Filed 6/30/26 In re A.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
In re A.M. et al., Persons Coming Under the
Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F091030
SERVICES,
(Super. Ct. Nos. JD145660-00,
Plaintiff and Respondent, JD145663-00)
v.
T.M.,
Defendant and Appellant.
In re M.N., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F090951
SERVICES,
(Super. Ct. No. JD145663-00)
Plaintiff and Respondent,
v. OPINION
O.N.,
Defendant and Appellant.
THE COURT*
* Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.
APPEAL from a judgment of the Superior Court of Kern County. Christie
Canales Norris, Judge.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant T.M.
Carolyn Hurley, under appointment by the Court of Appeal, for Defendant and
Appellant O.N.
Kendra L. Graham, County Counsel, and Raymond J. Abuele, Jr., Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
T.M. (mother) appeals from the juvenile court’s order terminating parental rights
(Welf. & Inst. Code,1 § 366.26) as to her minor child M.N.2 She contends the court erred
by failing to apply the beneficial parent-child relationship exception to termination of
parental rights (§ 366.26, subd. (c)(1)(B)(i)).
M.N.’s presumed father O.N. (father) has appealed separately in case No.
F090951, joining in mother’s arguments, and raising no independent issues, except to
note that any reversal of the order terminating mother’s parental rights should result in
reversal of the order terminating his parental rights as well. (See In re Mary G. (2007)
151 Cal.App.4th 184, 208.)3 This court has consolidated mother and father’s appeals for
the purpose of decision.
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2 Mother’s notice of appeal also listed M.N.’s sibling, A.M., for whom mother’s
parental rights were contemporaneously terminated, but she raises no issues as to A.M.
We include facts concerning A.M. only where relevant to understanding of the
proceedings and the issue raised by the parties.
3 Because both mother and father are arguing that the juvenile court erred by
declining to apply the beneficial parent-child exception only with regard to mother, we
limit facts pertaining to father in the interest of brevity.
2.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2024, the Kern County Department of Human Services
(department) filed a juvenile dependency petition on behalf of then four-year-old M.N.,
who lived with mother, alleging she came within the juvenile court’s jurisdiction under
section 300, subdivision (b)(1) (failure to protect) and (j) (abuse of siblings).4 The
petition alleged that M.N. had suffered or there was a substantial risk she would suffer
serious physical harm or illness as a result of mother’s failure to protect her from ongoing
domestic violence with mother’s boyfriend, T.S. The petition described recent domestic
violence incidents including where T.S. choked mother, causing her to lose consciousness
and urinate on herself; and where he assaulted mother and threw hydrogen peroxide on
mother, M.N., and one of M.N.’s siblings, after which mother declined an emergency
protective order. Mother allowed T.S. to return to the home after these incidents.
The petition further alleged that M.N. was at risk of abuse or neglect because of
past abuse or neglect of M.N.’s siblings. Two of mother’s older children had been
subjects of two separate juvenile dependency cases due to risk from mother’s substance
abuse, during which mother was offered reunification services, failed to reunify, and
parental rights were terminated. Additionally, the department reported that mother had
an extensive child welfare history consisting of several referrals of general neglect due to
ongoing domestic violence with father, including before and after M.N.’s birth.
4 Petitions were also filed on behalf of M.N.’s half siblings, A.M., A.G., and S.G.
As we have explained, A.M. is a subject of this appeal, but mother has raised no issues
pertaining to her. A.G. and S.G. are not subjects of this appeal. They were later declared
dependents and placed with their father with dependency dismissed. We omit facts
pertaining to A.G. and S.G.
3.
M.N. was removed from mother’s care, and on April 2, 2024, the juvenile court
ordered her to remain detained from both parents. The court ordered mother to be
provided with twice weekly two-hour supervised visits.
Mother thereafter began visiting with M.N. and her siblings. The visits were
reported to be generally good in quality. On occasion, M.N. would cry at the end of
visits and did not want to leave mother.
At the jurisdiction hearing conducted on May 17, 2024, the juvenile court found
the allegations in the petition true and that M.N. was described by section 300,
subdivisions (b) and (j), and continued the matter for disposition.
At the disposition hearing conducted on November 5, 2024, the juvenile court
adjudged M.N. a dependent, ordered her removed from mother’s custody, and denied
father’s request for placement. The parents were ordered to participate in family
reunification services, with mother’s case plan including counseling for child neglect
parenting and domestic violence as a victim.
During the subsequent reporting period, mother participated in her case plan but
ultimately did not complete it, and the department recommended reunification services be
terminated.
