Congresswoman proposes…..
constitutional amendment to protect parental rights

Republican U.S. Congresswoman Debbie Lesko has proposed an amendment to the U.S. Constitution that guarantees the fundamental right of parents to make the best educational decisions for their children.

In a press release, Lesko states that the amendment is necessary to protect parents from those seeking to “eliminate educational choices for their families.”

Parents have a fundamental right to be involved in their children’s education and to be able to choose the best educational options for their families. I am pleased to introduce this Constitutional Amendment to protect parents from far-left school board officials and government bureaucrats in the Biden Administration who have actively worked to undermine parental rights and eliminate educational choices for their families.

The legislation would ensure that parents have the right to “choose an alternative to traditional public education and make reasonable choices within public schools for their children,” stating that parents are in the best position to “direct the upbringing, education, and care of their children.”

Republicans have historically been the party that has preferred to have matters such as these fleshed out at the local level, rather than relying on federal mandates to protect these rights. However conservative lawmakers, and more importantly the constituents they serve, have become increasingly frustrated with local school boards who have been indifferent, and even hostile, to parents concerned with what their kids are being taught.

While some might feel that amending the Constitution to protect these rights is a step too far, Jim Mason, chairman of the board for the Parental Rights Foundation disagrees. He states, “The Supreme Court in 1923 said ‘the child is not the mere creature of the State,’ but many of today’s bureaucrats have lost sight of that. This amendment will permanently codify that precedent and restore a proper respect for the vital parent-child bond in America.”

Lesko and other proponents of the amendment are not willing to rely on 100-year-old case law to ensure these parental rights.  A constitutional amendment is much less subject to interpretation and is harder to repeal down the road.

Josh Hawley proposed similar legislation – though not a constitutional amendment – last year that would protect parents’ abilities to have a say in their child’s education by enacting a Parent’s Bill of Rights. Hawley’s bill would “prohibit nondisclosure agreements concerning curriculum; let parents make copies of classroom material; require schools to have parents opt their children into field trips, assemblies, and other extracurricular activities; and in general require more transparency from school boards and educators concerning things like student records and safety.”

Lesko’s proposal also follows Florida Gov. Ron DeSantis passing of the Parental Rights in Education Bill in March which states that a “school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.”

At the time a poll revealed that the legislation was popular even amongst Democratic primary voters with 52% saying they were in favor of the legislation, while only 36% were opposed.

Many voters have applauded the legislative efforts of conservative politicians on the matter. A Parental Rights Foundation poll from earlier this year showed that 80% of Americans agreed with the statement, “In general, parents have the constitutional right to make decisions for their children without government interference unless there is proof of abuse or neglect.”

Despite the unpopularity of the liberal agenda, the assault on parental rights continues to increase in both frequency and reach. As FISM previously reported, one Virginia state legislator recently introduced a bill to criminalize parents who don’t affirm their child’s self-identified sexual identity. Additionally, in California, a new law creates a “sanctuary state” for child “sex changes”.

The issue of parental rights in education could have a big impact on midterm results, as parents are telling pollsters that the issue is one of their top concerns influencing how they plan to vote in November. Curt Flewelling, FISM News

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The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution,
protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

In re Caden C.: The Supreme Court Recognizes No Parent is Perfect

“The dependency statutes were enacted to prevent harm to children. They prevent harm at the outset of the dependency process by removing children from situations where they are likely to suffer abuse or neglect. But they also prevent harm in the process of selecting permanent placement through the parental-benefit exception, by allowing certain children to preserve emotionally important parental relationships.” (In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).)

At a hearing on termination of parental rights, the court is required to consider a “permanent plan” for a child in the following order of preference: adoption, legal guardianship, and long-term foster care. (Welf. & Inst. Code § 366.26, subd. (b)) The “parental-benefit exception” allows parents to prevent termination of their rights if, by a preponderance of the evidence, they can show:

1) “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 — the kind of attachment implying that the child would benefit from continuing the relationship;” and
3) “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 636; See also In re Autumn H. (1994) 27 Cal.App.4th 567; Welf. & Inst. Code § 366.26, subd. (c)(1)(B)(i); Evid. Code, § 115.)

The California Supreme Court’s 2021 decision in Caden C. gives parents and children a small ray of hope when parental rights are at stake. It clarifies preexisting law, recognizing the humanity of parents in juvenile court and the importance of children’s relationship with them. It also clearly instructs judges to stop adding conditions to the parental-benefit exception above and beyond those already required by statute.

Factual and Procedural Background

The Child Welfare Agency (“the Agency”) removed four-year-old Caden from his mother’s care due to her drug use, suicidal ideation, and homelessness. Caden was placed with a non-related extended family member (“NREFM”) before returning to his mother’s care in July, 2014. Mother received Family Maintenance services until June, 2016 when the Agency removed Caden again due to her relapse.

The court was prevented by statute from granting Mother additional services. It made an order placing seven-year-old Caden in long-term foster care, in part to give Mother time to regain stability and sobriety.

In January 2018, the court set a “Selection and Implementation Hearing” pursuant to Welfare and Institutions Code section 366.26 (“.26 hearing”). After four days of trial, including dueling expert testimony, the court did not terminate Mother’s parental rights, finding that it would be detrimental to Caden to do so. Now about nine years old, Caden’s two remaining options were either legal guardianship or continued long-term foster care. Caden’s NREFM caregiver asked that Caden remain in her home under a plan of long-term foster care due to her concerns about Mother’s behavior if the court ordered legal guardianship. The court granted that request, and the Agency and Caden’s attorney appealed.

The First District Court of Appeal reversed, holding Mother’s parental rights should have been terminated. It found that “no reasonable court could have concluded that a compelling justification had been made for forgoing adoption.” (In re Caden C. (2019) 34 Cal.App.5th 87, 115.) It opined that there was little chance Caden would ever return to his mother’s care and that Caden’s relationship with his mother was sometimes difficult, rocky, and had not been perfect for many, many years, which undercut the trial court’s findings. The appellate court argued that Mother’s failure to address the problems which led to the dependency meant “no reasonable court would apply the beneficial relationship exception …” (Id. at p. 112.) It remanded the case to the juvenile court, strongly suggesting termination of Mother’s parental rights. (Id. at p. 116.)

Supreme Court’s Ruling

On review, the Supreme Court reversed. Its opinion obliterates the idea that the parental-benefit exception should not apply due to a parent’s ongoing struggles with sobriety. The Supreme Court pointed out that “…when the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency.” (Caden C., supra, 11 Cal. 5th at 637.) “[M]aking a parent’s continued struggles with the issues leading to dependency, standing alone, a bar to the exception would effectively write the exception out of the statute.” (Ibid.) “The parent’s continuing difficulty with mental health or substance abuse may not be used as a basis for determining the fate of the parental relationship by assigning blame, making moral judgments about the fitness of the parent, or rewarding or punishing a parent.” (Id. at p. 638.) Nor can trial courts use the implausibility of future reunification to undermine the parental-benefit exception. “Even where it may never make sense to permit the child to live with the parent, termination may be detrimental.” (Id. at p. 634.)

The Supreme Court’s decision rebukes the idea floating around in lower courts that parents are not only required to meet the three elements of the parental-benefit exception but also must demonstrate a some additional “compelling reason . . . termination of parental rights would be detrimental to the child…” (Id. at p. 631.) Caden C. states proving the three statutory elements of the parental-benefit exception is compelling enough.

Conclusion

If you have a parent client who is facing termination of their parental rights, you should always consider presenting expert testimony about the bond between the parent and child. Attorneys representing children need to seriously consider supporting legal guardianship to protect their clients’ rights to maintain beneficial relationships with their parents.
Caden C. has given dependency practitioners a great deal of hope and clarity. Generally, if social workers and minors’ counsel support termination of parental rights, it is nearly impossible to prevent the termination from happening. Caden C. clearly removes the additional requirement of showing a further “compelling reason” used by trial courts and the Court of Appeal to justify termination of parental rights.

cited https://www.cccba.org/article/in-re-caden-c-the-supreme-court-recognizes-no-parent-is-perfec/

In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

Caden C. was born in 2009 and lived with his mother until September 2013, when the Marin County Health and Human Services Department removed Caden from her custody because the two had been living in a car and his mother admitted to drug use and suicidal ideation. Caden was placed with Ms. H, a nonrelative extended family member. The juvenile court ordered Caden to remain in foster care and for mother to address substance abuse and mental health issues as well as attend parenting classes. At a July 2014 hearing, the juvenile court retained jurisdiction but placed Caden with his mother. His mother and Caden then moved to San Francisco.

In June 2016, after mother relapsed, the San Francisco Human Services Agency (SFHSA) removed Caden from his mother’s custody and filed a supplemental dependency petition. SFHSA placed Caden with Ms. H once again. Meanwhile, his mother reentered residential treatment and filed a petition to regain custody. After the juvenile court denied this petition, Caden’s mother abandoned her drug treatment. In May 2017, the juvenile court reduced mother’s visitation with Caden to once per month and set a Welf. & Inst.C. §366.26 hearing.

At the Welf. & Inst.C. §366.26 hearing, SFHSA argued that Caden was likely to be adopted, his mother’s parental rights should be terminated, and the juvenile court should enter a permanent plan of adoption. SFHSA’s expert, Dr. Lieberman, who did not interview or meet Caden, but who had participated in administrative reviews of Caden’s case, testified that Caden “has a very strong emotional bond with his mother” but that Caden needs ongoing support to address the trauma developed during his early years with his mother and that Ms. H. could provide the necessary support and comfort such that terminating his relationship with his mother would not be harmful to Caden. A social worker for SFHSA also testified that mother discussed her drug treatment in front of Caden, and, as a result, the Caden now talked about drugs and alcohol in detail.

Meanwhile, mother argued that terminating her relationship with Caden would be harmful to him. Mother’s expert witness, Dr. Molesworth, testified that Caden has an “intense bond” with his mother and losing contact with her would compound certain traumatic effects and could result in significant acting out during Caden’s adolescence. Dr. Molesworth concluded that although Caden has a positive relationship with Ms. H., terminating his relationship with his mother would be detrimental to Caden. In her testimony, mother expressed her fear that terminating their relationship would cause Caden to feel abandoned. On cross-examination, mother admitted to having an existing meth addiction.

