“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.
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.
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
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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.
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.
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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,
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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.
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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
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,
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§ 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.
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
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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[b][ii][A]-[B].) What the appellate court emphasized in Autumn H. is a crucial aspect of the trial court’s responsibility
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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
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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
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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
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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
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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
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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).)
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
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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.)
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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.
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,
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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].)
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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.)
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
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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
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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].)
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.
1. All statutory references are to the Welfare and Institutions Code unless otherwise noted.
2. We use the phrases “parental-benefit exception,” “beneficial parental relationship exception,” and “beneficial relationship exception” as labels for the exception currently codified at section 366.26, subdivision (c)(1)(B)(i). The labels are merely for ease of reference and do not reflect any substantive determination about the requirements to prove the exception.
3. Around the time we heard oral argument in this matter, the trial court held a new section 366.26 hearing and terminated Mother’s parental rights. Even though that decision renders this case moot, we have discretion to retain the case and decide it as one presenting issues of public importance, capable of repetition, yet tending to evade review. (See, e.g., Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [110 Cal.Rptr.2d 412, 28 P.3d 151]; In re Kieshia E. (1993) 6 Cal.4th 68, 74, fn. 5 [23 Cal.Rptr.2d 775, 859 P.2d 1290].) The parental-benefit exception is of great importance and one of the most litigated issues in dependency proceedings. Moreover, dependency matters should proceed as expeditiously as possible, which may heighten the difficulty of providing review in our court. (See Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1011, fn. 5 [36 Cal.Rptr.2d 40, 884 P.2d 988].) We therefore retain and decide the issues in this case.
4. Both the trial and the appellate courts found the bonding study informative. Trial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony.
5. We now disapprove opinions to the extent they have held to the contrary: In re Caden C., supra, 34 Cal.App.5th at pages 109-115; In re Logan B., supra, 3 Cal.App.5th at pages 1010-1013; In re Jasmine D., supra, 78 Cal.App.4th at page 1349; and In re Casey D., supra, 70 Cal.App.4th at page 51. Many opinions have treated the “compelling reason” language as not adding any further or heightened requirement, and they just assess whether termination would be “detrimental,” i.e., whether the harm of losing the parental relationship would be offset by the security and stability of a new adoptive family. (See, e.g., In re E.T., supra, 31 Cal.App.5th at p. 77.) We understand those opinions to be consistent with our decision today.
6. To the extent these cases held to the contrary, we disapprove of them: In re Caden C., supra, 34 Cal.App.5th at pages 110-112; In re Breanna S., supra, 8 Cal.App.5th at page 648; In re Noah G., supra, 247 Cal.App.4th at page 1304; and In re Marcelo B., supra, 209 Cal.App.4th at pages 643-645.
7. We also now disapprove those opinions that have held issues leading to dependency (1) were relevant in their own right apart from their relevance to the elements of the exception; (2) were relevant because they led to dependency; or (3) were relevant simply because they might keep the parent from regaining custody. (See In re Caden C., supra, 34 Cal.App.5th at pp. 110-112; In re Breanna S., supra, 8 Cal.App.5th at p. 648; In re Noah G., supra, 247 Cal.App.4th at p. 1304; In re Anthony B. (2015) 239 Cal.App.4th 389, 397 [191 Cal.Rptr.3d 101]; In re Marcelo B., supra, 209 Cal.App.4th at pp. 643-644.) cited https://www.leagle.com/decision/incaco20210527064
S.F. Human Servs. Agency v. Christine C. (In re Caden C.)
NOT TO BE PUBLISHED
Order Filed Dater 1/11/22
San Francisco City & County Super. Ct. No. JD15-3034
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
Margulies, Acting P. J.