Due to mother’s work schedule, she visited with the children weekly rather than
twice weekly as the court ordered. The social worker reported that even though mother
visited only weekly, her visits were usually shorter than two hours and that she was only
partially meeting her case plan objective of visiting the children regularly. The visits
were still reported to be of generally good quality “when they happen.”
M.N. was in a resource family approved home with her sibling A.M. Both
children were doing well with their caregiver and were reported to be bonded with her.
The caregiver was interested in adopting the children, and the children were determined
to be appropriate for adoption/legal guardianship planning. A.M. reported that she
wanted to be adopted, but M.N. reported she wanted to live with mother.
4.
The department also reported it had discovered several law enforcement calls for
service to mother’s address from throughout the period of the dependency proceedings,
including June 2024, January 2025, February 2025, March 2025, and April 2025,
showing a continued relationship and continued domestic violence between mother and
T.S., despite mother having criminal protective orders against him. Mother later
explained that T.S. was going to her house without her consent, which is why she had
called the police, but the department was concerned that mother had not shared that she
had had contact with T.S.
At the combined six- and 12-month review hearing conducted on June 3, 2025, the
juvenile court terminated the parents’ reunification services and set a section 366.26
hearing. The court changed mother’s visitation order from twice weekly for two hours to
every other week for two hours.
On November 13, 2025, mother filed a section 388 petition requesting return of
the children on family maintenance services. Mother alleged she had completed her case
plan and continued to attend AA/NA meetings and had obtained better housing for the
children. The juvenile court ordered a hearing on mother’s petition, which ultimately
coincided with the section 366.26 hearing.
Ahead of the section 388 and section 366.26 hearings, the department
recommended that the juvenile court deny mother’s petition, terminate parental rights,
and order adoption with M.N.’s caregivers as her permanent plan.
The department confirmed that mother had completed her services and obtained
housing, but opined additional services were not appropriate based on mother’s continued
contact with T.S. that she had concealed, including recently giving birth to a baby, of
whom he was the father.
Mother attended, by the department’s count, approximately half of her scheduled
visits over the course of the proceedings, but her visits had become more consistent. The
visits continued to be reported as being of generally good quality. M.N. displayed
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positive emotions during the visits, and mother would bring food and toys for the
children, engaged with them, and disciplined them appropriately. However, on one
occasion, the supervisor observed mother making unnecessary negative comments about
the food M.N. ate, causing M.N. to be upset. While M.N. would show distress at the end
of visits earlier in the case, she was reported to “frequently leave [later] visits without
distress or emotional attachment.”
M.N.’s caregiver reported that M.N. had a negative change in behavior after visits
or comfort calls with mother but when she did not have calls from mother, she was calm
and well-behaved. M.N. was also experiencing conflict based on mother’s statements
that she would be living with her again. These statements caused confusion regarding
why she was not able to live with mother.
M.N. consistently reported she wanted to be returned to mother but when asked
why, she did not give an answer. M.N. reported crying at night because she missed
mother. When asked how often, she said “ ‘[j]ust sometimes.’ ” M.N. further reported
she liked living with her caregiver and called her “ ‘aunt’ ” or “ ‘mom’ ” but wanted to
live with mother. When asked how she would feel if she were to no longer visit with
mother, she responded, “ ‘Sad because I like seeing her.’ ”
The department further reported that it appeared that M.N. had created a bond and
strong relationship with her caregiver, whom she had been with since June 26, 2024, and
also had placement of A.M. It was observed at one point, that M.N. seemed “undecisive”
about living with mother or her caregiver. M.N. and A.M.’s caregiver still wished to
adopt them both, and M.N. was also considered generally adoptable based on her age and
freedom from any major developmental or medical concerns. The department opined
that due to the amount of time M.N. had been out of mother’s care and her age, it would
not be detrimental to M.N. to terminate parental rights.
The department later reported that they had received a referral alleging general
neglect of mother’s newborn child, of whom T.S. was the father. Mother worked with
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the department and demonstrated efforts to keep herself and the baby safe from T.S., and
the department ultimately closed the referral as unfounded. Later, however, the
department discovered that mother had lied about having no contact with T.S. Mother
appeared to be in a relationship with T.S. as evidenced by social media photos and
mother using T.S.’s last name on her social media profile. When the social worker
confronted mother about this, mother was evasive, and afterward, her and T.S.’s profiles
appeared to be deleted. The department decided to file a non-custody petition on behalf
of mother’s newborn.
