Filed 9/29/26 In re E.M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
In re E.M. et al., Persons Coming Under the Juvenile C105546
Court Law.
(Super. Ct. No. STK-JD-DP-
SAN JOAQUIN COUNTY HUMAN SERVICES 2022-0000387)
AGENCY,
Plaintiff and Respondent,
v.
E.M.,
Defendant and Appellant.
Appellant, mother of the minors, appeals from the juvenile court’s orders
terminating parental rights, freeing the minors P.C., K.C., and E.M. for adoption.
(Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare
and Institutions Code.) Mother contends the juvenile court erred in finding the beneficial
parental relationship exception did not apply as to minors P.C. and K.C. only. We
therefore dismiss the appeal as to minor E.M. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
We find mother’s claims as to minors P.C. and K.C. lack merit and affirm as to them.
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BACKGROUND
In 2016, mother (who had a history of substance abuse and untreated mental health
issues) came to the attention of the San Joaquin County Human Services Agency
(Agency) when she tested positive for marijuana after giving birth to minor K.C., who
also tested positive for marijuana and cocaine. The Agency provided mother with
substance abuse counseling services at that time, but she continued to use drugs to cope
with her depression.
In July 2022, mother discovered she was pregnant with minor E.M. Two months
prior, she tested positive for methamphetamine. In October 2022, when mother gave
birth to E.M., both tested positive for marijuana. Mother used marijuana throughout the
pregnancy, attended only two prenatal appointments, and was using marijuana while
breastfeeding E.M. at the hospital after delivery. The Agency tried to create a safety
plan, but mother was uncooperative, leading the Agency to detain the newborn E.M. and
her two minor half-siblings K.C. (age five) and P.C. (age seven) (sometimes referred to
as the boys) pursuant to a protective custody warrant. Because the minors could not be
placed in the homes of their noncustodial fathers, they were first placed in a foster home
and then moved to the home of the maternal great-aunt.
The Agency filed a dependency petition pursuant to section 300, subdivisions (b)
and (g), alleging the minors suffered, or were at substantial risk of suffering, serious
physical harm due to mother’s untreated and unresolved substance abuse and mental
health issues, as well as mother’s unstable living situation. In February 2023, the
juvenile court sustained the petition, declared the minors dependents, and ordered them
removed from mother’s custody. The court ordered the Agency to provide mother with
reunification services, including individual counseling, substance abuse treatment and
testing, and parenting education.
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Between October 2022 and July 2023, mother had little or no engagement in her
court-ordered services (including substance abuse treatment) and tested positive for
various substances. The social worker expressed to mother her concerns regarding
mother’s lack of engagement in services and explained that drug court was the most
important component of mother’s case plan. Mother promised to reach out to all her
service providers and begin services. As of July 2023, she had not done so. The Agency
reported that, although mother had consistent visitation with the minors, she failed to
fully engage in services or make significant progress in resolving the problems that led to
the minors’ removal. The Agency recommended the juvenile court terminate mother’s
reunification services.
By December 2023, mother had begun to engage in services, and the Agency
changed its position. Mother was reinstated to drug court and graduated from the
residential drug treatment program at New Directions in October 2023, after which she
enrolled in the outpatient program. She was testing negative for all substances and
maintaining consistent contact with the social worker. While at New Directions, she
graduated from parenting education classes and engaged in individual counseling.
Mother reportedly took accountability for her addiction and the behaviors which brought
her case to the Agency’s attention. The minors were reportedly moved from their
placement with the maternal great-aunt in May 2023 to a foster home for several months
and then moved again to another foster home where they had been since August 2023.
All three minors were happy and doing well in their new placement. Visits with the
minors were going well and the minors enjoyed their time with her. The social worker
was helping mother find adequate housing for herself and the minors and recommended
continuation of reunification services.
On December 14, 2023, the juvenile court ordered that mother’s reunification
services continue. During the next several months, mother suffered setbacks in her
recovery. She was terminated from the New Directions outpatient program due to
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admitted use of alcohol. She agreed to wear an alcohol detection device but consumed
alcohol again the following day. In January 2024, she tested positive for fentanyl. She
denied using fentanyl at drug court and was terminated from the program. At the
Agency’s recommendation, mother re-enrolled in the New Directions outpatient program.
The Agency reported its concern that mother was minimizing what was otherwise
a serious situation (e.g., testing positive for fentanyl). Further, while mother needed
stable housing and was provided with an application by the social worker, mother
returned the application past the deadline, causing her to be placed on a long waitlist for
Bringing Families Home. Finally, mother’s visits with the minors had to be moved from
unsupervised to supervised due to mother’s positive drug and alcohol tests. Moreover,
despite discussions against doing so, mother repeatedly had inappropriate discussions
with the minors about when they might be returning home.
The Agency concluded that, while mother remained engaged with her service
providers and social workers and had made strides since the minors’ removal, she had not
done so until later in the case. Although mother was consistent with visitation, the recent
setbacks (most notable being the January 2024 positive test for fentanyl) made it
impossible for in-home or overnight visits to begin. Mother’s lack of housing was
another barrier to reunification. Because the case was at the 18-month mark, there were
no extraordinary circumstances to justify continuing services for another six months and
the minors were not yet in a position to return to mother’s care, especially given mother’s
recent positive drug test, the Agency again recommended the juvenile court terminate
mother’s services.
By the time the review hearing took place on May 30, 2024, mother had made new
progress. She was expected to graduate drug court the following day, she was engaging
in additional counseling sessions, and she completed parenting classes. At the Agency’s
recommendation, the juvenile court continued mother’s reunification services.
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In October 2024, the Agency once again recommended the juvenile court
terminate mother’s reunification services. The Agency reported concerns that mother
was allowing an unknown man who she refused to identify attend her visits with the
minors. There were also concerns that mother allowed the minors to do as they pleased
with little rules or structure and no consequences for misbehavior or disrespect. She
focused primarily on E.M., leaving P.C. and K.C. to their own devices. Mother was not
receptive to guidance from the visitation monitor. She referred to the minors as “bro”
and admitted she at times treated the minors “more as friends” than her minor children.
For their part, the minors appeared to view mother more as a friend than a parent and
struggled to follow her directions. They were not receptive to her direction and ignored
her attempts to parent them. She continued to have inappropriate conversations with the
minors and referred to P.C. as a “snitch.” The minors, on the other hand, were reportedly
adapting well to their placement. P.C. accepted the foster family as his own and decided
to call the foster parents “mom and dad.” E.M. was very attached to one of her
caregivers, following her around everywhere. She also appeared to have a secure
attachment to mother.
I. Return of the Boys to Mother with Family Maintenance
On January 9, 2025, the Agency reversed course again, recommending the boys be
returned to mother’s custody with family maintenance services, and E.M. be returned to
mother’s custody one month later. The juvenile court adopted the recommended orders,
and the boys were returned to mother’s custody.
II. Supplemental Dependency Petition (§ 387)
On February 5, 2026, before E.M. was returned to mother’s care, the Agency filed
a supplemental petition (§ 387) alleging mother was seen on video with an unapproved
male smoking an unknown substance with him while the boys were present. It was
further alleged that mother tested positive for THC, cocaine, and “[o]xy” on January 19,
2025, during her intake appointment at St. Mary’s shelter. She tested positive for THC
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again on January 29, 2025. Mother admitted using substances and stated she was done
with drug court and her drug use was not impacting her ability to parent. She declined
any substance abuse services.
III. Minors Re-Detained
On February 6, 2025, the juvenile court ordered the minors detained pursuant to
the supplemental petition and ordered supervised visits for mother.
In March 2025, the Agency reported that, although mother completed her case
plan and remained in contact with the Agency, she did not demonstrate the necessary
behavioral changes. To support this conclusion, the Agency cited that mother had
completed the residential substance abuse treatment program in late-2024 but admitted
drinking alcohol two months later and was terminated from her outpatient program.
When she tested positive for various drugs in January 2025, she did not understand why
that was problematic stating she had already graduated drug court and her use of
substances did not impair her ability to parent. She tested positive for fentanyl but denied
having used the drug and was terminated from drug court. Mother took no accountability
for her relapses and became annoyed when confronted with the Agency’s ongoing
concerns.
Also of concern was the fact that mother reportedly discontinued K.C.’s
psychotropic medication to treat his ADHD without consulting the psychiatrist. K.C.
reported that, when he asked mother for his medication because it helped him “feel more
calm,” mother refused to give it to him because she “liked his personality without the
pills.” K.C.’s teacher reported it was difficult to control his behavior when he was placed
with mother; he did not listen, walked around at will, poured water on other students’
books, and swung his headphones around until he hurt someone. Attempts at redirecting
him were unsuccessful. P.C.’s teacher also noticed behavioral changes with P.C. after his
placement with mother. He refused to do any work, said “mom said I did not have to,”
and walked around the classroom bothering other students, making noises, and moving
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his chair around. Mother continued to struggle with appropriate parenting of all three
minors, treating them more as friends than children. The social worker attempted to
discuss age-appropriate parenting strategies, but mother did not understand the concerns
and became defensive. Given mother’s ongoing substance abuse and continued lack of
insight into the barriers to reunification after already having received 24 months of
services, the Agency once again recommended the juvenile court terminate her services.
