gno.law

In re D.P. CA4/1

California Court of Appeal · D067879 · 2015-08-31 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. EJ3700
Trial judge
Gary M. Bubis
Outcome
affirmed — Affirmed.
Area
dependency
Panel
McINTYRE (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:10Z · confidence high

The juvenile court terminated the mother's parental rights under Welfare and Institutions Code section 366.26, finding by clear and convincing evidence that the child was likely to be adopted and that the beneficial relationship exception did not apply. The Court of Appeal affirmed the order, holding that the mother failed to demonstrate regular visitation or a substantial positive emotional attachment necessary to overcome the presumption in favor of adoption.

Ruling reviewedStandardThe courtThe model
Termination of parental rights under Welfare and Institutions Code section 366.26, specifically the finding that the beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not apply.
“This record shows sporadic visitation which is insufficient to satisfy the first prong of the parent-child relationship exception to adoption.”
substantial evidencecorrectagree with court
The appellate court correctly applied the substantial evidence standard to the factual findings regarding visitation and the emotional attachment. The record cited in the opinion, including the social worker's reports of sporadic visitation and the mother's failure to maintain contact since January 2015, supports the conclusion that the mother did not meet the statutory requirements for the exception. The court's reliance on established case law defining the 'beneficial relationship' as requiring a parental role rather than mere familiarity is legally sound.

Authorities

  • relied: In re Autumn H. (1994) 27 Cal.App.4th 567 — Defines a beneficial relationship as one that promotes the child's well-being to a degree that outweighs the well-being gained in a permanent adoptive home, and lists factors such as the child's age and time spent in custody.
  • relied: In re Brittany C. (1999) 76 Cal.App.4th 847 — Establishes that the parent must show the child will be greatly harmed by termination to overcome the presumption in favor of adoption.
  • relied: In re Jasmine D. (2000) 78 Cal.App.4th 1339 — Clarifies that a parental relationship, not merely a friendly or familiar one, is necessary for the beneficial relationship exception to apply.
  • relied: In re C.F. (2011) 193 Cal.App.4th 549 — Supports the conclusion that sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception.
  • relied: In re Angel B. (2002) 97 Cal.App.4th 454 — States that a biological parent cannot derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during visitation.
  • relied: In re Casey D. (1999) 70 Cal.App.4th 38 — Supports the principle that delaying the selection of a permanent home does not promote the child's best interests.
  • relied: In re K.P. (2012) 203 Cal.App.4th 614 — Identifies the split of authority regarding the standard of review for the beneficial relationship exception, which the court noted but did not need to resolve.

The appellate opinion: sound — The opinion is sound because it correctly applies the statutory standard for the beneficial relationship exception, distinguishing between a mere familiar relationship and a true parental attachment. It relies on appropriate published authorities to support its conclusion that the mother's sporadic visitation and lack of consistent contact failed to meet the high burden required to overcome the presumption in favor of adoption.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court, at a contested Welfare and Institutions Code section 366.26 hearing, found D.P. adoptable by clear and convincing evidence, found no statutory exception to adoption applied, and terminated Mother's parental rights. The Court of Appeal affirmed, holding that Mother's sporadic visitation failed the first prong of the beneficial parent-child relationship exception and that substantial evidence supported the finding that she did not establish the second prong, without resolving the split over the applicable standard of review.