The juvenile court conducted both a hearing on mother’s section 388 petition and
the section 366.26 hearing on December 22, 2025. The court first heard argument on the
section 388 petition and denied it. The court then proceeded to the section 366.26
hearing. The parties introduced no further evidence beyond the department’s reports and
proceeded by way of argument.
Mother’s attorney argued that the beneficial parent-child relationship exception
applied to M.N. She conceded there was “some question” as to whether there had been
consistent visitation but pointed to the department’s recent assessment that visitation had
been consistent since September 2025. She further asserted that M.N. was very bonded
with mother as evidenced by her being distraught when the visits ended. Father’s
attorney concurred with mother’s arguments.
M.N.’s attorney argued that mother had not been consistent and regular in
visitation and that while there was not a doubt that a bond existed between mother and
M.N., maintaining the relationship did not outweigh the permanence and stability M.N.
would receive from adoption and asked the court to follow the department’s
recommendation.
In ruling, the juvenile court stated it did not believe mother had proven visitation
was regular and consistent. It went on to state that it was “clear” that M.N. was bonded
to mother, but that her relationship with mother was having a negative impact on M.N.
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and her behaviors because mother was “promising things that she shouldn’t necessarily
promise” in connection with M.N. coming home to her. The court found that mother had
not met her burden to show that her relationship with M.N. was a substantial positive
relationship. Finally, the court found that, though M.N. would suffer some detriment
from losing her relationship with mother, “the evidence shows that the benefits of
adoption would outweigh that detriment.” The court terminated parental rights and
ordered adoption as M.N. and A.M.’s permanent plans.
DISCUSSION
Mother argues that the juvenile court erred by declining to apply the beneficial
parent-child relationship exception as to M.N. and further that the court misapplied
factors set forth in the California Supreme Court case In re Caden C. (2021) 11 Cal.5th
614 (Caden C.).
We disagree.
I. The Juvenile Court Did Not Err by Declining to Apply the Beneficial Parent-
Child Relationship Exception
A. Legal Principles and Standard of Review
At a section 366.26 hearing, when the juvenile court finds by clear and convincing
evidence the child is adoptable, and that services have been either appropriately provided
or denied in compliance with the law, it is generally required to terminate parental rights
and order the child be placed for adoption unless a statutory exception applies. (§ 366.26,
subd. (c)(1).)
One of the statutory exceptions is the beneficial parent-child relationship
exception, which applies when “[t]he court finds a compelling reason for determining
that termination would be detrimental to the child” where “[t]he 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).)
8.
A parent seeking to establish the beneficial parent-child relationship exception
applies has the burden to prove by a preponderance of the evidence three elements to
justify its application: (1) “regular visitation and contact with the child, taking into
account the extent of visitation permitted”; (2) “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 (3) “that terminating that attachment would
be detrimental to the child even when balanced against the countervailing benefit of a
new, adoptive home.” (Caden C., supra, 11 Cal.5th at pp. 632‒633, 636‒637.)
The second element may involve considering factors such as “ ‘[t]he 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 parent and child, and the child’s particular
needs,’ ” as well as “how children feel about, interact with, look to, or talk about their
parents.” (Caden C., supra, 11 Cal.5th at p. 632.)
The third element involves determining “how the child would be affected by
losing the parental relationship” by considering factors such as whether the child would
experience effects such as “emotional instability and preoccupation leading to acting out,
difficulties in school, insomnia, anxiety, or depression,” as well as how a “new, stable
home may alleviate the emotional instability and preoccupation leading to such problems,
providing a new source of stability that could make the loss of a parent not, at least on
balance, detrimental.” (Caden C., supra, 11 Cal.5th at p. 633.) The question for the
juvenile court is “does the benefit of placement in a new, adoptive home outweigh ‘the
harm [the child] would experience from the loss of [a] significant, positive, emotional
relationship with [the parent?]’ ” (Ibid.)
The juvenile court’s factual findings with regard to the first two elements are
reviewed for substantial evidence, and its ultimate determination with regard to the third
element of whether, in weighing competing interests, the facts constitute a compelling
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reason for determining termination would be detrimental to the child is reviewed for
abuse of discretion. (Caden C., supra, 11 Cal.5th at pp. 636, 639‒641.)
As relevant to the first and second elements reviewed for substantial evidence, we
note that because mother bore the burden of proof, we look to whether the evidence
compels a finding in her favor as a matter of law. (In re I.W. (2009) 180 Cal.App.4th
1517, 1528 [“where the issue on appeal turns on a failure of proof at trial, the question for
a reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law”].) With regard to the third element, “[a] court abuses its
discretion only when ‘ “ ‘[it] has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Caden C., supra, 11
Cal.5th at p. 641.)