It is ordered that the opinion filed herein on December 21, 2021, be modified as follows:
1. On page 32, at the end of the first full paragraph, after the sentence ending “importance of Caden’s relationship with his mother,” add as footnote 12, the following footnote, which will require the renumbering of all subsequent
12 In her petition for rehearing in this matter, mother cites another recent case, In re L.A.-O. (Dec. 27, 2021, E077196) __ Cal.App.5th__ , for the proposition that a trial court’s use of the words “parental role” in connection with its evaluation of the beneficial relationship exception to adoption is legal error requiring reversal. Mother misreads L.A.-O. The appellate court observed that the phrase” ‘parental role'” “can be understood in ways that conflict with Caden C. and in ways that do not.” (L.A.-O., at p. *1.) Because the phrase” ‘parental role,’ standing alone,” is ambiguous, the L.A.-O. court opined that it would be “better not to use the words ‘parental role’ at all.” (Id. at p. *7.) We agree with L.A.-O.‘s observation, but the appellate court did not proclaim that mere use of the words “parental role” is an error as a matter of law. The L.A.-O. court remanded the matter because, like the appellate courts in D.M., J.D., and B.D., it could not determine from the trial court’s “terse” ruling whether use of that phrase “conformed with Caden C.” (L.A.-O., at pp. *8, *1.) For the reasons discussed, the juvenile court’s “parental role” comment clearly related to the absence of a positive and nurturing attachment between Caden and mother due to her destabilizing behaviors, and on this record, remand is unnecessary.
There is no change in the judgment.
Appellant’s petition for rehearing is denied. Dated:
This is the sixth time we have issued an opinion in these dependency proceedings involving young Caden C. (See In re Caden C. (2019) 34 Cal.App.5th 87 (Caden C. I), revd. In re Caden C. (2021) 11 Cal.5th 614 (Caden C.); In re Caden C. (Dec. 9, 2020, A160213) (Caden C. III) [nonpub. opn.]; C.C. v. Superior Court (Sept. 10, 2020, A160270) (C.C. II) [nonpub. opn.]; In re Caden C. (May 22, 2020, A158063) (Caden C. II) [nonpub. opn.]; C.C. v. Superior Court (Aug. 28, 2017, A151400) (C.C. I) [nonpub. opn.].)
On our own motion, we take judicial notice of our prior opinions in this matter for relevant background. (Evid. Code, §§ 452, subds. (c) & (d), 459, subd. (a); see People v. Morris (2015) 242 Cal.App.4th 94, 97, fn. 2.)
Our high court has also weighed in, issuing an opinion in May 2021 which analyzes the beneficial relationship exception to adoption in the context of this case. (Caden C., at pp. 629-641.) In the meantime, Caden’s dependency proceeded to a second permanency planning hearing at which the juvenile court found Caden adoptable, declined to apply the beneficial relationship exception to adoption, and terminated the parental rights of Christine C. (mother). On appeal, mother contends that the juvenile court committed reversible legal error in its rejection of the beneficial relationship exception. We disagree and affirm.
A. Summary of Prior Proceedings
A detailed history of these extended juvenile dependency proceedings can be found in our prior opinions in this matter, and we will not repeat it here. To summarize, during mother’s 30-year history with the child welfare system, all six of her children have been removed from her care due to her chronic substance abuse, neglectful conduct, and involvement in domestic violence. (Caden C. I, supra, 34 Cal.App.5th at p. 92.) Caden, mother’s youngest child, was initially removed in September 2013 at the age of four. (Id. at pp. 92-93.) After extended attempts at reunification, a permanency planning hearing was held for Caden in February 2018 pursuant to section 366.26 of the Welfare and Institutions Code. The juvenile court found Caden adoptable but declined to terminate parental rights, citing the beneficial relationship between Caden and mother. Caden was placed in a permanent plan of long-term foster care with his caregiver, Ms. H. (Id. at pp. 91, 102- 103.)
All section references are to the Welfare and Institutions Code unless otherwise specified.
In September 2018, the juvenile court held a six-month post-permanency review for Caden, maintaining him in long term foster care. In advance of the minor’s March 2019 post-permanency review, the Agency recommended that a new section 366.26 hearing be set so that the juvenile court could again consider adoption by his then-caregiver Ms. H. as Caden’s permanent plan. At the continued hearing on April 9, the court set the second permanency planning hearing for July 31, 2019. Later that same day, we issued our opinion in Caden C. I, supra, 34 Cal.App.5th 87, reversing the juvenile court’s reliance on the beneficial relationship exception to adoption in Caden’s first permanency planning hearing.
Mother filed a writ petition challenging this setting order, and we denied that petition on its merits in September 2020. (See C. C. II, supra, A160270.)