Ruling reviewedStandardThe courtThe model
Finding that Mother did not satisfy the regular visitation and contact prong of the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i))
“This record shows sporadic visitation which is insufficient to satisfy the first prong of the parent-child relationship exception to adoption.”
mixedcorrectagree with court
The opinion recites record facts showing Mother attended three of four visits in late 2013, inconsistent visitation during inpatient treatment she left after a month, long gaps with little record of visits, and no visits from January 2015 through the April 2015 hearing. Mother herself conceded gaps and argued only partial satisfaction. Sporadic visitation does not meet the first prong under In re C.F., and the court expressly reached the same result under substantial evidence, abuse of discretion, or a hybrid standard, so the unresolved standard-of-review question did not affect the outcome.
Finding that Mother did not establish that D.P. would benefit from continuing the relationship such that termination would greatly harm her (second prong of the exception)
“We also conclude that substantial evidence supports the juvenile court's determination that Mother did not meet her burden of establishing the second prong of the beneficial parent-child relationship exception.”
substantial evidencecorrectagree with court
The court applied the Autumn H./Angel B. framework requiring a substantial, positive emotional attachment whose severance would greatly harm the child, not merely pleasant visits. The social worker's assessment that Mother's relationship did not rise to a significant parental role and that D.P. thrived in her parents' absence, combined with the caregivers' wish to adopt, is substantial evidence supporting the juvenile court's finding. Because the parent bears the burden on this prong, the appellate court properly deferred to the finding.
Reliance on the section 366.26 assessment report despite its misstatement that D.P. lived with her parents until seven months old rather than two years seven months
“Given the balance of the record, particularly the parents' long-term drug use and their resistance to drug treatment, this error is of little import.”
substantial evidenceharmless erroragree with court
The portion of the child's life spent in parental custody is an Autumn H. factor, so the misstatement was not trivial on its face, and the appellate court's treatment is brief. Nevertheless, the first-prong failure was independently dispositive, and the second-prong evidence (social worker's professional assessment, child thriving in placement, parents' continued drug use) did not depend on the erroneous figure, so the conclusion that the error did not affect the result is defensible on this record.

Authorities

  • relied: In re Autumn H. (1994) 27 Cal.App.4th 567 — A beneficial relationship is one that promotes the child's well-being to such a degree as to outweigh the well-being gained in a permanent adoptive home; factors include the child's age, portion of life in parental custody, positive or negative effect of interaction, and the child's particular needs.
  • relied: In re Brittany C. (1999) 76 Cal.App.4th 847 — The parent must show the parent-child relationship is such that the child would be greatly harmed by termination so as to overcome the presumption in favor of adoption.
  • relied: In re Jasmine D. (2000) 78 Cal.App.4th 1339 — A parental relationship, not merely a friendly or familiar one, is necessary for the beneficial relationship exception to apply.
  • relied: In re K.P. (2012) 203 Cal.App.4th 614 — Describes the split of authority over whether the beneficial relationship exception is reviewed for substantial evidence, abuse of discretion, or a hybrid of the two.
  • relied: In re C.F. (2011) 193 Cal.App.4th 549 — Sporadic visitation is insufficient to satisfy the regular visitation and contact prong of the beneficial relationship exception.
  • relied: In re Angel B. (2002) 97 Cal.App.4th 454 — The parent must prove severing the relationship would deprive the child of a substantial, positive emotional attachment causing great harm; a parent who failed to reunify cannot derail adoption merely by showing some benefit from visits.
  • relied: In re Casey D. (1999) 70 Cal.App.4th 38 — Delaying selection of a permanent home for an adoptable child does not promote the child's best interests.

The appellate opinion: sound — The opinion correctly states the two-prong test, acknowledges the standard-of-review split and explains why it need not be resolved, and ties each prong to specific record facts and the standard authorities (Autumn H., Angel B., C.F.). Its only thin point is the brief dismissal of the report's error about how long D.P. lived with her parents, but that factor could not change the outcome given Mother's independently dispositive failure on the visitation prong.

How this analysis was made · dispute it

Opinion

Filed 8/31/15 In re D.P. CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.P., a Person Coming D067879 Under the Juvenile Court Law. _____________________________________ SAN DIEGO HEALTH AND HUMAN (Super. Ct. No. EJ3700) SERVICES AGENCY, Plaintiff and Respondent, v. BROOK C., Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. Brook C. (Mother) appeals from an order terminating parental rights to her daughter D.P. under Welfare and Institutions Code section 366.26. (Undesignated statutory references are to the Welfare and Institutions Code.) Mother contends the insufficient evidence supported the juvenile court's finding that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i), applied. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Thomas P. (Father) started using drugs as young teenagers. In early August 2013, when D.P. was about two years old, Mother injected heroin residue from cotton balls, contracted blood poisoning and was hospitalized. Father was arrested for being under the influence and was unavailable to care for D.P. The San Diego Health and Human Services Agency (Agency) took D.P. into protective custody. A few days later, the Agency filed a petition alleging D.P. was at substantial risk of harm due to her parents' heroin use. The Agency placed D.P. in the home of the maternal great- grandmother. In September 2013, the juvenile court sustained the petition, declared D.P.

a dependent and maintained her placement with the maternal great-grandmother. It ordered reunification services be provided and set a six-month review hearing.