After this four day hearing, the juvenile court found that Caden would likely be adopted but that mother had established the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i), precluding termination of her parental rights. The juvenile court found that mother met each element of the three-pronged parental-benefit exception: (1) mother maintained regular visitation with Caden; (2) Caden benefited from the continuing relationship with his mother; and (3) termination of this relationship would be detrimental to Caden. Thus, the juvenile court declined to terminate mother’s parental rights and ordered Caden to remain in foster care while Ms. H. considered legal guardianship. SFHSA appealed, and the First District reversed, holding that due to mother’s ongoing struggle with substance abuse, no reasonable court could find Caden’s relationship with his mother outweighed the benefits of adoption. The Supreme Court of California granted review and reversed the First District.

Cleaning house. . .
The justices first addressed the issue whether heightened or additional showing is required to establish the parental-benefit exception. They noted that after the legislature amended Welf. & Inst.C. §366.26(c)(1)(B) to require a parent to show a “compelling reason for determining that termination would be detrimental to the child,” some courts have reasoned that the new language requires a parent to show a heightened level of harm or additional compelling reason in order to establish the parental-benefit exception. But after examining the legislative history of the amendment, the justices here determined that this interpretation is incorrect. In fact, the legislature added the “compelling” language to the statute merely to comply with the Adoption and Safe Families Act of 1997 (ASFA). This federal statute required a “compelling reason” in certain situations where a social service agency did not move to terminate parental rights or where a court declined to terminate such rights. The ASFA, however, did not specify what constitutes a “compelling reason,” so the legislature determined that the existing reasons in the statute satisfy the language in question. Thus, the amendment to the language of Welf. & Inst.C. §366.26(c)(1)(B) did not add a heightened or additional compelling element to the parental-benefit exception. In finding that no heightened or additional showing is required to establish the exception, the California Supreme Court disapproved opinions that have held otherwise, including In re Logan B., 3 Cal.App.5th 1000, 207 Cal.Rptr.3d 837; In re Jasmine D., 78 Cal.App.4th 1339, 93 Cal.Rptr.2d 644; and In re Casey D., 70 Cal.App.4th 38, 82 Cal.Rptr.2d 426.

The justices next turned to whether a parent’s ongoing struggles with issues that led to the dependency action can bar that parent’s showing of the parental-benefit exception. The justices held that there is no basis in the statute to find that such consideration may prevent application of the exception and that such a categorical bar “would effectively write the exception out of the statute.” Specifically, the justices noted that when a juvenile court holds a Welf. & Inst.C. §366.26 hearing, it necessarily terminates reunification services for the parent precisely because that parent has not been successful in maintaining the reunification plan. Calling such a categorical bar to the exception a “paradoxical proposition,” the justices held that parents do not need to show they are “actively involved in maintaining their sobriety or complying substantially with their case plan” in order to establish the parental-benefit exception, disapproving cases that hold otherwise, including In re Breanna S., 8 Cal.App.5th 636, 214 Cal.Rptr.3d 98; In re Noah G., 247 Cal.App.4th 1292, 203 Cal.Rptr.3d 91; and In re Marcelo B., 209 Cal.App.4th 635, 146 Cal.Rptr.3d 908.

Finally, the justices resolved the standard of the review for courts considering application of the parental-benefit exception, finding that the first two elements of the exception [whether there has been regular visitation and whether a beneficial relationship exists] shall be reviewed under the substantial evidence standard while the last element [whether termination of parental rights would be detrimental to the child] is more appropriately reviewed under a hybrid approach. The justices noted that factual determinations related to the third element shall be reviewed under the substantial evidence standard, but the ultimate decision whether termination of parental rights would be detrimental to the child requires a balancing of these factual determinations and must be reviewed for an abuse of discretion. Accordingly, the justices reversed the judgment of the First District. cited https://www.cflr.com/com/2021_07.php

IN RE CADEN C. No. S255839.

All too often, children experience harm—and shoulder long-term consequences—because their physical and emotional needs are neglected by their parents. In California, we rely on social services and statutory procedures to strike a delicate balance between protecting children from abuse or neglect and ensuring the continuity of children’s emotionally important relationships, especially with their parents. The resulting balance sometimes gives a struggling parent enough time and support to overcome deficiencies and regain custody. When such success is not achieved, the dependency statutes require the court to hold a hearing under Welfare and Institutions Code section 366.26.¹ At that hearing, the court determines whether to terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan.

When making that fraught determination, a court must sift through often complicated facts to weigh competing benefits and dangers for the child. It must consider practical realities over which it has limited control and envision a child’s future under contingent conditions. And it must navigate situations that can change as quickly as the children before the court do.

To ease the court’s difficult task in making this important decision, the statute provides a carefully calibrated process. Even if a court finds by clear and convincing evidence that the child is likely to be adopted, the parent may avoid termination of parental rights by establishing at least one of a series of enumerated exceptions. If the parent establishes that an exception applies, the statute sets out additional steps for selecting a permanent plan for the child that preserves parental rights. Going step by step through the prescribed process, the court can somewhat more easily accomplish the statutory goals of protecting the parent and child from an overhasty termination of their relationship while ensuring that the child is expeditiously placed in a safe and stable home.

In this case, the trial court found that the parent had established the first of the listed exceptions, the parental-benefit exception.² This exception applies where the parent has maintained regular visitation and contact with the child, the child would benefit from continuing the relationship, and termination of that relationship would impose a detriment on the child. The Court of Appeal reversed. It held that because the parent continued to

struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child’s relationship with his parent outweighed the benefits of adoption.

The Court of Appeal did not explain how the parent’s struggles related to the specific elements of the statutory exception: the importance of the child’s relationship with the parent or the detriment of losing that relationship. Instead, the appellate court treated the lack of progress in addressing substance abuse and mental health issues as a categorical bar to establishing the exception. That conclusion was mistaken, so we now reverse.

I.

Caden C. was born in 2009 and lived with his mother (Mother) until he was four years old. In September 2013, the County of Marin Department of Health and Human Services removed Caden from Mother’s custody because Caden and his mother had been living in a car and Mother admitted to recent drug use and suicidal ideation. The court subsequently took and then decided to retain jurisdiction of Caden. It ordered that he remain in foster care and that Mother address her substance abuse and mental health issues and attend parenting classes. Caden was placed in foster care with a nonrelative extended family member, Ms. H. At a review hearing in July 2014, the court adopted the Department’s recommendation to retain jurisdiction but place Caden with Mother; Mother and Caden subsequently moved to San Francisco.

By June 2016, Mother had relapsed. The San Francisco Human Services Agency (the Agency) then filed a supplemental dependency petition and removed Caden from her custody. (See § 387.) The petition alleged that Mother had created an unhealthy relationship with Caden, exposing him to “conversations that cause fear and create behaviors that jeopardize his safety, emotional well-being, and education.” The Agency placed Caden back with Ms. H., but over the next year he moved through three other foster placements before being returned to Ms. H. The foster parents said they were exhausted by the multitude of services for Caden and expressed concern that visitation with Mother made it difficult for him to settle into their homes. During the same period of time, Mother reentered residential treatment and filed a modification petition to regain custody; the court denied the petition, and Mother disengaged from drug treatment. In May 2017, the court reduced Mother’s visits to once per month, limited her educational rights, and set a hearing pursuant to section 366.26. Mother appealed, filed additional modification petitions and appealed their denials, and sought extraordinary relief.

The juvenile court eventually held a section 366.26 hearing from January to February 2018. Over four days the court heard testimony from numerous witnesses for both Mother and the Agency. It also received reports from the Agency; a bonding study from Mother’s expert, Dr. Molesworth; a clinical consultation report from the Agency’s expert, Dr. Lieberman; and a letter from Caden. Caden indicated that he did not want to come to the hearing. In light of his wishes and to avoid further traumatizing him, the court relied on his letter and statements in the course of the bonding study to understand his feelings. (See § 366.26, subd. (h)(1).)

The Agency argued that Caden was likely to be adopted, that Mother’s parental rights should be terminated, and the court should order a permanent plan of adoption. The social worker indicated Mother sometimes discussed the case and her drug treatment in front of Caden, and described reports from caregivers and service providers that Caden talked about alcohol and drug use in detail. She testified that Caden was doing well in his current foster placement with Ms. H., had not been harmed by having fewer visits with Mother, and would be able to form a bond with Ms. H. that would mitigate the loss of his relationship with Mother. And the social worker testified that Caden reacted positively to living with Ms. H. but grew distressed at the prospect of not living with his mother. Dr. Lieberman participated in administrative reviews of Caden’s case starting in 2016. Dr. Lieberman testified for the Agency as an expert in parent-child bonding and attachment, with a specific focus in childhood trauma and its impact on children. She agreed that Caden “has a very strong emotional bond with his mother” but emphasized that “the narrowness of the bond poses a risk to [Caden’s] ability to devote his attention, energy, investment to developmentally appropriate tasks now of learning [and] socialization.” Dr. Lieberman also explained her opinion that Caden would need ongoing support to address the trauma from his early years as well as from separating from his mother, but that Ms. H. could provide him the necessary comfort and security such that termination of his relationship with Mother would not be harmful for him.

What Mother argued is that the court should not terminate her parental rights, because terminating her relationship with Caden would harm him. Numerous witnesses described how they’d observed the relationship. Mother herself testified that “I don’t want my son to ever, ever blame himself and think that he did something wrong or feel abandoned because I grew up, I grew up abandoned and feeling those things and I saw to it that my child has known he was loved and that he was a good kid and he had a heart of gold and that his heart resembled god. Like why would you want to take that from him? Because that’s exactly what it would do if you were to, if you were to take me out of his life.” On cross-examination of Mother, the Agency elicited testimony about Mother’s ongoing methamphetamine addiction. Dr. Molesworth testified for Mother as an expert in child psychology, bonding studies,

and the parent-child attachment. Based on his review of visit reports and visits he observed, Dr. Molesworth characterized Mother’s interactions with Caden as generally positive. He explained that Caden had an intense bond with Mother of the kind that might tend to impede Caden in forming relationships with others but did not seem to have done so in his case. Dr. Molesworth suggested that, given the intense bond, losing contact with Mother would compound Caden’s other traumas leading to significant emotional fluctuation, confusion, and acting out in the near term and in adolescence. On cross-examination, Dr. Molesworth opined that despite the descriptions of Caden’s relationship with Ms. H., terminating contact with Mother would have detrimental effects of the kind he had described.

The court found that Caden was likely to be adopted but that Mother had established the parental-benefit exception, precluding termination of parental rights. The court explained Mother “has been a constant and that is the relationship that the Court does need to focus on.” She “has maintained consistent and regular visitation and contact”; she “does stand in a parental role to her son”; and “the visits themselves have continued the significant emotional attachment that Caden and his Mother did create prior to his removals.” Mother “substantially complied with her case plan and although unsuccessful at times … has continued her efforts to maintain her sobriety and address her mental health issues.” As the court summed up its reasoning: “Caden loves his Mother. And he does derive benefits from his visits with her. The record does show that while he has a strong developing relationship with Ms. H[.] that relationship in and of itself does not negate the harm that Caden would experience from the loss of his most significant emotional relationship.” The court noted that “Dr. Lieberman did not interview or meet Caden” and emphasized that its review of both expert reports confirmed that “[Mother] and Caden have a consistent and positive relationship.” On that basis, the court found that “severing Caden’s relationship with his Mother would deprive Caden of a positive emotional attachment and greatly harm Caden.” It therefore declined to terminate parental rights and ordered the Agency to determine if Ms. H. would agree to serve as a legal guardian.

In an addendum report, the Agency explained that Ms. H. did not feel comfortable with legal guardianship. She had concerns about Mother’s demands for visitation and use of court process to disturb the placement. She expressed fear for her own safety and that of her family based on Mother’s erratic behavior over the course of July 2014 to August 2016. Ms. H. instead expressed a preference to further consider legal guardianship but keep Caden in her care for the time being as a foster placement. The court then ordered that Caden remain in foster care subject to periodic review, and the Agency appealed the decision.

The Court of Appeal reversed the trial court—but its rationale encompassed a conclusion we now find to be mistaken. (See In re Caden C. (2019) 34 Cal.App.5th 87, 116 [245 Cal.Rptr.3d 797] (Caden C.).) The Court of Appeal took particular issue with the trial court’s suggestion that Mother had “`substantially complied with her case plan’ and `continues her efforts to maintain her sobriety and address her mental health issues.'” (Id. at p. 110.) In so doing, it followed a recent trend in the Courts of Appeal to place great emphasis on a parent’s failure to make progress in addressing the problems that led to the child’s dependency. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 648 [214 Cal.Rptr.3d 98]; In re Noah G. (2016) 247 Cal.App.4th 1292, 1302, 1304 [203 Cal.Rptr.3d 91]; In re Marcelo B. (2012) 209 Cal.App.4th 635, 643-645 [146 Cal.Rptr.3d 908].) The Court of Appeal also reasoned that the trial court “gave short shrift to uncontroverted evidence that long-term foster care posed substantial risk of further destabilizing a vulnerable child, fostered unhealthy and sometimes `toxic’ interactions between mother and child, and robbed Caden of a stable and permanent home with an exceptional caregiver.” (Caden C., supra, 34 Cal.App.5th at p. 110.)

We granted review to clarify the applicability of the parental-benefit exception—in particular, whether a parent must show progress in addressing issues such as drug abuse that led to the child’s dependency in order to establish the exception—and to resolve the standard of review for decisions regarding the parental-benefit exception.³

II.

Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent’s care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception. What it requires a parent to establish, by a preponderance of the evidence, is that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); Evid. Code,

§ 115.) The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent’s custody but where severing the child’s relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion.

A.

If the court cannot safely return a dependent child to a parent’s custody within statutory time limits, the court must set a hearing under section 366.26. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249 [19 Cal.Rptr.2d 698, 851 P.2d 1307] (Cynthia D.).)

At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child. (See In re Amber M. (2002) 103 Cal.App.4th 681, 690 [127 Cal.Rptr.2d 19] (Amber M.); cf. § 388, subd. (a)(1) [parent must show changed circumstances to get back custody of child during dependency proceedings].) In fact, it is not permissible to order reunification at the section 366.26 hearing. (See In re Zeth S. (2003) 31 Cal.4th 396, 411 [2 Cal.Rptr.3d 683, 73 P.3d 541] (Zeth S.); In re Marilyn H. (1993) 5 Cal.4th 295, 304-306 [19 Cal.Rptr.2d 544, 851 P.2d 826] (Marilyn H.).) Indeed, when the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved. (See, e.g., In re Edward R. (1993) 12 Cal.App.4th 116, 126 [15 Cal.Rptr.2d 308].)

Instead, the goal at the section 366.26 hearing is “specifically … to select and implement a permanent plan for the child.” (Marilyn H., supra, 5 Cal.4th at p. 304; see also Cynthia D., supra, 5 Cal.4th at p. 250 [“`This hearing determines only the type of permanent home'”].) To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them. (See § 366.26, subd. (b) [“In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c)”].) According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. (See Cynthia D., supra, 5 Cal.4th at pp. 249-250.) But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the

court should decline to terminate parental rights and select another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A).) As we have previously explained, “[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53 [1 Cal.Rptr.3d 432, 71 P.3d 787], italics omitted (Celine R.).)

In interpreting the exceptions, we are guided by the relevant statutory provisions, read in context. (See, e.g., Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 128 [218 Cal.Rptr.3d 654, 395 P.3d 689].) In particular, we take account of the connection the statute establishes—when an exception applies—between the “best interest” of the child and the continuation of parental rights. Parallel to the provision detailing the exceptions (§ 366.26, subd. (c)(1)(B)(i)-(vi)), the statute provides that “[i]f the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of [those exceptions] … applies, the court shall” follow a process to select among permanent plans other than adoption. (§ 366.26, subd. (c)(4)(A), italics added.) In other words, when a parent establishes that one of the exceptions applies, adoption or termination is not “in the best interest of the child.” (Ibid.; see Stats. 1997, ch. 510, § 1, p. 3155; Sen. Judiciary Com., Analysis of Assem. Bill No. 329 (1997-1998 Reg. Sess.) as amended June 23, 1997, pars. 14-15 [“This section provides that termination would be detrimental to the child and should not occur when one of the following circumstances exists. [¶] … [¶] [T]he proposed language would provide that termination would not be in the interests of the child when one of the four exceptions applies …”].)

The exception at issue in this case is limited in scope. It applies where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The 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).) From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child. In understanding these elements, we are guided by what has become the seminal decision interpreting the exception, the Fourth District Court of Appeal’s opinion in In re Autumn H. (1994) 27 Cal.App.4th 567 [32 Cal.Rptr.2d 535] (Autumn H.). The court there articulated the meaning of the exception in an opinion that has guided the thousands of Court of Appeal decisions on the exception since. (See id. at pp. 575-576; see also, e.g., Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) § 2.171[5][b][ii][A]-[B].) What the appellate court emphasized in Autumn H. is a crucial aspect of the trial court’s responsibility

in these cases: in assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. (See Autumn H., supra, at p. 575.) By making this decision, the trial court determines whether terminating parental rights serves the child’s best interests.

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.” (In re I.R. (2014) 226 Cal.App.4th 201, 212 [171 Cal.Rptr.3d 469].) Visits and contact “continue[] or develop[] a significant, positive, emotional attachment from child to parent.” (Autumn H. supra, 27 Cal.App.4th at p. 575.) Courts should consider in that light whether parents “maintained regular visitation and contact with the child” (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact—here as throughout, the focus is on the best interests of the child. (See Cynthia D., supra, 5 Cal.4th at p. 254.)

As to the second element, courts assess whether “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) 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.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) As the trial court and Court of Appeal did here, courts often consider how children feel about, interact with, look to, or talk about their parents. (See, e.g., Caden C., supra, 34 Cal.App.5th at p. 109 [“The record is replete with comments from various care providers attesting to the significance of the bond between mother and son”]; In re Scott B. (2010) 188 Cal.App.4th 452, 466-467, 471 [115 Cal.Rptr.3d 321] (Scott B.); In re Brandon C. (1999) 71 Cal.App.4th 1530, 1536-1537 [84 Cal.Rptr.2d 505] (Brandon C.).) Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do “[p]arent-child relationships” conform to an entirely consistent pattern. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [93 Cal.Rptr.2d 644] (Jasmine D.); see also In re Grace P. (2017) 8 Cal.App.5th 605, 614-615 [213 Cal.Rptr.3d 714] [“parenting styles and relationships differ greatly between families”]; In re S.B. (2008) 164 Cal.App.4th 289, 299 [79 Cal.Rptr.3d 449] [“Autumn H. does not narrowly define or specifically identify the type of relationship necessary to establish the exception”].) Certainly, it is not necessary—even if it were possible—to calibrate a precise “quantitative measurement of the specific amount of `comfort, nourishment or physical care’ [the parent] provided during [his or] her weekly visits.” (Brandon C., supra, at p. 1538.) As in this case, often expert psychologists who have observed the child and parent and

can synthesize others’ observations will be an important source of information about the psychological importance of the relationship for the child.⁴

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. (§ 366.26, subd. (c)(1)(B); see also § 366.26, subd. (c)(1)(D).) 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. (See In re C.B. (2010) 190 Cal.App.4th 102, 128 [117 Cal.Rptr.3d 846]; In re Noreen G. (2010) 181 Cal.App.4th 1359, 1391 [105 Cal.Rptr.3d 521]; see also Troxel v. Granville (2000) 530 U.S. 57, 66-67 [147 L.Ed.2d 49, 120 S.Ct. 2054].) 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. (Cf. Celine R., supra, (2003) 31 Cal.4th at p. 55 [explaining, in discussing the “sibling relationship exception” (§ 366.26, subd. (c)(1)(B)(v)), “the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child”].) As the expert who performed the bonding study in this case suggested, the effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet as the experts in this case discussed, 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.

In each case, then, the court acts in the child’s best interest in a specific way: it decides whether the harm of severing the relationship outweighs “the security and the sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,” even considering the benefits of a new adoptive home, termination would “harm[]” the child, the court should not terminate parental rights. (Ibid.) That subtle, case-specific inquiry is what the statute asks courts to perform: 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?]” (In re S.B., supra, 164 Cal.App.4th at p. 300.) When 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, termination would be “detrimental to the

child due to” the child’s beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i), italics added.) We don’t address here what it means for termination to be detrimental due to any of the other listed exceptions. That inquiry may well differ depending on the particular exception at issue. (See § 366.26, subd. (c)(1)(B)(ii)-(vi).)

When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. (See Zeth S., supra, 31 Cal.4th at p. 411.) Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home. (See Amber M., supra, 103 Cal.App.4th at p. 690 [finding error in not applying exception based on social worker’s testimony that “focus[ed] on [parent’s] inability to provide a home for [the children] and on the suitability of the current placements”].) Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. (See Scott B., supra, 188 Cal.App.4th at pp. 471-472.) And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver. (See Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538.)

What’s more, understanding the harm associated with severing the relationship is a subtle enterprise—sometimes depending on more than just how beneficial the relationship is. In many cases, “the strength and quality of the natural parent/child relationship” will substantially determine how detrimental it would be to lose that relationship, which must be weighed against the benefits of a new adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.) A child would benefit from continuing a strong, positive, and affirming relationship, and it would be destabilizing to lose that relationship. Sometimes, though, a relationship involves tangled benefits and burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.

This is a case in point. The experts agreed that Caden’s relationship with Mother had potentially negative features. Dr. Molesworth indicated that Caden’s bond to Mother might be “narrow”: Caden was preoccupied with Mother in a way that could impede forming other relationships. And Dr. Lieberman highlighted this aspect of the relationship. They disagreed, though, about how negative this feature actually was. Dr. Molesworth thought the “narrow” bond had not in fact impeded Caden from forming other relationships. Dr. Lieberman opined that it had. And most relevantly for whether

termination would be detrimental, the experts disagreed about the effects of severing the relationship given Caden’s preoccupation with Mother. Dr. Molesworth opined that termination could be more detrimental on account of Caden’s preoccupation than if Caden were less preoccupied with Mother. Dr. Lieberman, on the other hand, opined that termination could, in this respect, even be beneficial because it would allow Caden to focus on other relationships or activities. The trial court seems to have credited Dr. Molesworth on the ground that Dr. Lieberman hadn’t interviewed or met with Caden. A different court in a different case could find as the trial court did here that a potentially or actually negative aspect of a relationship might make termination even more detrimental. It could also find that terminating a relationship with negative aspects would have some positive effects that weigh in the balance—and may tip it in favor of severing the parental relationship to make way for adoption.

To gauge and balance these weights can be a daunting prospect for trial courts. But it’s what the statute requires—and the legislative history confirms it. In interpreting the dependency scheme in general and section 366.26 in particular, we have regularly looked to the report of the “Task Force,” which the Legislature created in 1987 to redesign the dependency system and whose recommendations the Legislature adopted. (See Cynthia D., supra, 5 Cal.4th at p. 247; Sen. Select Com. on Children & Youth, SB 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) p. i (hereafter Task Force Report).) The Task Force Report explained why the parental-benefit exception existed and when it should be applied: “Termination would not be permissible, however, in the following situation[]: [¶] a) Termination would be detrimental to the child due to the strength of the parent-child relationship. There is substantial clinical evidence that some children in foster care retain very strong ties to their biological parents. Since termination in such situations is likely to be harmful to the child, courts should retain parental ties if desired by both the parents and the child.” (Task Force Report, supra, at p. 11, underscoring omitted.)

The history of the statute also underscores that these three elements—visitation, a beneficial relationship, and detriment from losing it—are what the parent has to prove. Subsequent to Autumn H., the Legislature amended the statute to require a parent to show a “compelling reason for determining that termination would be detrimental to the child….” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B), italics added; see Stats. 1998, ch. 1056, § 17.1, p. 8359.) Based on this amendment, some courts suggested that parents must prove something more than Autumn H. required, some heightened level of harm or an additional “compelling reason.” (See Caden C., supra, 34 Cal.App.5th at pp. 113-114; In re Logan B. (2016) 3 Cal.App.5th 1000, 1012 [207 Cal.Rptr.3d 837]; Jasmine D., supra, 78 Cal.App.4th at p. 1349; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [82 Cal.Rptr.2d 426].) But closer

examination of the legislative history of this amendment reveals the change does not impose an additional or heightened showing. The Legislature added the “compelling reason” language in section 366.26 and throughout the Welfare and Institutions Code to comply with the new Adoption and Safe Families Act of 1997 (ASFA). (Pub.L. No. 105-89 (Nov. 19, 1997) 111 Stat. 2115; see Stats. 1998, ch. 1056, p. 8392, § 27; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2773 (1997-1998 Reg. Sess.) as amended Aug. 24, 1998, p. 1 [“This bill conforms state law to the recently enacted Public Law 105-89, the Adoptions [sic] and Safe Families Act”].) That federal statute required a “compelling reason” in particular situations when an agency didn’t move to terminate parental rights, or a court declined to terminate parental rights within specified timeframes. (See 42 U.S.C. § 675(5)(C), (E)(ii).)

But ASFA didn’t specify what would count as a “compelling reason.” The Legislature accordingly specified that existing reasons in the statute to delay setting a Welfare and Institutions Code section 366.26 hearing or not to terminate parental rights were in fact compelling reasons as required by ASFA. (See, e.g., Welf. & Inst. Code, §§ 366.21, subd. (g)(1)(C)(i), (5), 366.22, subd. (a)(3), 366.3, subd. (h)(1).) The addition of “compelling” in section 366.26, subdivision (c)(1)(B) is another such example and just clarifies that, for example, the parental-benefit exception is a compelling reason not to terminate parental rights as possibly required by ASFA. In other words, where terminating a child’s substantial, positive attachment to the parent would, on balance, be detrimental to the child, that simply is a compelling reason not to terminate parental rights.⁵

What this means is that the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account 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. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the

best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption. (See § 366.26, subd. (c)(4)(A).) We do not further discuss the steps for selecting such a permanent plan. (See § 366.26, subd. (c)(4)(A)-(B).)

B.

We now turn to whether and how a parent’s continued struggles with the issues that led to dependency relate to application of the parental-benefit exception.

A parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the exception. As the parties before us all agree, making a parent’s continued struggles with the issues leading to dependency, standing alone, a bar to the exception would effectively write the exception out of the statute. In cases like this one, when the court sets a section 366.26 hearing, it terminates reunification services for the parent. (See § 366.21, subd. (h).) Thus, when the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency. (See also § 366.26, subd. (c)(2)(A) [court shall not terminate parental rights unless court has previously found that, to the extent required by statute, “reasonable services” were offered or provided].) The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency. So, we reject the paradoxical proposition, without any basis in the statute or its history, that the exception can only apply when the parent has made sufficient progress in addressing the problems that led to dependency. Parents need not show that they are “actively involved in maintaining their sobriety or complying substantially with their case plan” (Caden C., supra, 34 Cal.App.5th at p. 112) to establish the exception.⁶

But the parties likewise agree on something else: issues such as those that led to dependency often prove relevant to the application of the exception. We agree. A parent’s struggles may mean that interaction between parent and child at least sometimes has a “`negative’ effect” on the child. (Autumn H., supra, 27 Cal.App.4th at p. 576.) For example, there was some evidence in this case that, perhaps as a result of her mental health issues, Mother sought to undermine at least some of Caden’s foster placements, which could certainly have had a negative effect on him. Conversely, a parent who gains

greater understanding of herself and her children’s needs through treatment may be in a better position to ensure that her interactions with the children have a “`positive’ … effect” on them. (Ibid.; see In re E.T., supra, 31 Cal.App.5th at p. 77 [“the insight [Mother] has into her own development and the love and care she has for her children was clear in her testimony. Mother recognized that her behavior was traumatic for the children …”].) In both scenarios, the parent’s struggles speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent. And issues such as those leading to dependency may also be relevant to the detriment from terminating parental rights. There was some evidence in this case that Mother’s continuing substance abuse and mental health issues contributed to Caden forming what might have been a “narrow” bond with her. And there was conflicting testimony about whether the nature of Caden’s bond to Mother, associated with Mother’s substance abuse and mental health issues, would make termination more or less detrimental for Caden.

Nonetheless, the parent’s struggles with issues such as those that led to dependency are relevant only to the extent they inform the specific questions before the court: would the child benefit from continuing the relationship and be harmed, on balance, by losing it? The parent’s continuing difficulty with mental health or substance abuse may not be used as a basis for determining the fate of the parental relationship by assigning blame, making moral judgments about the fitness of the parent, or rewarding or punishing a parent. (See Cynthia D., supra, 5 Cal.4th at p. 254 [“It is not the purpose of the section 366.26 hearing to show parental inadequacy … [or] that the parents are `at fault'”]; see also Marilyn H., supra, 5 Cal.4th at p. 305; Amber M., supra, 103 Cal.App.4th at p. 690; Goldstein et al., Beyond the Best Interests of the Child (1979) p. 79.)

Nor could a parent’s struggles be relevant simply because they might conceivably affect the parent’s ability to regain custody of the child. As we have previously explained, return to the parent’s custody is not an option at the section 366.26 hearing. (See Marilyn H., supra, 5 Cal.4th at pp. 304-305.) Accordingly, whether the parent is or is not “ready for the children’s return to her custody” is not, by itself, relevant to the application of the parental-benefit exception. (Amber M., supra, 103 Cal.App.4th at p. 690.) If termination of parental rights would, when weighed against the offsetting benefits of an adoptive home, be detrimental to the child, the court should not terminate parental rights, even if the parent has not demonstrated a likelihood that he or she will ever be able to regain custody.⁷ (See Scott B., supra, 188 Cal.App.4th at pp. 471-472.)

Mother argues that a parent’s struggles should only be relevant to whether the child would benefit from continuing the relationship. They should not be considered “a second time” in deciding whether termination would be detrimental. A parent’s struggles may be most directly relevant—as Mother suggests—to the “`positive’ or `negative’ effect of interaction between parent and child” (Autumn H., supra, 27 Cal.App.4th at p. 576) and then somewhat more indirectly to the harm of removing such interactions from the child’s life. (See also Zeth S., supra, 31 Cal.4th at p. 412, fn. 9.) But how and how much the loss of a relationship with a parent may be harmful, how and how much that harm might be offset by a new family are complex questions not always answered just by determining how beneficial the child’s relationship with the parent is. Though there is no reason for a court to consider “a second time” the same struggles in the same way, a parent’s struggles with substance abuse, mental health issues, or other problems could be directly relevant to a juvenile court’s analysis in deciding whether termination would be detrimental.

C.

When courts make decisions about whether to apply the beneficial relationship exception, their decisions are subject to review. What standard applies is another question we granted review to resolve.

Courts of Appeal have come to use three different standards. Many courts review all the trial court’s findings for substantial evidence. (See, e.g., Autumn H., supra, 27 Cal.App.4th at p. 575.) Other courts have suggested that the appropriate standard is abuse of discretion because the “juvenile court is determining which kind of custody is appropriate for the child.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351 [analogizing § 366.26 hearing to custody determinations at other stages of dependency proceedings].) And yet others, including the Court of Appeal in this case, have adopted a “hybrid” standard. They review whether there has been regular visitation and whether there is a beneficial relationship for substantial evidence but whether termination would be detrimental for abuse of discretion. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [117 Cal.Rptr.3d 568].)

We agree with the general consensus: a substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child “consistently,” taking into account “the extent permitted by the court’s orders” (Brandon C., supra,

71 Cal.App.4th at p. 1537) is essentially a factual determination. It’s likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it.

The third element—whether termination of parental rights would be detrimental to the child—is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child’s relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child’s specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 [24 Cal.Rptr.2d 654] (Robert L.) [“evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling”].)

Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that’s inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child’s life would be like in an adoptive home without the parent in his life. (Cf. In re Stephanie M. (1994) 7 Cal.4th 295, 317-318 [27 Cal.Rptr.2d 595, 867 P.2d 706] (Stephanie M.).) The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home. And so, the ultimate decision—whether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.

In reviewing factual determinations for substantial evidence, a reviewing court should “not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [33 Cal.Rptr.3d 337].) The determinations should “be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (Ibid.; see also 9 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 365.) Uncontradicted testimony rejected by the trial court “`cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.'” (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 [57 Cal.Rptr.3d 259].)

Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when “`”the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”‘” (Stephanie M., supra, 7 Cal.4th at p. 318.) But “`”[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”‘” (Id. at p. 319; see also Robert L., supra, 21 Cal.App.4th at p. 1067 [“The reviewing court should interfere only “`if … under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did”‘”].)

While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced. Review for substantial evidence applies to factual determinations; abuse of discretion applies when a lower court must delicately balance factual determinations to assess an uncertain future situation. But where, as with the parental-benefit exception, “the appellate court will be evaluating the factual basis for an exercise of discretion, there likely will be no practical difference in application of the two standards.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 8:88, p. 8-41; see also Jasmine D., supra, 78 Cal.App.4th at p. 1351 [“The practical differences between the two standards of review are not significant”].) At its core, the hybrid standard we now endorse simply embodies the principle that “[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child’s best interests for the trial court’s determination in that regard, reached pursuant to the statutory scheme’s comprehensive and controlling provisions.” (Zeth S., supra, 31 Cal.4th at p. 410.)

III.

Having explained the scope of the parental-benefit exception and the standard for reviewing an application of it, we turn to the Court of Appeal’s decision in this case. The Court of Appeal found substantial evidence supported the trial court’s determinations that Mother had maintained regular visitation with Caden. (Caden C., supra, 34 Cal.App.5th at pp. 108-109.) It also found that substantial evidence supported the trial court’s determination that Caden and Mother had a beneficial relationship. (Id. at p. 109.) It held, though, that the trial court abused its discretion in finding that the relationship was a compelling reason not to terminate parental rights. (Id. at pp. 110-115.)

The Court of Appeal rested its decision to reverse on two considerations. First, it concluded that mother had not “`maintain[ed] her sobriety and

address[ed] her mental health issues.'” (Caden C., supra, 34 Cal.App.5th at p. 110.) It therefore held that “[n]o reasonable court would apply the beneficial relationship exception on this record of mother’s disengagement from treatment and case plan, inability or unwillingness to remain sober, and deficient insight regarding her parenting.” (Id. at p. 112.) Second, it reasoned that “although Caden enjoyed visiting with mother, their interactions were often detrimental to his well-being” (id. at p. 114) by contrast with his relationship with Ms. H., “the only caregiver in Caden’s life who had enabled him `to feel that he is in the care of a consistent and predictable adult who keeps him safe and reliably looks out for his physical and emotional needs'” (id. at p. 115). It therefore concluded that “when the strength and quality of mother’s relationship with Caden in a tenuous placement is properly balanced against the security and sense of belonging adoption by Ms. H. would confer, no reasonable court could have concluded that a compelling justification had been made for forgoing adoption.” (Ibid., italics added.)

The first consideration supporting reversal was improper. Even where a parent continues to struggle with addiction—and even if she believes that her addiction doesn’t make her an unfit parent—a reasonable court could conclude that termination of parental rights would, on balance, be detrimental to the child. (See Caden C., supra, 34 Cal.App.5th at p. 111.) Mother was not required, in order to establish that the parental-benefit exception applied, to put evidence in at the section 366.26 hearing that she had recently attempted to maintain her sobriety or seek treatment for her addiction or mental health issues. (See Caden C., at p. 111.) The Court of Appeal did not conclude, applying the appropriate standard of review, that the evidence showed Mother’s substance abuse or mental health issues affected whether her relationship with Caden was beneficial or whether its loss would, on balance, be detrimental to him. The Court of Appeal did not, for example, connect Mother’s substance abuse or mental health to its emphasis on contested evidence about whether Caden’s visits with Mother “were often detrimental to his well-being.” (Id. at p. 114.) It also did not explain how its reliance on that contested evidence fit with its determination that “it cannot be seriously disputed that Caden had a beneficial relationship with mother—that is, a significant relationship the termination of which would cause him detriment.” (Id. at p. 109.) And so, the Court of Appeal’s holding that no reasonable court could apply the parental-benefit exception given Mother’s substance abuse and mental health issues was error.

Because we find that the Court of Appeal’s first consideration was erroneous, we reverse. Accordingly, we do not address the court’s second consideration in detail. In particular, we don’t decide whether the Court of Appeal failed to view “all the evidence, … most favorably in support of the trial

court’s actions” (Robert L., supra, 21 Cal.App.4th at p. 1067) or improperly “substitute[d] its own judgment” (Zeth S., supra, 31 Cal.4th at p. 410) for the trial court’s.

The juvenile court declined to terminate parental rights nearly three years ago. We now hold that the Court of Appeal, in reversing that decision, erred. And so, we reverse the Court of Appeal. More recently, the Agency filed a new petition to terminate parental rights, and the trial court held a new hearing and terminated Mother’s parental rights. That subsequent decision renders moot the earlier decision not to terminate parental rights. On remand, the Court of Appeal should therefore dismiss this appeal as moot. (See People v. DeLeon (2017) 3 Cal.5th 640, 660 [220 Cal.Rptr.3d 784, 399 P.3d 13].)

IV.

The dependency statutes were enacted to prevent harm to children. They prevent harm at the outset of the dependency process by removing children from situations where they are likely to suffer abuse or neglect. But they also prevent harm in the process of selecting permanent placement through the parental-benefit exception, by allowing certain children to preserve emotionally important parental relationships. This exception allows a child a legal basis for maintaining a relationship with the child’s parent if severing that relationship would, on balance, harm the child. The exception preserves the child’s right to the relationship even when the child cannot safely live with that parent. What it does not allow is a judgment about the parent’s problems to deprive a child of the chance to continue a substantial, positive relationship with the parent. Accordingly, we reverse the judgment of the Court of Appeal and remand with directions to dismiss the appeal as moot.

Cantil-Sakauye, C. J., Corrigan, J., Liu, J., Kruger, J., Groban, J., and Jenkins, J., concurred.

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Opinion

CLICK ANY PHOTO TO TAKE YOU TO THE LOVE OF FATHER & SON PAGE a TRUE STORY OF DEPRIVATOIN OF RELATIONSHIP PAIN

 Providers v. Rank, 270 Cal.Rptr. 796, 51 Cal.3d 1, 793 P.2d 2 (Cal. 1990):
” ‘Any aggrieved party’ may appeal from an adverse judgment…. [O]ne who is legally ‘aggrieved’ by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section 663.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736, 97 Cal.Rptr. 385, 488 P.2d 953.) Appellants having filed such a motion, the only question is whether they qualify as persons aggrieved by the judgment.

if you are looking for a Criminal Vacate Motion in California see.. Motion to Vacate a Criminal Conviction 1473.7 PC

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Scotus Ruling for Parents

Quick Facts on Parental Involvement

• Children who have parental support are likely to have better health as adults.
• Students with involved parents tend to earn higher grades, have better social skills, and are more likely to graduate and go on to post-secondary education.
• Children are more likely to be socially competent and have better communication skills when they have parents who are sensitive to their needs and emotions.
• Teens who are monitored by their parents are one-quarter as likely as teens with “hands-off” parents to smoke, drink, and use drugs.

Parents play an irreplaceable role in the lives of their children. This vital relationship positively impacts a child’s physical, mental, and emotional well-being. The right of parents to maintain a strong involvement in their children’s lives has been continually upheld by Supreme Court doctrine. It is deeply valued by millions of American families. cited

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.1 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.2 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

read another amendment section under the 14th amendment below

Amdt 9.32 Particular Rights – Fourteenth Amendment –  Interference with Parent / Child Relationship

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment  this CODE PROTECTS all US CITIZENS

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment  this CODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECTS all US CITIZENS

We also have the  California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of Rights SCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Children’s Bill of Rights During Splitting Up, Separation or Divorce

The biggest fear parents have during divorce is the impact it will have on their children.  Putting the needs and best interests of your children first during a divorce can look different for every family.

Even during a time of great stress and turmoil, parents have a responsibility and opportunity to truly support their children.  One way is to remember your child’s rights.

1. Your child has a right to love both of their parents.

2. Your child has a right to not to have to choose between their parents.

3. Your child has a right to not to have to listen to either parent talk badly about the other parent or his or her family.

4. Your child has a right to express feelings and have those feelings acknowledged by their parents.

5. Your child has a right to have contact with both parents at appropriate times, regardless of the parenting schedule.

6. Your child has the right to have their things at both parents’ homes and have it acknowledged that they child have two homes, regardless of how much time they spend at each.

We know you want to be the best parent you can be during your divorce.  Keeping the above rights of your child in mind during the divorce process can help your actions be aligned with your intentions when the going gets tough.

If your child is of appropriate age (generally ages 8 and up), we encourage you to discuss these rights with your child to create an environment in your home that fosters open and honest communication and to support your child through this transition. cited https://koenigdunne.com/childrens-bill-of-rights-during-divorce/

“…It is a Fundamental Constitutional Right.”

In 2000, the Supreme Court cited a long train of previous cases which showed that the right of parents to direct the education and upbringing of their children is a fundamental right. The following passage, taken from Troxel v. Granville, highlights the rich history of this fundamental right:

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

Learn More: Family Law Appeal

Parents Have an Irreplaceable Role

The role of parents in a child’s life is an irreplaceable one. “Even when young children spend most of their waking hours in child care, parents remain the most influential adults in their lives,” writes Dr. Jack Shonkoff, a board-certified pediatrician who sits on the faculty of the Harvard Graduate School of Education.[2]

“The hallmark of [the parental] relationship is the readily observable fact that this special adult is not interchangeable with others,” he continues. “A child may not care who cuts his hair or takes his money at the toy store, but he cares a great deal about who is holding her when she is unsure, comforts her when she is hurt, and shares special moments in her life.”[3]

The relationship that parents share with their children is one that impacts a child throughout his or her lifetime. Studies show that the benefits of parental involvement are manifold, affecting numerous areas of a child’s life, including health and development, academic progress, and life choices.

The Supreme Court has maintained that parents possess a fundamental constitutional right to raise their children as they see fit. “The child is not the mere creature of the State,” the Supreme Court concluded in a 1925 ruling. “Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

“The child is not the mere creature of the State. Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

– Pierce v. Society of Sisters, 268 U.S. 510
(1925 Supreme Court case)

The role of parents in the lives of their children has, historically, been one of unquestioned value, celebrated in cultures around the world. And the rights that come along with that responsibility—to direct the upbringing and education of one’s own children—have been consistently honored and upheld.

There is only one way to effectively secure the foundation of parenthood for this generation and the next: a constitutional amendment that explicitly protects the child-parent relationship from unreasonable government intrusion. A constitutional amendment will ensure that the rights of parents to raise their children are honored by federal court judges.

cited 

In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.”Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.

Protecting Parental Rights at the State Level

Parents have rights to be parents’

[1] While in Jackson v. Tangreen (2000), the Court of Appeals of Arizona found that “Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny,” the newer Ariz. Rev. Stat. § 1-601 explicitly requires this strict scrutiny review.

[3] Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.

[4] In Wilson v. Div. of Family Servs., the Supreme Court of Delaware recognized “the interest of natural parents in the care and custody of their children” as a “fundamental right,” but did not specify strict scrutiny.

[5] O.C.G.A. § 19-7-1 (b. [***8] 1) establishes a rebuttable presumption that parental custody is always in the child’s best interest.

[6] While in Skov v. Wicker v. Boydston, 272 Kan 240 (2001), the Kansas Supreme Court, citing the Troxel ruling, only demanded the ambiguous Troxel test, it is expected that the religious freedom statute of 2013 that calls for fundamental parental rights and outlines strict scrutiny protection will lead to a different outcome in Kansas courts the next time the issue comes up.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[9] While North Carolina and Rhode Island courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right, unfortunately, no specific standard of review (such as “strict scrutiny”) is set in these cases in either state.

[10] Tennessee does have numerous laws on the books that provide support to parental rights.

[11] Although Texas does not have a specific parental rights statute, parental rights are respected and protected by statute in several key parts of Texas law. A parental rights statute could improve on this–but not by much.

[12] Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.

[13] Washington courts affirm parental rights as fundamental, although there is no mention of strict scrutiny.

[14] West Virginia law acknowledges parental rights as fundamental in W. Va. Code § 49-1-1(a) and W. Va. Code § 49-6D-2(a).

[15] In 2003, the New Jersey Supreme Court heard just such a challenge to the grandparent visitation statute. Our Supreme Court, in essence, found the Grandparent Visitation Statute as drafted to be unconstitutional and therefore added a requirement: a threshold showing of harm that can be satisfied only by “gross misconduct, unfitness, abandonment, or exceptional circumstances.” [Moriarty v. Bradt, 177 N.J. 84, 112-18 (2003).] Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, “that will be the end of the inquiry.” If the parent and grandparents are unable to agree on a visitation schedule, the Court will implement a schedule “that it finds is in the child’s best interest, based on the application of the statutory factors.” [Moriarty v. Bradt, 177 N.J. 84, 117 (2003).]

Cited https://parentalrights.org/states/

 3 Constitutional Rights of Parents Develop 1920’s : parents have a fundamental liberty interest in the “care, custody and control” of their children (though not to due process before removal).  Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language in school)  Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools) “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”  Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice religion)

4 4 In Re Gault, 387 U.S. 1 (1967) “Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas   Struck down parens patriae authority of the court to remove children from home without a hearing (to deal with criminal conduct).   Did not disturb the parens patriae doctrine in dependency cases.   Hailed by some as advancement in children’s rights.   Criticized by others as the criminalization of the juvenile court and the beginning of the end of the court’s authority to treat children like children rather than adults.   “Child’s best interest” today can retain some of the old paternalism, if we are not careful.

5 5 Constitutional Rights of Parents 1972: Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause) – Stanley v. Illinois, 405 U.S. 645 1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14 th amendment. – Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing). * Extended to adjudications by NM statute 32A-4-20(H). * 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.

6 6 Despite the Supreme Court’s repeated recognition of these significant fundamental parental liberty interests, these interests have never been seen to be without limits. -Lehr v. Robertson, 463 US 248 (1983). -Gerald D., 491 U.S. 110 (1989). 1980’s

7 7 The Right to Parent Requires a Familial Relationship – Biology is not enough Lehr v. Robertson: The mere existence of a biological link does not merit… constitutional protection. To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”

cited https://slideplayer.com/slide/5813806/

UNFAIR TO ONE SIDE

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights;
it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and
attach a fee to it.”
Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can
war against the Constitution without violating his undertaking to support it.” The constitutional theory
is that we the people are the sovereigns, the state and federal officials only our agents.”

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.”Bransom v. Standard Hardware, Inc., 874 S.W.2d 919,1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.  “Fraud destroys the validity of everything into which
it enters,” Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210
“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:

“No man in this country is so high that he is above the law. No officer of the law may set that law at  defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991). “Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all
administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

THEREFOR GIVE THE RIGHTS TO PARENT TO GOOD PARENTS EQUALLY

(In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).) In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. – Pierce v. Society of Sisters, 268 U.S. 510 (1925)

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g.,

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted));

Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”);

Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”);

Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”);

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”);

Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

It is the natural duty of the parent to give his children education suitable to their station in life. – Meyer v. State of Nebraska, 262 U.S. 390 (1923)

The values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.

Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. – Wisconsin v. Yoder, 406 U.S. 205 (1972)

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. – Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

The liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” – Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.

We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” – Quilloin v. Walcott, 434 U.S. 246 (1978)

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. – Moore v. East Cleveland, 431 U.S. 494 (1977)

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. – Parham v. J. R., 442 U.S. 584 (1979)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

“The best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. – Reno v. Flores, 507 U.S. 292 (1993)

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights . . . to direct the education and upbringing of one’s children.

The Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests of all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” – Washington v. Glucksburg, 521 U.S. 702 (1997)

Child Dependency Due Process –

Conforming to Proof In re I.S.

Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

Reversed. Mother’s due process was violated when the court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].)

IN RE I.S.,

“Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among  the most  basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard.” ( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

( In re Wilford J. (2005) 131 Cal.App.4th 742, 751, 32 Cal.Rptr.3d 317.) “Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges.” ( In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283.)

A court may amend a dependency petition to conform to the evidence received at the jurisdiction hearing to remedy immaterial variances between the petition and proof. ( § 348 ; Code Civ. Proc., § 470.) However, material amendments that mislead a party to his or her prejudice are not allowed. ( Code Civ. Proc., §§ 469 – 470 ; In re Andrew L. (2011) 192 Cal.App.4th 683, 689, 121 Cal.Rptr.3d 664 ( Andrew L. ).)

The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.” ( In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041–1042, 113 Cal.Rptr.2d 597 ( Jessica C. ).)

https://goodshepherdmedia.net/child-dependency-due-process-conforming-to-proof-in-re-i-s/

CONFRONTATION CLAUSE / DUE PROCESS
https://goodshepherdmedia.net/confrontation-clause/

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). In Ohio v. Roberts, 448 U. S. 56 (1980), the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. .

In , the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” ., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid.

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

substantive issues to the court’s findings, and the court abused  its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

Gravamen of proof  (In re I.S., supra, 67 Cal.App.5th at p. 928) as the proof offered at the jurisdiction hearing.

“‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.'” (In re L.W., supra, 32 Cal.App.5th at p. 848.) “‘But substantial evidence “is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal.”‘” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “‘”Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.'”” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Ma.V., supra, 64 Cal.App.5th *19 at p. 22 [“Substantial evidence indicates more than a smidgeon or trace; it must be meaningful and significant and cannot be merely speculative.”]; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a “juvenile court’s conclusion ‘supported by little more than speculation’ [is] not based on substantial evidence”].) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.)

where, as here, the parent appeals from the order terminating jurisdiction and the custody order, an appeal from jurisdiction findings is not moot where the sustained findings have an adverse effect on a parent’s custody or visitation rights. (See Rashad D., supra, 63 Cal.App.5th at p. 159 [“the parent must appeal not only from the jurisdiction finding . . . order but also from the orders terminating jurisdiction and modifying the parent’s prior custody status”].)

Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. – Troxel v. Granville, 530 U.S. 57, at 65-6 (2000) state court judge does NOT HAVE the discretion to determine the best interests of the child in these situations THIS violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.

The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.

There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their child, my son, see, e. g., Reno v. Flores, 507 U. S. 292, 304.

Family Court Sanctions Ruling Results in Father’s Rights to Visit being Strengthened

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.1 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.2 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

Footnotes

1

452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59. 

2

See, e.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded blood testing in a paternity action the state required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights). 

cited https://www.law.cornell.edu/constitution-conan/amendment-5/parental-and-childrens-rights

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment  this CODE PROTECTS all US CITIZENS

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment  this CODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECTS all US CITIZENS

We also have the PARENTS RIGHTS SCOTUS RULINGS & HELP HERE for 14th Amendment PARENTS RIGHTS Help!

 California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

 IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE JUVENILE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

On October 29, 2019, the agency filed a petition under section 300 subdivisions (b) and (d), alleging that I.S. was sexually abused by D.B., a member of the household and maternal aunt’s boyfriend, and that mother knew of the abuse. I.S. reported that D.B. sexually abused her the year prior, texted her not to tell anyone, and then she told her mother two days later. I.S. showed mother the text messages, and mother eventually held a meeting with the other adult family members who lived in the home, including D.B. and I.S., to discuss what occurred. At the meeting mother decided to have D.B. move out of the home. The other family members stopped speaking to I.S. Mother later let D.B. move back in. I.S. felt anxious and scared with D.B. living in the home again. Mother reported that I.S. was a liar and confirmed D.B. lived in the family home. At the detention hearing, I.S. was detained. The agency filed a report for the adjudication in which I.S. was consistent in her statements of the sexual abuse, and mother was consistent in her denial that anything happened to I.S. At the adjudication, the parties informed the juvenile court that they reached a negotiated agreement, but the court rejected the settlement because it took the responsibility for what happened away from the mother. After hearing testimony, the juvenile court sustained the b-1 allegation, but amended it to conform to proof. In conforming to proof, the juvenile court added six paragraphs including factual and legal theories not in the original petition, including emotional abuse by the mother. The court’s written order dismissed the d-1 count. At the dispositional hearing almost two months later, the court was asked to clarify its ruling on the d-1 allegation, and the court agreed it was not clear and was going to issue a clarifying order. At the disposition hearing two weeks later the juvenile court ordered the d-1 allegation sustained but amended it to conform to proof, adding five paragraphs adding factual and legal theories that were not in the original petition. The juvenile court removed I.S. from her mother’s care. Mother appealed.

Reversed. Mother’s due process was violated when the juvenile court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A juvenile court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].) However, if the amendments to conform to proof change the grounds for establishing jurisdiction, they are not allowable. (See In re G.B. (2018) 28 Cal.App.5th 475 (G.B.)
[holding that it was error to amend the petition to establish jurisdiction under a different legal theory than the original allegations, make a non-offending parent offending in the amended petition, and to base it all on facts not at issue in the original petition].)
This case is more akin to G.B. in that the amended allegations asserted a new legal theory, namely that of emotional abuse, and was therefore not an allowable amendment resulting in the same basic allegations. Further, one of the amendments asserted the legal theory that mother might have known of the abuse if she conducted a reasonable investigation of the text messages, whereas the original petition alleged mother knew of the abuse. With this different legal theory at play, mother possibly would have altered her defense at trial. Thus, the amendments materially varied from the original petition. The principle that a juvenile court’s order asserting jurisdiction can be affirmed if there are multiple grounds for jurisdiction and any one of the statutory bases is supported by substantial evidence is not appropriate in this case because of the irregular way in which the juvenile court sustained the d-1 allegation, even though mother did not challenge that I.S. was sexually abused by a member of the household. First, the juvenile court dismissed the d-1 allegation, then two months later indicated that it was going to sustain it, and then materially amended it. While a juvenile court may sua sponte change any court order under section 385, the procedural requirement to do so is to provide notice and an opportunity to be heard to the parties. Mother had no notice of the amendments and was not able to properly present a defense. Mother’s fundamental due process rights were violated when she did not receive notice or a fair opportunity to be heard. (KH)

cited https://www.clccal.org/blog/dependency-legal-news-vol-17-no-6/

IN RE I.S.

Contra Costa Cnty. Children & Family Servs. Bureau v. R.S. (In re I.S.)

Opinion

 Interference with Parent / Child Relationship

Due Process Violation of Parental Rights

I        Introduction

             Parents and children possess a constitutionally protected liberty interest in companionship and society with each other.  Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc).  This liberty interest is rooted in the Fourteenth Amendment, which states in relevant part that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV, § 1. 

The protected liberty interest is independently held by both parent and child.  City of Fontana, 818 F.2d at 1418.  A parent’s right includes a custodial interest (but only while the child is a minor), and a companionship interest (even after a child reaches the age of majority).  Id. at 1419; see, e.g., Strandberg v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986) (recognizing that parents of deceased 22-year-old son could not allege constitutional right to parent a minor child, but could claim violation of right to companionship and society).  Children, including adult children, may claim a violation of their right to familial association, but that right includes only a companionship interest.  City of Fontana, 818 F.2d at 1419; Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998).  State interference with these liberty interests may give rise to a Fourteenth Amendment due process claim that is cognizable under 42 U.S.C. § 1983.  Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985).  Parents and children raising such claims are alleging a deprivation of their own liberty rights; they are not asserting the rights of the decedent or injured child or parent.  Id. at 653 n.2. 

            The mere existence of a biological link between parent and child is not a sufficient basis to support a Fourteenth Amendment claim for loss of familial relationship rights.  Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018).  In order to bring a Fourteenth Amendment due process claim, the parent and child must have relationships

(click here to see what the state is fucking up with negligence and hate and vindictiveness)

“which reflect some assumption ‘of parental responsibility.’”  Kirkpatrick v. County of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc) (“It is when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child that his interest in personal contact with his child acquires substantial protection under the due process clause.”) (internal quotation marks and brackets omitted).  Parents can bring a Fourteenth Amendment due process claim only if they demonstrate “consistent involvement in a child’s life and participation in child-rearing activities.”  Wheeler, 894 F.3d at 1058.  Children must make the same showing.  See id. (holding relationship between child adopted as infant and biological mother insufficient for child to bring Fourteenth Amendment loss of companionship claim).

            Other familial relationships may not give rise to a protectable liberty interest.  The extent to which grandparents have such an interest has not been decided, although a noncustodial grandparent generally does not have a protectable interest.  See Miller v. California, 355 F.3d 1172, 1176 (9th Cir. 2004).  Siblings cannot bring claims under the Fourteenth Amendment for the deprivation of their liberty interest arising out of their relationship with their sibling.  Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991), as amended on denial of reh’g (June 16, 1992).

II.    Two Types of Claims: Procedural and Substantive

            A claim of interference with the parent/child relationship in violation of the Fourteenth Amendment may be brought as either a procedural due process claim or a substantive due process claim.  See City of Fontana, 818 F.2d at 1419–20.

            A procedural due process claim may arise when the state interferes with the parent-child relationship for the purpose of furthering a legitimate state interest.  See id. at 1419.  Thus, “where the best interests of the child arguably warrants termination of the parent’s custodial rights, the state may legitimately interfere so long as it provides ‘fundamentally fair procedures.’”  Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)).

            A substantive due process claim may arise when the state interferes with the parent-child relationship “for purposes of oppression.”  Id. (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).  For instance, “the state has no legitimate interest in interfering with this liberty interest through the use of excessive force by police officers.”  Id. at 1419–20.  Each type of claim is evaluated under a distinct standard.

A. Standard for Procedural Due Process Violation 

            Procedural due process claims typically arise when a state official removes a child from a parent’s care.  For such claims, “[t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.”  Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (quoting Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001)).  Removing a child from a parent’s custody violates the Fourteenth Amendment unless the removal (1) is authorized by a court order (typically a warrant); or (2) is supported by “reasonable cause to believe that the child is in imminent danger of serious bodily injury,” and the scope of intrusion does not extend beyond that which is reasonably necessary.  Id. (quoting Mabe, 237 F.3d at 1106).  Even if the removal is pursuant to a court order, the right may be violated if the court order was obtained through judicial deception, that is, if a plaintiff alleges “(1) a misrepresentation or omission (2) made deliberately or with a reckless disregard for the truth, that was (3) material to the judicial deception.”  David v. Kaulukukui, 38 F.4th 792 (9th Cir. 2022).  “A misrepresention or omission is material if a court would have declined to issue the order had [the defendant] been truthful.” Id.  The “mere threat of separation” is insufficient to give rise to a Fourteenth Amendment claim “based on a minor being separated from his or her parents.”  Dees v. County of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020).

            Removing children from their parents’ custody without court authorization is permissible when officials have reasonable cause to believe that the children are at imminent risk of serious bodily injury or molestation in the time it would take them to get a warrant.  Rogers, 487 F.3d at 1294–95; see also Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000).  Serious allegations of abuse must be investigated and corroborated before they will give rise to “a reasonable inference of imminent danger sufficient to justify taking children into temporary custody.”  Demaree v. Pederson, 887 F.3d 870, 879 (9th Cir. 2018) (per curiam) (internal quotation marks omitted).  There must be “specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse.”  Wallis, 202 F.3d at 1138; see also Sjurset v. Button, 810 F.3d 609, 622 (9th Cir. 2015) (holding officials’ belief of imminent danger objectively reasonable where mother who had tested positive for drugs and had previously been convicted of child endangerment prevented officers from verifying child’s safety, and officials could not have obtained court order for 36 hours).

            Conversely, removing children from their parents’ custody without a court’s authorization can give rise to a violation of a liberty interest when there is no imminent risk of physical or sexual abuse.  Demaree, 887 F.3d at 879 (holding officials unconstitutionally removed children from parents’ custody because officials’ fear of “sexual exploitation” based on nude photos of children was not objectively reasonable since photos were not distributed, did not depict sexual conduct, and did not reflect risk of physical sexual abuse).  Evidence that children are malnourished, their home is disorderly or unsanitary, or that their parents lack health insurance or fail to provide them daycare does not constitute exigent circumstances.  Rogers,487 F.3d at 1296.

B.           Standard for Substantive Due Process Violation 

            A substantive due process claim of impermissible interference with familial association arises when a state official harms a parent or child in a manner that shocks the conscience.  Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). “[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due process violation.  Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

            A Fourteenth Amendment substantive due process claim is distinct from a claim arising under the Fourth Amendment.  See Lewis, 523 U.S.at 843.  A Fourth Amendment excessive force claim requires the victim to establish that the officer’s conduct was objectively unreasonable.  Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022).  But that Fourth Amendment standard is less demanding than the “shocks the conscience” standard that applies to substantive due process familial association claims under the Fourteenth Amendment brought by the parent or child of the victim.  See id. at 1056-57.  Accordingly, “it may be possible for an officer’s conduct to be objectively unreasonable under the Fourth Amendment yet still not infringe the more demanding standard that governs substantive due process claims under the Fourteenth Amendment.”  Id. at 1057(internal quotation marks and brackets omitted).

            “There are two tests used to decide whether officers’ conduct ‘shocks the conscience.’”  Id. at 1056.  A state official’s conduct may shock the conscience if (1) the official acted with a “purpose to harm” the victim for reasons unrelated to legitimate law enforcement objectives; or (2) the official acted with “deliberate indifference” to the victim.  Porter, 546 F.3d at 1137.  Which test applies turns on the specific circumstances of the underlying events in each case.  If the encounter at issue escalated so quickly that the officer had to make a snap judgment, the plaintiff must show the officer acted with a “purpose to harm.”  See id.  However, if the situation evolved within a time frame that allowed officers to reflect before acting, the plaintiff must show the officer acted with “deliberate indifference.”  See id. 

lets pause to learn more about deliberate indifference click here to educated yourselves

now lets continue shall we……………

1. Purpose to Harm Standard

            The Supreme Court developed the purpose-to-harm standard in recognition that not every harm caused by government officials gives rise to a Fourteenth Amendment claim.  See Lewis, 523 U.S. at 848–49.  For instance, “when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose” so as to shock the conscience.  Id. at 853.  These circumstances may include high speed police chases, see id. at 855, responding to a gunfight in a crowded parking lot, Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 368 (9th Cir. 1998), and other situations requiring split-second decisions, where the officer did not have a “practical” opportunity for “actual deliberation,” Lewis,523 U.S. at 851.

            In Porter v. Osborn, 546 F. 3d 1131 (9th Cir. 2008), the Ninth Circuit held that the “purpose to harm” standard applied to a Fourteenth Amendment familial association claim brought by the surviving parents of a motorist who was shot and killed, “[d]ue to the rapidly escalating nature of the confrontation” with the motorist, such that actual deliberation was not practical.  Id. at 1137.  Similarly, in Ochoa v. City of Mesa, 26 F.4th 1050 (9th Cir. 2022),the Ninth Circuit applied the purpose to harm standard to a familial association claim brought by the surviving relatives of a suspect who was fatally shot after he took a step towards officers while carrying a knife.

            By contrast, when an officer shot twelve rounds at an occupied vehicle even though the car presented no immediate threat, the Ninth Circuit held that the jury could have reasonably concluded that the officer “acted with the purpose to harm unrelated to a legitimate law enforcement objective,” and upheld the jury’s verdict for the suspect’s surviving children.  A.D. v. Cal. Highway Patrol, 712 F.3d 446, 458 (9th Cir. 2013).

            Zion v. County of Orange exemplifies the distinction between legitimate and illegitimate official conduct.  The officer in Zion did not violate the Fourteenth Amendment when he emptied his weapon at a suspect who was fleeing after stabbing an officer because the officer had no time for reflection, and “[w]hether excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect.”  874 F.3d 1072, 1077 (9th Cir. 2017).  However, there was a genuine issue of fact as to whether the officer acted with a purpose to harm when, after the suspect was lying on the ground in a fetal position, the officer walked around in a circle for several seconds, then took a running start and stomped on the suspect’s head three times.  See id. (reversing summary judgment in favor of officer defendant).

2.      Deliberate Indifference Standard   

            The deliberate indifference standard applies in situations where the officers who caused the harm to the parent or child acted (or failed to act) in a situation when “actual deliberation is practical.”  Lewis, 523 U.S. at 851.  When officials have “time to make unhurried judgments,” and “extended opportunities to do better,” but unreasonably allow harm to occur, then their “protracted failure even to care” can shock the conscience, thus giving rise to a substantive due process claim.  Id.  “Actual deliberation” requires a longer period of time than “deliberation” as that term is used in homicide law.  See id. at 851 n.11 (“By ‘actual deliberation,’ we do not mean ‘deliberation’ in the narrow, technical sense in which it has sometimes been used in traditional homicide law.”).  Because it shocks the conscience for officials to cause harm to a parent or child with deliberate indifference, a substantive due process claim of impermissible interference with familial association can arise in these circumstances.  Porter, 546 F.3d at 1137.

            The deliberate indifference standard often applies in cases of state officials’ inaction or failure to protect.  Although the Fourteenth Amendment’s due process clause generally does not create an affirmative right to governmental aid, see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989), a state actor’s failure to protect “may give rise to a § 1983 claim under the state-created danger exception when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger,” Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021) (internal quotation marks omitted).  A state actor’s failure to protect may also create liability under § 1983 if the state “takes a person into its custody and holds him there against his will.”  DeShaney, 489 U.S. at 199–200.  The types of custody giving rise to the duty to protect are “incarceration, institutionalization, or other similar restraint of personal liberty.”  Id. at 200.

            The deliberate indifference standard as it applies in cases alleging a deprivation of a familial relationship is a subjective standard.  For a defendant to act with deliberate indifference, he must “recognize the unreasonable risk and actually intend to expose the [victim] to such risks without regard to the consequences to the [victim].”  Herrera, 18 F.4th at 1158(internal quotation marks and brackets omitted).  “Ultimately, a state actor needs to know that something is going to happen but ignore the risk and expose the [victim] to it.”  Id. at 1158–59 (internal quotation marks and brackets omitted).

            Herrera shows how the subjective standard applies to parents’ claim for deprivation of familial relationship.  In Herrera, parents claimed that a school aide’s failure to protect their autistic child from drowning in a park swimming pool during a school outing was actionable under the state-created danger exception, and gave rise to a § 1983 claim for deprivation of a parent-child relationship in violation of the Fourteenth Amendment.  See id. at 1161.  The Ninth Circuit held that the school aide had not acted with deliberate indifference because he was unaware of any immediate danger to the child (mistakenly thinking the child was in the locker room rather than in the pool), and there was therefore no evidence that the aide subjectively recognized the risk to the child.  See id. at 1162.  Accordingly, no reasonable jury could conclude that the parents’ Fourteenth Amendment rights were violated. See id.; see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (holding that schoolteacher did not violate student’s Fourteenth Amendment rights by failing to protect the student from having sex with another student in restroom, because there was no proof that teacher knew about any immediate risk).

In cases where the victim is a detainee and the plaintiff is the victim or the victim’s estate, the Ninth Circuit has applied an objective standard for the deliberate indifference inquiry. See Castro v. County of Los Angeles, 833 F.3d 1060, 1070-71 (9th Cir. 2016) (en banc).  Under that standard, a pretrial detainee can maintain a Fourteenth Amendment claim by proving the conduct was objectively unreasonable.  See id. at 1071.  The objective standard has been extended to cases where the detainee is in an immigration facility, see Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (per curiam), and where the detainee alleges that state officials failed to provide medical care, see Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122-24 (9th Cir. 2018). See Instructions 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force), 9.30 (Particular Rights—Fourteenth Amendment— Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care), 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect), and 9.32A (Particular Rights—Fourteenth Amendment—Due Process—Civil Commitment).

            In considering whether the objective or subjective standard applied, Herrera discussed the objective standard as applied in Castro and its progeny, but concluded that the subjective standard for deliberate indifference applied because the victim in the case was not a detainee.  See 18 F.4th at 1160 (“Erick was not detained at the time of his death . . . . We therefore apply a purely subjective standard, consistent with our precedent, requiring the plaintiff to show that the state actor recognized an unreasonable risk and actually intended to expose the plaintiff to such risk.”).  Herrera’s analysis suggests that the objective standard applies in a case alleging a deprivation of familial association when the victim is a detainee.  However, the Ninth Circuit has not squarely addressed that question. Revised Sept. 2022 cited https://www.ce9.uscourts.gov/jury-instructions/node/715   and can be downloaded here

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read another amendment section under the 5th amendment below 

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

read MORE here about Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

to fully understand how any of your actions will be used against you as government officials please read more here.  https://goodshepherdmedia.net/9-32-particular-rights-fourteenth-amendment-interference-with-parent-child-relationship/  about your vindictiveness to an oppositional stance to your incompetance has caused you to leave law and become victims of your own vengeance and incompetence and failure to do the right thing, God is KING, now you punitive measures to control someone who clearly and factually can disapprove all your actions and understands more of RIGHT VS WRONG than you all. Children deserve parents who actually have the Childs best interest which in the eyes of the state and common good https://goodshepherdmedia.net/9-32-particular-rights-fourteenth-amendment-interference-with-parent-child-relationship and commonly morally conscious and good people NOTHING HAS CHEANGED AND REMAINS: safety, well-being, sexual safety, health and education!

Leaving my child with a wanted fugitive sex offender and prosecuting me for calling you dumb fucking lazy cops in good faith phone calls, what makes them good faith phone calls you may ask? Well it becomes good faith and constitutionally protected speech when its regarding filing charges or protecting my son or having the Judges orders adhered to, the fact that after you hang up or get frustrated with me i call you names does not constitute any law violations, you have a duty to protect and to serve. (all recorded more recordings to be published for the TORT!) some of your behaviors have become criminal and for government officials and law enforcement to become criminals just to keep a sex offender in the home of a child that a judge order to be safe from and to come after the father who demands his child is safe makes you criminals and you will be held accountable!

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