On July 24, 2019, the Supreme Court granted review in Caden C. I. At the second permanency planning hearing on July 31, 2019, the juvenile court continued the permanency issue for a progress report in light of the Supreme Court’s grant of review. However, it ordered a reduction in mother’s visitation with Caden from monthly to once every other month due to her continuing destabilizing behaviors. The permanency planning hearing was then continued repeatedly without any finding of good cause or a determination that further delay was in Caden’s best interests. (See Caden C. III, supra, A160213.) The juvenile court and parties apparently believed, incorrectly, that the second permanency planning hearing should not be held until the proceedings in the Supreme Court with respect to the first permanency planning hearing had been resolved. Given the length of time that passed while the second permanency planning hearing was pending, mother argued that a post-permanency review hearing under section 366.3 was required and must be held in its place. The juvenile court disagreed, reasoning that mother could present evidence in support of her interests at the upcoming permanency planning hearing. The court subsequently set a contested hearing over three dates in September and October 2020, granted mother’s request for a bonding study, and denied her request for a stay of the pending permanency planning hearing.
The juvenile court found that contrary to the requirements of her visitation, mother regularly gave excessive and inappropriate gifts to Caden which caused conflict in the foster home. Mother also interfered in Caden’s relationship with his therapist despite clear evidence the minor benefitted from the therapeutic relationship. When given the opportunity to attend one of Caden’s soccer games, mother sent demanding and hostile text messages to Ms. H. so that all contact had to be stopped. Mother then attempted to reach Ms. H. directly by calling on a blocked number. Mother appealed from the court-ordered reduction in visitation, and in May 2020, we affirmed the juvenile court’s order. (See Caden C. II, supra, A158063.)
Mother appealed from the court’s failure to hold a post-permanency review hearing and in December 2020, we affirmed the juvenile court’s order. (See Caden C. III, supra, A160213.) In doing so, we expressed concern over the significant delay in the case and its impact on Caden’s need for permanency and stability. Given that almost three years had elapsed since the first permanency planning hearing, we determined that the scheduled permanency planning hearing should move forward as expeditiously as possible. To address mother’s claims, we concluded that the section 366.3 hearing should trail the permanency planning hearing and any necessary findings be made if the court declined to terminate parental rights.
B. Events Since Our Last Opinion
Ms. H. gave notice in July 2020 that she could no longer provide an adoptive home for Caden, and the Agency began looking for a new placement. After three and a half years with Ms. H., Caden was moved to a new placement on November 10, 2020. Ms. H. requested the move for several reasons: the financial hardship her family was facing due to the pandemic; the stress caused by her separation from her partner; mother’s referral of Ms. H. to the child abuse hotline for emotional abuse after Caden misplaced his iPad; and conflict between Caden and Ms. H.’s younger son, due, in part, to jealousy caused by mother’s excessive gift giving.
The hotline call took place after mother’s virtual visit with Caden in May 2020. Mother reported to the hotline that someone in the home had stolen Caden’s iPad, which was untrue but led to a licensing investigation. As it turned out, Caden’s iPad had slipped in between a desk and a couch. Ms. H. told the social worker that the incident “was the final straw in a long history of the mother constantly interfering with the placement and the rules of her home.” While the decision to move Caden was incredibly difficult for Ms. H., she felt she could not commit to the permanency Caden deserves.Given this development, both minor’s counsel and the Agency requested that the contested hearing be continued so that Caden’s situation could be clarified. The court set pre-trial motions on December 28 and continued the contested permanency planning hearing to three days in January 2021.
Mother filed a section 388 motion in September asserting that a permanency planning hearing was no longer appropriate because of Caden’s pending placement with new caregivers. At a hearing on September 15, 2020, the juvenile court denied mother’s modification request, stating that the issues raised by mother would all be addressed in the upcoming permanency planning hearing.
Caden’s long-term therapist, Ms. Hirschfield, retired in July 2020 and Caden’s new therapist, Ms. Sarria, worked with the minor to process the loss associated with leaving Ms. H.’s home. Ms. Sarria stated that while Caden was initially devastated by the move, he had transitioned smoothly, showed resilience in settling into the new placement, and appeared more relaxed since the move. The caregivers stated Caden was starting to open up and talk to them. They were working with him on vocalizing his needs and were supportive of him maintaining contact with his previous school community and Ms. H. Caden recently told the social worker that he liked the placement so far and felt he had more freedom and more responsibilities.