At the six-month review hearing in April 2014, the court found returning D.P. to parental custody would be detrimental and the services provided had been reasonable. It ordered six more months of services for Mother, but terminated court-mandated services to Father and continued D.P. as a dependent. During the dependency proceedings Father failed to address his substance abuse issues and suffered multiple arrests. At the 12- month permanency hearing in October 2014, the court terminated court-mandated 2 services to Mother, finding she had not made substantive progress with the provisions of the case plan and scheduled a hearing under section 366.26 to select and implement a permanent plan.

At the contested section 366.26 hearing in April 2015, the court found by clear and convincing evidence D.P. was likely to be adopted and none of the statutory exceptions to adoption existed. It terminated parental rights and referred D.P. to the Agency for adoptive placement. Mother timely appealed.

DISCUSSION

Parental rights may be terminated if there is clear and convincing evidence of adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that 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 adoptive parents. (In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) The parent must show that the parent-child relationship is such that the child will be greatly harmed by the termination of parental rights, so that the presumption in favor of adoption is overcome. (In re Brittany C.

(1999) 76 Cal.App.4th 847, 853-854.)

Implicit in this standard is that "a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000)

78 Cal.App.4th 1339, 1350.) The existence of this relationship is determined by taking into consideration "[t]he age of the child, the portion of the child's life spent in the 3 parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

There is a split of authority regarding whether an appellate court reviews a challenge involving the beneficial relationship exception for substantial evidence, abuse of discretion, or a combination of the two. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) We need not weigh in on this debate as our conclusion is the same under any of these standards.

Mother concedes there were gaps in her visitation, but claims she "partially satisfied" the first prong of the beneficial relationship exception. We disagree.

In September 2013, about a month into the dependency proceeding, Mother tested positive for methamphetamine. The following month, she was arrested after law enforcement found heroin and drug paraphernalia in the vehicle that she and Father were in. The parents were arrested for being under the influence. In October and November 2013, Mother attended three of four scheduled visits. In early December 2013, the criminal court issued a protective order prohibiting Mother from having contact with D.P.

About two weeks later, the criminal court modified the order and the parents were offered weekly supervised contact.

From January 2014 to July 2014, there is little in the record regarding Mother's visitation with D.P. A report dated April 2014 indicated that in early April 2014, Mother enrolled in "CRASH" long-term inpatient treatment and that visitation had not been consistent. Mother self-discharged from CRASH the following month. In August 2014, Mother's visits became more frequent. Again, from September 2014 to January 2015, 4 there is little in the record regarding Mother's visitation. In February 2015, the social worker reported that Mother did not maintain contact with the Agency and has not had Agency supervised visitation with D.P. since January 2015. In early April 2015, the month of the section 366.26 hearing, the social worker again reported that Mother's last visitation had been in January 2015. This record shows sporadic visitation which is insufficient to satisfy the first prong of the parent-child relationship exception to adoption. (In re C.F. (2011) 193 Cal.App.4th 549, 554.)

We also conclude that substantial evidence supports the juvenile court's determination that Mother did not meet her burden of establishing the second prong of the beneficial parent-child relationship exception. Satisfying the second prong requires the parent to prove that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent."

(In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

Although D.P. enjoyed her supervised visits with Mother, in the professional opinion of the social worker who prepared the Agency's section 366.26 permanency planning assessment report, the relationship Mother had with D.P. did not rise to the level of a significant parental role. The social worker noted that D.P. "demonstrated the ability to thrive in the absence of her parents" and that her caregivers wanted to adopt her.

Mother points out that the section 366.26 report contains an error, stating that D.P. lived 5 with her parents until she was seven months old, rather than two years and seven months.

Given the balance of the record, particularly the parents' long-term drug use and their resistance to drug treatment, this error is of little import.

We uphold the juvenile court's conclusion that no beneficial relationship existed such that termination of parental rights would be detrimental to D.P. Rather, D.P.'s prospective adoptive parents were providing her with the stability and affection she needed for her well-being. Delaying the selection of a permanent home for D.P. does not promote her best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

DISPOSITION

The order is affirmed.

McINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus