In re K.S. CA4/3

Filed 11/9/26 In re K.S. CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE In re K.S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, G066782 v. (Super. Ct. No. 20DP0036A) K.T., OPINION Defendant and Appellant. Appeal from an order of the Superior Court of Orange County, Michael T. Mooney, Judge. Affirmed.  Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor. * * * K.T. (Mother) appeals from an order terminating her parental rights over her child K.S. On appeal, Mother argues the juvenile court erred by not applying the parental-benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).1 We disagree and therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND In February 2024, the Orange County Social Services Agency (SSA) filed a petition and an amended petition asserting K.S., who was then seven years old, came within the jurisdiction of the juvenile court. Among other things, SSA alleged there had been domestic violence between Mother and her boyfriend in the presence of K.S., Mother’s residence and home environment were not a safe and stable environment for K.S., Mother was unable to provide for K.S.’s basic needs and had failed to ensure his educational and developmental needs were appropriately met, and Mother had a history of substance abuse.2 SSA noted there had been a prior child 1 All undesignated statutory references are to the Welfare and Institutions Code. 2 SSA also included allegations regarding K.S.’s father, B.S. (Father), who lived in another state. Father’s parental rights also were terminated in the current proceedings, but he did not appeal and is not a party to this appeal. 2 welfare case involving K.S. in 2020, in which the juvenile court found K.S. came within its jurisdiction under section 300, subdivisions (b), (g), and (j). In that case, K.S. had been returned to Mother’s custody in June 2021, and the proceedings ended in 2022 with Mother having sole custody of K.S. When SSA filed its initial petition, it was unaware of the then- current whereabouts of K.S. SSA later learned Mother had taken K.S. to Wisconsin and left him in the care of K.K. and A.K., who had adopted K.S.’s younger half-sibling. Mother supposedly had been homeschooling K.S., but K.S. told SSA it was hard for her to teach him, and most days she would try to teach him but she did not. K.S. also said that, while living with Mother, he sometimes would not eat dinner and the refrigerator sometimes would not have food. In its April 2024 jurisdiction and disposition report, SSA reported Mother had daily video calls with K.S., but when her phone did not have service, she would go a few days without visiting with the child. In April 2024, the juvenile court (Judge Julie Anne Swain) found the allegations in the petition, as amended by interlineation, to be true by a preponderance of the evidence and found K.S. was within its jurisdiction under section 300, subdivisions (b)(1) and (j). The court declared K.S. to be a dependent of the court and authorized K.S. to remain in his current placement. Mother appealed, and a panel of this court concluded substantial evidence supported the disposition order, but the juvenile court failed to satisfy its duty of further inquiry under the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and the California Indian Child Welfare Act (§ 224 et seq.). (In re K.S. (Oct. 18, 2024, G064072) [nonpub. 3 opn.].) Thus, this court conditionally reversed the disposition order and remanded for further proceedings. (In re K.S., supra, G064072.)3 During the reunification period, SSA reported Mother made minimal progress on the case plan. SSA also reported there had been concerns regarding Mother’s behavior. For example, SSA noted that, in October 2024, Mother “insisted someone was trying to traffic her and the child and informed the caregivers she was in communication with the Federal Bureau of Investigation . . . to stop the traffickers”; “[i]n November 2024, . . . [M]other became paranoid that the child was being trafficked by . . . SSA, and it was reported she posted videos on social media regarding her concerns and also showed the videos to the child, who did not engage in conversation with . . . [M]other regarding her concerns”; and in another social media post, Mother “state[d] that after tipping the [Federal Bureau of Investigation] regarding the child being trafficked, his fingertips were amputated at childcare.” Additionally, during a call with K.S. in April 2025, Mother became triggered after K.S. said he had gone to the dentist, and she told him child protective services was the devil and traffics children. Mother also called the police multiple times for wellness checks of the caregivers’ home in Wisconsin. After Mother had called the police twice in the same day, “the caregivers observed the child to be abnormally affectionate towards them, initiating hugs and telling them he loves them,” and he got up from bed that night to give them hugs and say he loves them. SSA reported Mother continued to regularly have video calls with K.S., but the quality of the calls declined because of her behavior. SSA noted 3 The juvenile court subsequently found ICWA does not apply, which Mother does not dispute on this appeal. 4 Mother’s conversations with K.S. were primarily about Mother, rather than topics relevant to K.S., and although K.S. expressed a desire to maintain a relationship with Mother, he recently had shown less interest in talking to her and the caregivers often needed to encourage him to talk to her. SSA also reported K.S. initially had been very behind academically but had made a large amount of progress since attending school regularly. Although Mother asserted K.S. had autism and attention deficit hyperactivity disorder (ADHD), K.S. did not exhibit any signs of either. K.K. and A.K. expressed they would like to adopt K.S. if he is unable to reunify with his parents, and K.S. said he would like to be adopted by them and still have visits with Mother. In May 2025, the juvenile court terminated reunification services for Mother but did not terminate reunification services as to Father at that time. Several months later, in August 2025, the juvenile court (Judge Michael T. Mooney) terminated reunification services as to Father. Following termination of Mother’s reunification services, SSA reported K.S. was thriving where he was placed and was succeeding academically. SSA noted K.S. expressed he is happy and would like to continue being placed there, he would be scared to return to California to live with Mother, and he would like to remain in placement but continue to visit with Mother. K.K. and A.K. indicated they wanted to adopt K.S., who said he wanted to be adopted by them. Mother continued to speak with K.S., although there were times the calls were inconsistent. SSA reported Mother’s behavior during calls continued to be a concern. In June 2025, Mother again called the police for a wellness check, and she told K.S. the caregivers had kidnapped him. Mother did not engage K.S. on topics he was interested in, and she instead discussed 5 “topics irrelevant to the child such as the Los Angeles Riots and the Apocalypse, which results in the child losing interest.” K.S. “expressed less interest in participating in the visits with . . . [M]other and occasionally refuses to take the phone from the caregivers when . . . [M]other is calling.” K.S. said he enjoys speaking with Mother and the visits are good, but when asked to rate his visits with Mother from one to ten, he stated “‘five, four, or three.’” K.S. said he did not want to have in-person visits with Mother at that time but that he might want to in the future. Mother was unreachable for several weeks in September 2025. On a September 24, 2025 call, Mother told K.S. he had autism and needed therapy, and in the following days, K.S. had incidents at school that were out of character for him. In October 2025, the caregiver noted that approximately 75 percent of the calls over the past 20 months “have focused more on [Mother’s] personal circumstances—such as feeling tired or unwell—rather than on [K.S.] himself,” and in approximately 35 percent of the calls, K.S. “required significant encouragement to participate, often expressing reluctance or hesitation to speak with” Mother. However, the caregiver said that, since the beginning of October 2025, there had been a positive shift in Mother’s demeanor. K.S. expressed he enjoys the visits with Mother and is able to share with her information regarding his schoolwork and games. In early 2026, SSA continued to report K.S. enjoyed the almost daily calls with Mother, “although sometimes he has to be encouraged by the caregivers to participate in the calls.” On March 30, 2026 and April 1, 2026, the juvenile court held a hearing under section 366.26 and on a petition Mother had filed pursuant to 6 section 388 that sought reinstatement of reunification services.4 K.S. and Mother testified, and the court admitted various exhibits offered by Mother and SSA. K.S. testified, among other things, he liked living with K.K. and A.K. He said he liked living there because he can play with his brothers and play a lot of sports, and he would be a “little sad” if he could no longer live with K.K., A.K., and his brothers because he has fun and likes it there.5 K.S. testified he usually speaks to Mother every day and there is never a time when he does not want to speak to her on the phone. He stated he would like to continue having phone calls with Mother and would be sad if he could not have phone calls with Mother every day or see her again. K.S. said he is excited to tell Mother about the good things that happen during his day, and when he is feeling sad and talks to Mother about it, she makes him feel better on the phone calls. K.S. said some phone calls with Mother can be long and some can be short, with the long calls being about two to three minutes and the short ones being about one minute. K.S. testified the last time he saw Mother in person was when he was about seven years old. K.S. said he did not want to come back to California and live with Mother because he is “nervous” and he would not “have anybody to play with” and could not “do that many sports that [he does] now.” He also said he was scared about living with Mother “[b]ecause, like, [he does not] know if something bad is going to happen . . . .” He said he 4 Mother filed her section 388 petition in October 2025. Among other things, Mother asserted she had made “substantial efforts toward alleviating the concerns which brought the case before the court.” 5 A.K. and K.K. have three children, including K.S.’s half-sibling, who they had adopted. 7 would like to visit Mother in California. When asked who he would want to live with if he could build a house, he identified A.K., K.K., his brothers, and his dog, but not Mother “[b]ecause maybe they will get into a fight or something like that.” He added, “[l]ike [Mother] will probably, like, start, like, a conversation fight, like not a fighting, but like talking” with K.K. and A.K. He stated he referred to Mother as “[m]om.” K.S. further testified he would like it if he could continue living with K.K., A.K., and his brothers and continue talking with Mother or possibly visiting her in person. When asked if his conversations with Mother are special and if they are very different from conversations with K.K., K.S. said no and that they were the same type of conversations. K.S. said he wanted to be adopted by K.K. and A.K. and that would make him happy. When asked if his opinion would change if being adopted by K.K. and A.K. meant he could no longer talk to Mother, K.S. responded “[n]ot really, but— no.” When asked if he would like an option in which he continued living with K.K. and A.K. but could continue talking and visiting with Mother, K.S. responded affirmatively. However, when asked to choose