Caden was reported to be adjusting well to his new placement. He had made friends, enjoyed cooking dinner with his caregivers, was open to trying new things, had bonded with the family dog “Bear,” and liked to ride his bike around his new neighborhood. He was participating in several outdoor camps during the winter break from school and would be visiting Ms. H. and her family. Caden was attending his old school virtually through the end of the school year. He was still working approximately three grade levels behind in most subjects, but his current caregivers were supporting him academically.
In advance of the December 28, 2020 hearing, the Agency filed a status review report on December 18 recommending placement of Caden in foster care with a goal of guardianship. The Agency reported that mother had provided the Agency with letters from her therapist and sign-in sheets for substance abuse groups. According to the therapist,” ‘mother has been engaged in counseling for three years and . . . she has begun making intentional steps to curbing the intensity of her emotional reactions when events trigger anger.'” However, when mother spoke to the social worker about Caden’s placement change in August 2020, she became upset, yelling and swearing. During the same conversation, mother admitted to drinking alcohol the previous week and using methamphetamine within the previous three or four months. The Agency continued to express concern that mother’s inability to follow basic visitation rules would negatively impact Caden’s current placement, as it had previous placements. For example, although the social worker had a clear conversation with mother about approved Christmas gifts prior to the November 2020 visit, mother ignored the conversation and brought extra gifts. The Agency concluded that Caden continued to benefit from reduced contact with mother because he was less dysregulated and disruptive in placement. Nevertheless, the Agency wanted Caden to stabilize in his placement before discussing permanency.
As we detailed in Caden C. I, mother’s poor boundaries and impulsive behaviors led to the failure of a previous placement with Ms. H. in 2016. Caden lost two other potentially permanent placements in February 2017 and May 2017 due to mother’s disruptive conduct. (Caden C. I, supra, 34 Cal.App.5th at pp. 96-98.) Although Ms. H. then agreed to take the minor back, Caden’s long-term placement with Ms. H. was disrupted once again by mother as discussed above.
Caden’s new court appointed special advocate (CASA) also filed a report in advance of the December 28, 2020 hearing. Per his CASA, Caden was enthusiastic, active, enjoyed participating in activities with others, and was eager to share his knowledge. He demonstrated impressive physicality. During a visit after Caden was told he would be moving from Ms. H.’s home, the minor expressed sadness and anger and was otherwise quiet, showing no interest in anything. However, the CASA was “pleasantly surprised” at the minor’s resilience on her first visit to his new home. Caden appeared very relaxed and interactive. He was excited to share that he already knew how to get to the local park and that he was getting a weekly allowance, with possible extra money for doing chores. Caden was the only child in the home and had his own room. The current caregiver seemed to be taking a great interest in the minor’s well-being. The CASA summarized Caden’s new placement as “stimulating, supportive, safe, and enjoyable” for the minor. Caden expressed to his CASA that he wanted to stay in contact with Ms. H.
According to the CASA, Caden’s teachers described him as calm and laid back, with no disciplinary issues. Caden was not participating in his sports teams due to the COVID-19 pandemic, and he missed his teammates and playing sports. However, his current caretakers had taken him skiing and were planning to teach him to snowboard. The minor was very healthy. The CASA reported that Caden was “passionate about the things he loves . . . curious, aware of his environment, and like[d] exploring.” He asked her questions ranging from” ‘where did rap music come from?'” to” ‘how does somebody get into a place like [UC Berkeley]?'” In sum, she enjoyed spending time with him.
At the December 28 hearing, minor’s counsel objected to the Agency’s recommendation that the minor remain in foster care rather than proceed to a permanency planning hearing. Caden’s caregivers had informed counsel the previous day that they were willing to provide permanency for Caden, either through adoption or, failing that, guardianship. The Agency indicated that it would need to follow up with the caregivers and provide any more recent information to the court. Mother’s counsel then requested a continuance, but the juvenile court stated it would only entertain such a request by written motion. The court maintained the January 2021 dates for the contested permanency planning hearing.