On April 21, 2025, the juvenile court sustained the allegations in the supplemental
petition, ordered the minors removed from mother, terminated her reunification services,
and set the matter for a section 366.26 hearing.
As of August 2025, mother was no longer making herself available to the Agency
or responding to inquiries. The three minors were still living together in the same foster
placement and doing well. Although P.C. (then age 10) was struggling to control his
behavior in school and was not at grade level, he was developing a bond with his foster
family. K.C. (then age eight) also struggled with his behaviors in school as well as at
home. However, he was affectionate toward his foster parents. E.M. (then age two) was
diagnosed with autism and was nonverbal. She received assistance from service
providers and the foster parents in the home and developed a strong emotional bond with
her caregivers. The minors’ placement was stable and all their needs were being met.
The Agency reported its continued concerns regarding mother’s visits with the
minors. While the minors enjoyed the visits, mother exhibited inappropriate behavior
and failed to follow court orders by discussing with the minors the pending ICPC
(interstate compact on the placement of children), telling the minors they would be placed
with her and her family in Florida and the minors therefore did not need to be adopted,
purchasing a dog for P.C., encouraging P.C. to request to be returned home, and bringing
her male companion to visits. The foster parents reported that P.C. had begun exhibiting
negative behavior during his tutoring program and destroying property. As a result of
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these issues, the court reduced mother’s visits to once per month and admonished mother
for discussing the case with the minors.
The Agency also reported the minors had formed attachments and bonds with their
adoptive parents, who were committed to following through with adoption of all three
children. When asked how he felt about his placement and possible adoption, P.C. said,
“I love my mom and want to go home, but if I can’t I want to stay here. I can find my
mom again when I get older.” K.C. responded, “I love my mom, but I would prefer to
stay with my current foster family, if I can’t go home.” The Agency recommended the
juvenile court terminate parental rights, freeing the minors for adoption.
IV. Section 366.26 Hearing
At the contested section 366.26 hearing on January 12, 2026, social worker Randle
testified regarding mother bringing a male companion with her to visits, stating the
companion was reportedly taking pictures of the relative caregiver’s car and license plate
and “trying to intimidate her.” Randle also testified that mother was telling the minors
“they were all going to move to Florida and be a family.” Mother also promised P.C. a
dog he would get to name once they all moved to Florida.
Social worker Randle testified that she explained to P.C. and K.C. what adoption
and legal guardianship meant and the differences between the two. P.C. stated he wanted
to be adopted by his caregivers and take their last name and, when he turned 18, he would
go find his mother. K.C told Randle, “I’m strong enough to handle this and I want my
last name to be [caregivers’ last name].” Both boys told Randle, on several occasions,
that they wanted to be adopted. Randle further testified that the boys loved their mother,
enjoyed their visits with her, and were excited to see her. But neither one became upset
when visits ended nor did they express any negative feelings about not seeing her again.
Randle testified that the visitation supervisor observed limited interaction between
mother and the boys during visits. One of the boys was usually on mother’s cell phone
during visits while the other boy watched television. The day after visits with mother, the
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boys exhibited behavioral problems at school such as difficulties listening to the teacher
and following directions. Randle further testified that E.M. did not recognize mother
during visits. When mother greeted her, E.M. allowed herself to be hugged, picked up,
and kissed on the cheek but then wanted to be put down. There was little, if any,
interaction between mother and E.M., who was usually off playing by herself in the
corner. At the end of the visits, mother hugged and kissed E.M. and then gave her back
to the caregiver without incident. Randle testified the boys were happy and stable in their
foster home, had a good relationship with their foster parents, and were excited to
potentially take the foster parents’ last name.
Mother testified P.C. and K.C. were both bonded to her and hugged and kissed her
at the start of every visit. She claimed she did not have a bond with E.M. because E.M.
was so young when she was detained and because E.M. is autistic and nonverbal and
usually just plays by herself. She denied telling the minors they were all moving to
Florida to be together as a family, but she admitted telling P.C. she got him a puppy even
though she knew she was not going to be able to give it to him. Mother stated she wanted
guardianship as the permanent plan for the boys.