between being adopted by K.K. and A.K. or continuing to live where he is now but not be adopted, K.S. said he would prefer to be adopted. Mother testified, among other things, that she has been attending group and individual therapy and alcoholics anonymous sessions, she has taken parenting courses, and she is participating in drug testing. She noted the last time she saw K.S. in person was in January 2024, but she talks to K.S. every day and sometimes twice a day. She said she speaks with K.S. about school and helps him with homework. She further noted, “[i]n the beginning, all he talked about was coming home and he asked [her] why [she] left him there. And he discussed how he didn’t want to be there and how he 8 wanted to come home, which is—that is why [she is] a little concerned about today’s testimony and how much the lack of visitation in person has altered that relationship.” Mother testified she is asking for reunification services and she and K.S. will be irreparably damaged if they are separated. She said “there was no reason to separate [them] in the first place because [she] put him in a safety plan of [her] own for the best protection of him in a protective effort.” She said it is SSA’s fault that K.S. has not seen her in person in two years. Mother stated she has not used drugs for at least eight years. However, when asked when she first used methamphetamines and alcohol, Mother refused to answer the question, explaining she was “not here for substance use.” After hearing the evidence, the juvenile court heard arguments regarding Mother’s section 388 petition and denied that request. After further arguments, the court issued its ruling regarding the section 366.26 hearing. The court found it is likely K.S. will be adopted. The court also rejected Mother’s argument that the parental-benefit exception applies. The court found the first element of that exception was met, but that neither the second nor third element was met. (See In re Caden C. (2021) 11 Cal.5th 614, 631–636 (Caden C.) [discussing the three elements of the parental-benefit exception].) The court therefore found Mother had not demonstrated the parental-benefit exception applied, and it terminated parental rights. Mother appealed.6 6 Mother’s opening brief on appeal states this appeal “is from the April 1, 2026 combined section 388 and section 366.26 hearing denying [M]other’s modification petition requesting further reunification services and terminating parental rights so that the child could be adopted by his current nonrelative caregivers in Wisconsin.” But Mother’s appellate briefing does not argue the court erred in denying her petition under section 388, and she 9  DISCUSSION I. THE PARENTAL-BENEFIT EXCEPTION “‘“Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” [Citation.] “A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.” [Citation.]’ [Citation.] Where possible, adoption is the Legislature’s preferred permanent plan. [Citation.] ‘“Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.”’” (In re Andrew M. (2024) 102 Cal.App.5th 803, 814 (Andrew M.).) “‘“‘[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.’” [Citation.]’ [Citation.] Thus, ‘[w]hen the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions.’” (Ibid.) “The exception relevant here is commonly called the parental- benefit exception.” (Andrew M., supra, 102 Cal.App.5th at p. 814; see § 366.26, subd. (c)(1)(B)(i) [“The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship”].) “A parent claiming that the exception applies has the burden of establishing it by a preponderance of the evidence. [Citation.] To establish that the exception applies, the parent must show three things: (1) the parent therefore has forfeited any challenge to that ruling. (See In re P.L. (2024) 100 Cal.App.5th 406, 409, fn. 4 [concluding a father forfeited an issue where “his opening brief contains no argument challenging” the order].) 10 maintained ‘regular visitation and contact with the child, taking into account the extent of visitation permitted’; (2) ‘the child has a substantial, positive, emotional attachment to the parent’; and (3) ‘terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.’” (Andrew M., at p. 815.) “The first element—regular visitation and contact —is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632.) “As to the second element, courts assess whether ‘the child would benefit from continuing the relationship.’ [Citation.] Again here, the focus is the child. And the relationship may be shaped by a slew of 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.’” (Caden C., supra, 11 Cal.5th at p. 632.) “‘[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.’” (Andrew M., supra, 102 Cal.App.5th at p. 816.) “To satisfy this element, parents ‘must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits’ [citations], they must establish a substantial, positive, emotional attachment between them and the child [citation].” (Ibid.) “Concerning the third element—whether ‘termination would be detrimental to the child due to’ the relationship—the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. [Citations.] Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. 11 [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life.” (Caden C., supra, 11 Cal.5th at p. 633.) “A ‘“showing [that] the child would derive some benefit from continuing a relationship maintained during periods of visitation”’ is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] It is only ‘[w]hen the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, [that] termination would be “detrimental to the child due to” the child’s beneficial relationship with a parent.’” (Andrew M., supra, 102 Cal.App.5th at p. 818.) “‘A hybrid standard governs our review. [Citation.] The first two elements involve factual determinations to which the substantial evidence standard of review applies. [Citation.] The final step, determining whether termination of parental rights would be detrimental to the child, is reviewed for abuse of discretion.’” (Andrew M., supra, 102 Cal.App.5th at p. 815; see also Caden C., supra, 11 Cal.5th at pp. 639–641.) “However, when the party with the burden of proof did not carry the burden, ‘the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.”’” (In re M.V. (2025) 109 Cal.App.5th 486, 508.) 