Mother filed a motion for continuance of the permanency planning hearing on January 4, which-after opposition from the Agency and minor’s counsel-was denied by the juvenile court as not in Caden’s best interests.
On January 5, 2021, the Agency filed an updated assessment report, indicating that it was recommending adoption and termination of parental rights. Although Caden had only been living in his new placement for a short time, his caregivers were open to permanency, including adoption, and stated they wanted what was in the minor’s best interests. They expressed joy regarding Caden being a part of their family and lives. The caregivers had successfully fostered a handful of children over the previous few years and had expressed the hope of providing permanency for a child in post-permanency status if the opportunity arose. There appeared to be no impediments to adoption. Caden told the social worker that he felt safe and comfortable in the placement and wanted to remain there. The social worker, however, had not explicitly discussed a plan of adoption with the minor, hoping to give the relationship time to progress naturally without forcing Caden to choose between his conflicting feelings regarding missing his mother and forming an attachment with a family who could provide him with permanence.
With respect to visitation, the Agency reported that mother’s inability to comply with set rules and court-ordered expectations had not changed. The Agency remained concerned that mother “consistently projects her dissatisfaction onto Caden instead of listening to what he thinks and feels.” She also places guilt on the minor for becoming comfortable in a placement. At the virtual visit in March 2020, for example, mother asked several times whether Caden was okay-stating that he looked “miserable and unhappy”- despite the fact that the minor continued to assure mother he was fine. At the end of the visit, mother stated:” ‘I know something is wrong and you just don’t want to say it.'” Caden ignored the comment. At the May 2020 virtual visit, the social worker had to intervene and remind mother not to discuss the case. Mother became angry and cried several times during the visit, escalating when Caden mentioned his iPad was missing. Mother promised Caden she would get to the bottom of the issue, crying and yelling that “Caden deserved everything good in the world.”
C. The Second Permanency Planning Hearing i. Motion to Quash Minor’s Testimony
Caden’s second permanency planning hearing was held over four days in January 2021. At the beginning of the hearing on January 11, 2021, the juvenile court considered minor’s motion to quash mother’s subpoena of Caden’s testimony. Minor’s counsel argued that Caden’s wishes could be presented by other means and that testifying would be traumatizing for the minor and could undermine his nascent stability in his current placement. Counsel further asserted that it would place Caden in the “psychologically untenable” position of choosing between his desire for a permanent, stable home and his loyalty to mother. In addition, Caden had informed his attorney that he did not want to testify, even if it was done virtually or in chambers. Mother opposed the motion to quash. Mother’s counsel argued that Caden’s firsthand testimony was needed because the reports variously indicated that Caden did not want to discuss adoption, that it was difficult for him to discuss it, or that he had conflicting feelings or contrary messages. During this exchange, Caden became very emotional and began to cry. He stated: “I wanted to say that I don’t talk about it because every single thing I say to you guys, you guys never consider it.” Relying on In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1088-1089, the juvenile court found that it would be harmful to Caden to require his testimony and that his feelings were expressed well in Agency reports. The court assured Caden that it had been reading the reports and what the minor had indicated, and while it could not promise what it was going to do, the court heard him.
Caden was present via videoconference for the first day of the hearing, the morning of the second day, and for argument and decision, but otherwise did not attend. Mother appeared via the video platform for most of the hearing.
ii. Testimony of Social Worker
The social worker Elizabeth Short testified that she had been assigned to Caden’s case since April 2019. She described Caden as a “really funny” and “really engaging” 11-and-a-half-year-old boy with a wide variety of hobbies. Although she thought she knew what he looked like when relaxed, she was seeing something different since the minor moved to his new placement. Caden was smiling a lot more and just seemed more comfortable. He was trying many new things, including new foods, and was very positive about it. He was taking bass guitar lessons arranged by his CASA. And he had done a wilderness skills camp over school break which he “really, really liked.” The caregivers worked remotely, and they took turns supporting Caden’s distance learning. According to the social worker, there was a level of joking and camaraderie around the placement that was unusual so soon after a move. She noted in this regard that Caden told her he didn’t know people bought cheese in blocks instead of pre-shredded in bags and asked her if she knew anyone who shredded their own cheese. Caden was observed laughing at this testimony. The foster parents had “nothing but lovely things” to say about Caden and his adjustment. They kept him connected to his former community in Novato. He had slumber parties with his friends and communication with Ms. H.