The juvenile court noted the case had been going on for three years and, during
that time, mother received both reunification and maintenance services which were
ultimately terminated. Regarding the beneficial parental relationship exception, the court
stated mother was consistent with visitation but there were some concerning issues during
those visits that led to the reduction of visits. By mother’s own admission, there was
little or no bond with E.M. P.C. and K.C. knew mother and expressed their desire to go
home to her but, if that was not possible, they wanted to stay with their foster caretakers.
The court noted the minors, each of whom had special needs, had been out of mother’s
care for an extended period. During that time, the caretakers had taken care of the
minors’ respective needs, including medical appointments and school-related issues, and
provided stability in the minors’ lives. The court further noted that any benefit the
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minors derived from visits with mother was “incidental” and not substantial enough to
require some plan other than permanency. The court concluded mother failed to
demonstrate that the minors would benefit from continuing the relationship such that
termination of that relationship would be detrimental to the minors. The court found the
minors likely to be adopted and terminated parental rights.
DISCUSSION
Mother contends the juvenile court erred in finding that the beneficial parental
relationship exception to adoption did not apply with respect to minors P.C. and K.C.
because it failed to conduct a proper analysis under In re Caden C. (2021) 11 Cal.5th 614
(Caden C.) and, in any event, there was sufficient evidence that termination of parental
rights would be detrimental to the boys. We find no error.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of several “ ‘possible alternative permanent plans for a
minor child.... The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] If the court finds the child is adoptable, it must 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, italics omitted.) There are limited circumstances
permitting the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (Id., subd. (c)(1)(B).) Such
circumstances include when the parents have maintained regular visitation and contact
with the child, the child would benefit from continuing the relationship, and termination
of parental rights would be detrimental to the child. (Id., subd. (c)(1)(B)(i) [beneficial
parental relationship exception]; Caden C., supra, 11 Cal.5th at pp. 625-626.)
The party claiming the beneficial parental relationship exception has the burden of
establishing supporting circumstances. (Caden C., supra, 11 Cal.5th at pp. 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 account
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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 parent
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.)
The beneficial parental relationship exception to adoption “must be examined 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 parent 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, 575-576.) The factual predicate 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 p. 630; In re K.P. (2012) 203 Cal.App.4th 614, 622.) We do not substitute
our judgment for that of the juvenile court as to what is in the child’s best interests.
(Caden C., at p. 641.)
There is no dispute that the first element, regular visitation and contact, was
satisfied. Mother argues the second element, that P.C. and K.C. have a substantial,
positive, emotional attachment to her such that they would benefit from continuing the
relationship, is also undisputed. While the Agency and the juvenile court acknowledged
the boys had a bond with mother, the quality of that relationship remained in question.
(In re M.V. (2023) 87 Cal.App.5th 1155, 1185 [the question is not “is there a bond?” but
what is “the quality of the parent-child relationship[]”].) Mother argues she was the
boys’ primary caregiver for the first six (K.C.) and seven (P.C.) years of their lives until
removal, she appropriately parented them during visits, and the boys expressed a desire to
return to her custody. She claims it was undisputed that the minors knew her as their
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mother and enjoyed their time with her. The record confirms K.C. and P.C. had affection
for their mother and enjoyed visits with her. However, during those visits, mother
referred to the boys as “bro” and, as she readily admitted, treated them “more as friends”
than her children. The boys also often appeared to view mother more as a friend than a
parent and struggled to follow her directions, ignoring her attempts to parent them. The
record further shows the boys spent much of the visitation time either watching
something on mother’s cell phone or playing with other children, time from which they
derived only “incidental benefit” in the words of the juvenile court.
Moreover, the juvenile court expressly found that mother did not meet her burden
to prove the third element, that her bond with P.C. and K.C. was so significant that
terminating it would be detrimental to the boys even when balanced against the
countervailing benefit of a new, adoptive home. (Caden C., supra, 11 Cal.5th at pp. 636;
In re S.B. (2008) 164 Cal.App.4th 289, 297.) We find no abuse of discretion here.
Although K.C. and P.C. spent the first six and seven years of their lives, respectively, in
mother’s care, they have spent the better part of the last three years out of her care and
with their current foster family. By all accounts, the boys had a good relationship with
mother, but they also developed a strong bond with their caretakers. K.C. was
affectionate towards his foster parents and P.C. called them “mom and dad.”
Mother claims the minors would suffer detriment if the relationship were to be
severed, as demonstrated by the fact that, after her visits were reduced to once per month,
K.C. told her he thought she died and it hurt his feelings, and P.C. told her he thought
about where she was and whether she was “safe and okay” when he went to bed at night.
But mother also testified K.C. also felt “a little indifferent,” and the social worker
testified the boys were merely “curious” as to why they were seeing mother less. The
Agency reported the boys felt “sad” not because there were less visits but because mother
failed to show up for visits that were scheduled. There was no evidence either minor ever
became upset when visits with mother ended, nor were there any reports that the boys
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expressed any negative feelings about not seeing her again. P.C. told the social worker
he wanted to go home “but if I can’t I want to stay here [with his foster family],” noting
he could find mother when he got older. He later stated he wanted to be adopted by his
caregivers and take their last name. K.C. stated, “I love my mom, but I would prefer to
stay with my current foster family, if I can’t go home.” K.C. also stated he wanted to
take his caregivers’ last name.
Mother surmises that the boys’ behavioral issues at school following visits with
her demonstrated their distress due to a disruption in their contact with her rather than
their regression due to the contact itself. We decline to speculate on the issue, noting
only that it was mother’s burden to establish the elements of the exception (Caden C.,
supra, 11 Cal.5th at pp. 636-637) and we do not reweigh the evidence or second-guess
the weight the juvenile court assigned to such evidence. Our mandate is to “uphold the
juvenile court’s determinations even where substantial evidence to the contrary also
exists.” (In re B.D. (2021) 66 Cal.App.5th 1218, 1225.) Mother has not established
error.
Finally, mother asserts the juvenile court committed reversible error by failing to
apply a proper Caden C. analysis when it found the beneficial parental relationship
exception did not apply. In particular, she claims the court improperly considered the
time the minors had been separated from her, the care the minors received from the
caregivers rather than her, the fact that her reunification services were terminated, and the
lengthy duration of the dependency, all evidence of failed reunification, a consideration
Caden C. prohibits according to mother. She also claims the court erroneously weighed
the prospective adoptive parents’ attributes against hers (i.e., the ability to provide
stability versus the inability to participate in services), another consideration prohibited
by Caden C. We reject mother’s assertions.
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As a preliminary matter, mother’s argument assumes the juvenile court’s
detriment conclusion was based solely upon those matters it stated on the record. (See In
re A.L. (2022) 73 Cal.App.5th 1131, 1156.) On the contrary, the record reveals the court
rendered its opinion after considering the Agency’s reports and the testimony of the
social worker and mother. (See In re Andrea R. (1999) 75 Cal.App.4th 103, 1109
[appellate record supported implied finding by juvenile court that parents had failed to
establish parental benefit exception].)
To be sure, Caden C. informs us that mother’s “continued struggles with the issues
leading to dependency are not a categorical bar to applying the [beneficial parental
relationship] exception.” (Caden C., supra, 11 Cal.5th at p. 637.) Mother argues
Caden C. prohibited the juvenile court from considering that evidence at all. Not so. “A
parent’s struggles may mean that interaction between parent and child at least sometimes
has a ‘negative effect’ on the child.” (Ibid.) Those struggles inform the specific
questions before the court: “would the child benefit from continuing the relationship and
be harmed, on balance, by losing it?” (Id. at p. 638.) Here, the juvenile court, having
considered the relevant reports and testimony, considered evidence that any benefit the
boys received from visits with mother was “incidental” and was marred by some
concerning issues. Those issues included mother’s minimal interaction with the boys, the
fact that she repeatedly allowed an unapproved man whom she refused to identify and
whom the boys described as “a gangster and violent” to attend visits with her, and her
repeated conversations with the minors about the case and moving to Florida to be
together as a family.
The court also considered that the boys expressed wanting to be adopted by their
foster family if they could not return home. That evidence was properly considered for
purposes of determining whether termination of parental rights would be detrimental. (In
re I.E. (2023) 91 Cal.App.5th 683, 694 [the “child’s wishes may be highly relevant
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evidence when determining whether termination of parental rights will be detrimental to
the child”].) Here, the boys had no trouble separating from mother when visits ended.
The court also considered that the minors all had special needs requiring stability
and permanency. This was properly considered to determine whether the benefit of
placement in a new, adoptive home would outweigh the harm the minors would
experience from the loss of a significant, positive, emotional relationship with mother.
(In re A.L., supra, 73 Cal.App.5th at p. 1158; Caden C., supra, 11 Cal.5th at p. 633.)
In sum, we find no error in the court’s determination that the beneficial parental
relationship exception does not apply here.
DISPOSITION
The appeal as to minor E.M. is dismissed. The juvenile court’s orders terminating
parental rights as to minors P.C. and K.C. are affirmed.
/s/
MESIWALA, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
BOULWARE EURIE, J.
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