12  II. ANALYSIS Mother contends the “order terminating parental rights should be reversed because she met the requirements of the” parental-benefit exception under section 366.26, subdivision (c)(1)(B)(i). We disagree. As an initial matter, the juvenile court found that Mother met the first element of the test, and that element is not disputed by the parties on appeal. We conclude the court’s finding on the first element is supported by substantial evidence because evidence supports that Mother regularly spoke with K.S. As to the second element, Mother argues there was “ample evidence” that K.S. “would benefit from continuing the relationship” and she therefore “satisfied the second Caden C. prong.” Mother notes the juvenile court recognized there was a bond between K.S. and her, and she points to other evidence purportedly supporting the benefit to K.S. of continuing the relationship, including that they had almost daily video calls, K.S. had spent the majority of his life in her care, and K.S. said he enjoyed visits with Mother, wanted them to continue, and would be sad if they stopped. Mother concedes there were some negative interactions, including the call in September 2025, but she asserts that is not determinative and her calls had improved in quality. The problem with Mother’s argument is that it disregards the standard of review. The standard is not whether there was evidence that could have supported a contrary finding, but rather whether the evidence compelled a finding in Mother’s favor as a matter of law. Under that standard of review, we cannot conclude the evidence compelled a finding that Mother met the second element of the three-part Caden C. test. There was sufficient 13 evidence supporting the juvenile court’s determination that Mother had not shown K.S. had a substantial, positive, emotional attachment to her. Although Mother regularly spoke with K.S., K.S. testified their long calls lasted only about two to three minutes and their short calls were about one minute.7 Additional evidence supported that the calls between K.S. and Mother did not show a substantial, positive, emotional attachment and that K.S. experienced negative effects from some of his interactions with Mother. For example, Mother told K.S. he had autism (although, as noted above, K.S. had not exhibited signs of autism) and after that call, K.S. acted out of character at school in the following days. In other calls, Mother discussed topics of no interest to K.S. such as riots in Los Angeles and the apocalypse, and Mother insisted she was coming to get K.S. Although K.S. testified there is never a time when he does not want to speak with Mother, there was evidence—which the court was entitled to credit—that he often had to be encouraged to speak with Mother. Mother contends the juvenile court’s “brief and simplified remarks failed to show that the juvenile court conducted the requisite analysis of the complicated emotional relationship [K.S.] shared with [M]other.” Mother further contends the court “failed to consider the positive interactions and then engage in the required balancing test. Had the court conducted the requisite test, ample evidence showed that the positive interactions outweighed the negative as shown by the child’s statements he wanted the visits to continue.” The court provided an explanation at the 7 Additionally, although K.S. testified he would be sad if he could not speak with Mother anymore, he also testified his opinion about wanting to be adopted would not change even if that meant he would not speak with Mother anymore. 14 hearing, and the record does not support Mother’s suggestion that the court failed to analyze the issue or that it ignored evidence favorable to Mother when it concluded the second element of the parental-benefit exception was not met.8 (See Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [“‘It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties’”].) To the extent Mother is arguing the juvenile court was required to provide a more detailed explanation of its reasons for finding the second element was not met, she cites no authority supporting her position. We conclude the court was not required to provide further detailed findings or analysis. (See In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [noting the court was aware of no requirement “that the juvenile court, in finding the parental-benefit exception inapplicable, must recite specific findings relative to its conclusions regarding any or all of the three elements of the exception”].) In sum, the evidence does not compel a finding in favor of Mother on the second element of the parental-benefit exception, and thus, the juvenile court did not err in finding the exception did not apply. Given our conclusion, it is not necessary for us to determine whether the juvenile court abused its discretion in determining the third element of the exception also was not met. (See In re M.V., supra, 109 Cal.App.5th at p. 514 [“Our determination that the evidence did not compel a finding in the parents’ favor 8 To the contrary, the court noted there was a bond between Mother and K.S. and that K.S.’s interactions with Mother had some level of positive effect on K.S.; but it also found the evidence “clearly shows negative effects experienced by” K.S. as a result of his interactions with Mother. 15 on the second element of the Caden C. test makes it unnecessary to evaluate the third element of the test”].) DISPOSITION The order terminating Mother’s parental rights is affirmed. GOODING, J. WE CONCUR: MOTOIKE, P. J. SERVINO, J. 16