In a recorded sidebar, Agency counsel informed the juvenile court that, during a break in the social worker’s testimony, mother had made inappropriate threats through the video platform that she would find the caregivers, which were heard by Caden, the caregivers, and the CASA. Specifically the caregivers heard mother state,” ‘We are going to expletive find you, ‘” while the CASA heard:” ‘Don’t worry. I believe we will find you.'” In addition, both the court and the social worker had observed mother frequently mouthing things during the hearing while muted, which at times appeared to be directed communications. The court admonished mother not to make any further improper communications on the video platform, whether they be threatening or in anger or by mouthing. Mother, however, was unable to refrain from moving about, mouthing, and yelling while on mute.
Ms. H. had informed the social worker that there was a time, early in Caden’s case, when she and mother had an “okay relationship,” but it deteriorated over the years with mother’s communications often devolving into harassment. Both Ms. H. and Caden’s former therapist told the social worker they saw positive changes in Caden after his visitation with mother was reduced to once every other month. The minor was less irritable, he exhibited less dysregulation in his mood, there was less arguing in the foster home, and Caden was able to follow the home rules.
Ms. Short testified that mother was generally consistent with visitation, and Caden looked forward to seeing her. However, when mother discussed the case with Caden during visits, it affected him negatively and she communicated inaccurate information, which led Caden not to trust what the social workers told him. For example, mother told Caden that his dependency case was all his attorney’s fault-that counsel had some sort of vendetta against mother-which Caden continued to believe, and which negatively impacted his ability to trust his attorney and other adults. At one point, Caden asked the social worker why he had been removed, stating that he had never seen mother use drugs and that she told him that she did not use them. During the May 2020 virtual visit, mother brought up the case, making statements such as “this isn’t Caden’s fault” and” ‘they just didn’t want me to have you.'” When mother became upset and began to cry and yell, Caden was “visibly bothered” by her behavior. Ms. H. reported that, after the visit, Caden went straight to his room, put his head under the pillow, and didn’t want to talk about what happened.
The social worker opined that, if parental rights were terminated, it would be a good thing for Caden to have some contact with his mother throughout his teen years in a controlled, supervised setting. She testified that, according to a May 2018 contact note in the case file, Caden had reportedly scratched himself at that time because he missed mother. Ms. Short also testified that it had been very difficult for Caden to deal with multiple transitions between different foster families. As he has gotten older, Caden has felt ambivalent about his situation because he likes living in a safe and stable home, but he also likes having a relationship with mother. She stated the Agency’s view “that a stable and predictable caregiver is what can help guide Caden through the difficulties that he has experienced and witnessed while in [mother’s] care and that that can be one of the things that would really help him through, especially through his teenage years, to be able to self-regulate better, to help heal his mental health, and kind of stabilize some of these issues that came up while he was in [mother’s] care.” Finally, when asked to summarize her experience with mother, the social worker said “unpredictable.”
iii. Mother’s Bonding Expert
Mother’s bonding expert, Dr. Molesworth, submitted an updated bonding study during the contested permanency planning hearing. Dr. Molesworth observed Caden and mother for two hours in July 2020 and two hours in October 2020. He interviewed Caden alone on both of those occasions. He also interviewed mother on January 17, 2021. After the July visit, Caden told Dr. Molesworth that he missed mother every day and wished he could see her every day. On a scale of 1 to 100, he missed mother 100. If he did not live with Ms. H., he would also miss her 100. He would like to live with mother and Ms. H. on alternating weeks. After the visit in October 2020, Caden acknowledged that he sometimes thought about other things and did not miss mother, but stated he missed her 99 out of 100. He told Dr. Molesworth he was happy living with Ms. H. but would like to see mother more-two to three hours or a whole day. Caden elaborated: “[W]hen I grow up, I want to see [mother] a lot, I want to keep in touch with all my family including [Ms. H.]. I want to invite them to dinner and go to a movie. I don’t want to be one of those people who does not have their family.” (Italics omitted.)
