.5th at pp. 633

- 634.) To support her position that the se young minors have a substantial, positive
emotional attachment with her , mother argues that she raised them for the initial eight (N.R.) and six ( S.M.) years of their lives. While the minors were in her care for most of that time, the time was not one of stabi lity or positivity. They were removed from her care for a year shortly after their birth , and their time with mother included exposure to
substance abuse and domestic violence and e nded with the death of their infant sibling. The mere fact that they spen t the majority of their childhood in her custody does not,
under the circumstances here , establish , ipso facto , that they have a substantial, positive
emotional attachment to her. In this case, it r esulted in the need for the maternal11

grandfather to expen d significant efforts t o stabilize the minors, both academically and behaviorally , which he , not mother, had been successfully doing for the past year and a
half.
Nor is the fact that the minors enjoyed visits and were happy to see mother
sufficient to establish that the minors have a substantial, positive emotional attachment to her. F or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than that of a friendly visitor or friendly nonpa rent relative, such as a grandparent or aunt

. ( In re Angel B. (2002) 97 Cal.App.4th 454, 468 .)

“ [A] n emotional attachment is one where the child views the parent as more than a mere friend or playmate

. ” ( In re B.D. (2021) 66 Cal.App.5th 1218, 1230

. ) Wh ile mother provided limited care and entertainment during her visits, there was no evidence that separating from mother at the end of visits caused any emotional trauma

. The minors
missed mother but did not ask for more frequent , longer , or overnight visits. The juvenile
court found the minors considered mother more of a friend they enjoyed visiting than a parent to whom they were attached. Finally, neither the fact that the minors l ove mother n or that they hoped to be
returned to her cu stody someday are sufficient evidence of their substantial, positive
emotional attachment to mother

. While the minors do love mother, they also blame
themselves for her inability to regain custody. The ir continued relationship with mother
has resulted in their continued but unfulfilled hope that she will do what it takes to regain custody , and in N.R.’s frustration and anger that she continually does not. This is not the type of substantial positive attachment the exception contemplates. “ A ‘ 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.] A positive attachment between parent and child is necessarily one that is not detrim ental to the child but is nurturing and provides the child with a sense of security and stability

. ” ( In re B.D. , supra , 66 Cal.App.5th at p. 1230 , citing In re Autumn H., supra , 27 Cal.App.4th at12

p. 575 , italics added. ) The minors’ relationship with mother does not provide them with a sense of security and stability; it provides them with insecurity and instability

. A parent

- child relationship sometimes “involves tangled benefits and burdens” and “[i]n those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.” ( Caden C

. , supra , 11 Cal.5th at p. 6 34

. ) T he “positive” or “negative” effect of interaction between parent
and child is one of the factors to consider in assessing the relationship. ( Caden C

. , at
p. 632, quoting In re Autumn H

. , supra , 27 Cal.App.4th at p. 576.) Here, although the visits were reported to go well and no safety concerns were noted by the monitors, the
minors were also reported to have some problematic behaviors following visits with mother, and the visits were often peppered with the minors fighting, not listening to mother, or even being rude to or yelling at mother. Moreover, the juvenile court f ound the continuing relationship with mother, and the minors’ unfulfilled desire that mother ’s life circumstances and behavior would improve was detrimental to them and resulting in instability and insecurity. Th us, while the evidence established a bond between the minors and mother, the nature of the bond was not entirely positive. However, even assuming mother established her relationship with the minors w as sufficiently significant and positive and that continu ed contact would benefit the minors,
she failed to meet her burden to establish a detriment in terminating parental rights or that
the detriment of termination outweigh ed the benefits of adoption

. Mother had the burden of proof to affirmatively demonstrat e that termination of the relationship would be
detrimental to the minors. Yet, m other identified little evidence, if any, that termination
of the parental relationship would be detrimental to the minors at all, let alone when balanced against the counter vailing benefit of a new, adoptive home. ( Compare
Caden C., supra , 11 Cal.5 th at p p

. 627

- 628, 636 [r elying on a bonding study concluding severing the parental relationship would be detrimental to the child].)13

Mother did not testify at the hearing. While there was testimony that the minors love and miss mother, there was no testimony, nor any expert opinion, that the minors would suffer any detriment from the termination of parental rights. Indeed, t he only

ev idence presented on the subject of detriment w ere the opinion s provided by the adoption specialist and adoption supervisor who opined that terminating parental rights
would not be detrimental to the minors and that adoption was in their best interests

. Th e Agency, minors’ tribe, the tribal expert , and minors’ counsel were all in agreement that adoption was in the minors’ best interests

. While mother is not required to procure a positive bonding study or present expert testimon y , she nonetheless must meet h er burden of proof. In light of the uncontradicted opinion s here that termination of parental rights would not be detrimental , the p ositive
interactions during visits, the minors’ hope the mother’s circumstances and behavior would improve , or even minors missing mother between visits, are insufficient to
establish that losing the parent/child relationship would cause the minor s to be greatly
harmed.
Moreover , even assuming some detriment to the minors from termination of parental rights had been established , t he juvenile court was required to weigh the harm to
the minors of terminating their r elationship with mother against the benefit to these minors of a permanent and stable home. ( Caden C

. , supra , 11 Cal.5th at p. 631 .) Only if severing the parent

- child relationship would deprive the child of a substantial, positive
emotional attachment such that termination would be harmful to the child, even considering the benefits of a new adoptive home, should the court not terminate parenta l rights. ( Id. at pp. 631

- 632.) “ [T] he 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.” ( Id

. a t p. 640 .) W e will not disturb the juvenile court ’ s decision unless it “exceed[s] the limits of legal discretion14

by making an arbitrary, capricious, or patently absurd determination.” ( In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We cannot find an abuse of discretion here.
The minors deserve the opportunity to be raised in a permanent, stable home
environment under the care and custody of a stable nurturing parent who m they can count

on to continue to provide them with the suppor t they need . The y have been removed from mother’s care twice and a re doing well in maternal grandfather’s stable and supportive care . The instability of hoping mother will engage and regain custody is problematic for these minors , magnifying their instab ility. There was little to no evidence of great harm or detriment to the minors in terminating parental rights. T he juvenile court did not err in declining to apply the beneficial parental relationship exception to adoption.
DISPOSITION The orders of the juvenile court (terminating parental rights) are affirmed

.

\ s \ McADAM, J. *

We concur:

\ s \ MAURO, Acting P. J.

\ s \ DUARTE, J.

* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the Calif ornia Constitution

.