B. Analysis
First, as to the first element– regular and consistent visitation – mother has not
established that the evidence compelled the juvenile court to find mother’s visitation was
regular and consistent. She contends that by finding mother had only attended
approximately half her visits, the court did not adequately take into account that mother
had longer visits once per week rather than shorter visits twice per week due to her work
schedule. However, there is no evidence to support mother’s assertion that mother’s
weekly visits were longer to make up for her inability to visit twice per week. To the
contrary, the department consistently reported that mother’s weekly visits were
frequently shorter than two hours and took this into account while estimating mother’s
visits. At the hearing, mother did not offer an alternate total but simply asserted that in
the few months before the hearing, mother’s visits had been consistent. There is no
evidence that the court relied on an incorrect count of visits, and we conclude that
mother’s attendance of half of the opportunities for visits does not compel a finding of
regular and consistent visitation. However, even if we were to agree with mother, this
conclusion would not be determinative; as we explain, the court, despite finding mother
10.
did not regularly and consistently visit, made findings as to the second two elements,
which we are able to review and conclude to be appropriate.
As for the second element – whether M.N. and mother had a substantial, positive,
emotional attachment – we acknowledge M.N. enjoyed visiting mother, was sad to leave,
wanted to live with mother, and by all accounts loved mother but conclude that mother
has not shown the evidence compelled this finding. M.N. was very young when removed
from mother, and her short life of living with mother was characterized at least in part by
instability, as evidenced by the ongoing domestic violence in the home between mother
and first, father, and later, T.S. M.N. was out of mother’s care for almost two years, a
significant portion of her life, and again while M.N. clearly expressed enjoying visiting
with mother, there were instances throughout the reporting that showed the relationship
was not always positive. The department reported during one visit that mother was
making inappropriate comments about M.N.’s food that was making her upset and toward
the end of the case, frequently made comments about M.N. being able to return home to
mother, which confused M.N. M.N. was reported to be calm and well behaved when not
having comfort calls with mother but was reported to act out and have bad behaviors after
calls, as well as visits.
Finally, as to the third element – whether M.N. would suffer detriment when
weighed against the benefit of being adopted – the juvenile court reasonably concluded
based on the evidence that any detriment M.N. would suffer was outweighed by the
benefits of adoption. Despite M.N.’s expressed desire to live with mother, she appeared
to be doing well out of mother’s care and was observed to have a bond with her
caregivers. Mother did not offer proof that M.N. had special needs that could only be
met by mother nor that she would suffer great harm if she were to stop visiting mother.
The juvenile court’s determination was not arbitrary, capricious, or patently absurd.
11.
II. The Juvenile Court Did Not Misapply the Law
Mother contends the juvenile court “failed to consider” M.N.’s consistent
expressed desire to live with mother in contradiction with section 366.26, subdivision
(h)(1), which provides “the court shall consider the wishes of the child and shall act in the
best interests of the child.” Mother has not established error.
A child’s wishes, while they may be “highly relevant,” “are not necessarily
determinative of whether termination of parental rights will be in the child’s best
interest.” (In re I.E. (2023) 91 Cal.App.5th 683, 694) Here, there is no evidence that the
juvenile court did not give due weight to M.N.’s preference. In delivering its ruling, the
court stated it had read and considered the social worker’s reports prepared for the
hearing, which contained ample evidence regarding M.N.’s statements concerning her
preferences and feelings, and the court acknowledged M.N. and mother had a bond.
Notably, M.N.’s attorney, as a representative for M.N.’s best interests, did not request the
court to apply the exception and argued that mother had not met her burden to show it
applied. The court could reasonably determine based on the evidence and argument
presented at the hearing that M.N.’s statements did not compel it to find the beneficial
parent-child relationship exception applied.
Mother also contends the juvenile court relied on “improper factors,” such as
mother’s continued relationship with T.S. Assuming for the purpose of mother’s
argument that this was an improper factor for consideration, as respondent points out, the
record shows that the juvenile court did not reference mother’s relationship with T.S. in
relation to whether the exception applied, but as to whether mother’s section 388 petition
for reinstatement of services, heard on the same day as the section 366.26 hearing, should
be denied. Mother has not responded to this correction, as she did not file a reply brief.
Mother has not established that the juvenile court relied on improper factors or
otherwise misapplied the law; rather, the record shows the juvenile court’s analysis was
12.
properly focused on the relationship between mother and M.N. and its effect on M.N. and
her best interests.
For the foregoing reasons, we find no error.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.
13.