His prior bonding study is summarized in our prior published opinion in this matter. (See Caden I, supra, 34 Cal.App.5th at pp. 101-102.)
Mr. Molesworth opined that Caden continued to have a significant, positive bond with mother. Although their interactions were less exuberant than three years ago, Dr. Molesworth felt this could be due to Caden’s developmental stage. Caden, however, also reported strong feelings for Ms. H., whom he stated he loved like a mom. According to Dr. Molesworth, Caden’s emotions and thinking regarding his bond with mother had evolved since his last evaluation. There was evidence of some nuance and flexibility in his thinking, as mother is no longer the sole focus of his emotional life. Rather, his “affectionate emotions” towards Ms. H. revealed that Caden can have “strong feelings towards other significant emotional figures in his life.”
Nevertheless, Dr. Molesworth opined that if Caden were deprived of contact with mother it would be a major loss. He would experience emotional distress and pain, and it would likely have a negative effect on his self-regard. Dr. Molesworth acknowledged that, while initially devastated by his removal from Ms. H., Caden adjusted well to his new home. He opined, however, that the loss of mother would be on a different order. Mother represented an “affectionate and loving maternal figure” for Caden. She is a repository of “aspects of his history and life experiences, the one person who has been a fixture in his life.” The loss of his mother would be “likely to contribute to depression and chronic stress and have an enduring impact on his psychology.”
Dr. Molesworth reported that, although guardianship would allow a parent to petition for reunification in the future, mother had stated to him that she did not intend to do so. He acknowledged that a guardianship could be negatively impacted should mother create disruptions by intruding into the parenting of the legal guardians. Mother’s unsolicited intrusions, even if well-intentioned, could be confusing for Caden. In addition, Caden’s special needs render him vulnerable to emotional regression during periods of increased stress. However, “his special needs may be addressed, and his emotional vulnerabilities buffered, by adults who are attuned and responsive to his needs.”
Dr. Molesworth testified at the contested hearing as mother’s only witness. He qualified by stipulation as an expert in the areas of child psychology and child development, bonding and attachment, bonding study evaluations, and forensic psychology. He had completed seven bonding studies in dependency cases in the last four years. He did not do any collateral interviews with the social worker or Caden’s current therapist for his 2021 evaluation.
Dr. Molesworth testified regarding the contents of both his 2017 and 2021 bonding studies. He elaborated that the depressive features associated with Caden’s loss of mother could possibly include episodes of depressed mood, self-harm, substance abuse, and acting out behaviors. He described Caden as “a fairly expressive guy” who could “talk about his feeling quite readily” and was “easy to have a conversation with.” He also reiterated that there could be a “disruptive influence” by mother in the context of a legal guardianship.
iv. Agency Expert
The Agency’s expert, Dr. Alicia Lieberman, submitted an updated clinical consultation report during the contested permanency planning hearing. She had consulted on Caden’s case since 2016. Her report, dated January 22, 2021, discussed some of the limitations of Dr. Molesworth’s updated bonding study. For example, the bonding study focused on the “affectional bond” between Caden and mother, which had never been disputed. It failed, however, to consider the extensive evidence of dysregulation and disruptive behavior associated with Caden’s visits with mother. In addition, the bonding study did not address mother’s behaviors that were detrimental to the minor’s mental health, such as mother’s repeated disruption of his placements, undermining of Caden’s relationships with his foster parents, displays of crying and anger during visits, and refusal to abide by the visitation rules with resulting conflict. This conduct placed an emotional burden on the minor, whose attachment to his mother is characterized by intense worry about her well-being. It caused Caden to adopt a “caretaking role that he is too young to uphold without serious detriment to his healthy development.”
Her prior clinical consultation report is summarized in our prior published opinion in this matter. (See Caden I, supra, 34 Cal.App.5th at pp. 100-101.)
Mother’s persistent interference over the years had caused Caden to lose “important opportunities to maintain stable relationships with adults who were invested in his wellbeing and willing to provide a permanent home to him.” There was a high risk this behavior would continue in Caden’s current placement. Because of this, placement decisions other than adoption, such as legal guardianship, posed “unacceptable risks for Caden’s wellbeing.” Dr. Lieberman cautioned this would be “the last chance that Caden has for placement stability and the benefits that it will provide for his healthier development as an adolescent and into adulthood.”
The adoption recommendation was made after a careful weighing of the risks and benefits. According to Dr. Lieberman, continued placement instability as Caden makes the challenging transition into adolescence represents “a clear danger to this child’s ability to acquire emotional stability as an adult.” Dr. Lieberman acknowledged that termination of parental rights and adoption would “present emotional challenges for Caden.” However, they would “also free him to process the separation from his mother, to focus on deepening his relationships with the new parent figures, and to plan for how he wants to re-establish a connection with his mother when he is able to do so from a more autonomous developmental stage.” In sum, giving Caden the experiences of “a solid home with predictable relationships and healthy, growth-promoting routines has been the least detrimental course of action for him for many years.”
Dr. Lieberman testified as a rebuttal witness at the contested hearing. She was accepted as an expert in parent-child bonding and attachment with a specific focus on childhood trauma and its impact on children. She did not perform a bonding study and did not speak with or observe mother and Caden. Instead, she provided a clinical consultation after reviewing the breadth of data. Specifically, she reviewed the entire child welfare file, met with different participants in the case, had a long conversation with Caden’s initial therapist, spoke with Ms. H., and took part in numerous meetings with the different service providers involved with Caden over the course of years.
Dr. Lieberman testified that when his visits with mother were reduced from weekly to monthly, a part of Caden was sad and upset but he did not have a decline in performance at school and his behavior in the home was more stable. When visits were reduced to every other month, Caden was upset and emotional, but he worked through it with Ms. H. and the social worker, recovered very well, and his behavior afterwards actually stabilized. Dr. Lieberman further testified that not being able to see his mother as much as he would like was “a manageable stress” for Caden. Just because a child has vulnerabilities doesn’t mean that any particular stress is worse than other kinds of stress. Separating a child from a parent when that child experienced physical or emotional abuse or neglect under that parent’s care can actually be a therapeutic intervention. Such a child might have a connection with that parent that has loving components but that also has components of fear and anger.
v. Argument and Decision
Minor’s counsel and Agency counsel both argued in favor of termination of parental rights and a permanent plan of adoption. In making his remarks, minor’s counsel expressed sadness that “once again [a] hearing [t]hat is supposed to be about Caden has turned out to be a hearing about his mother.” In contrast, mother’s attorney argued that Caden was not generally adoptable and that there was insufficient evidence he was specifically adoptable by his current caregivers, making termination of parental rights improper. Moreover, even if the court found Caden adoptable, mother’s counsel contended that termination of parental rights was still inappropriate due to the existence of a beneficial relationship between Caden and mother.
The juvenile court announced its decision on February 2, 2021. It first found Caden to be generally adoptable by clear and convincing evidence. The court then considered application of the beneficial relationship exception to the case. It found regular visitation by mother to the extent permitted by court order. It next turned to the question of “whether the nature and extent of a particular parent-child relationship is sufficient to be deemed beneficial for purposes of the exception.” The court found that there was an emotional bond between Caden and mother. It stated, however, that in determining whether a relationship is beneficial “you have to look at all of the different factors, including all the unique factors in this case.”
The court considered the entire history in the matter and concluded that mother’s relationship with Caden was not beneficial because it was not a positive, parental relationship. Rather than being nurturing, it was disruptive and deprived him of stability and permanence with different caregivers. The court assured Caden that it had read and heard everything Caden had said, and it had also considered the minor’s need for safe and predictable caregiving given his history. The court finally determined that the benefit of an adoptive home for Caden outweighed “any benefit that could have arisen” from his relationship with mother. This timely appeal followed.
A. The Supreme Court’s Caden
Several months after the second permanency planning hearing in this matter, our high court issued its opinion in Caden C., supra, 11 Cal.5th 614. The Supreme Court recognized that the juvenile court’s February 2021 termination of mother’s parental rights rendered the case moot. (Id. at p. 629, fn. 3.) However, noting that the beneficial relationship exception “is of great importance and one of the most litigated issues in dependency proceedings,” and that the questions presented might otherwise evade review, the court decided to retain and decide the matter. (Ibid.)
Specifically, the Supreme Court granted review to clarify the applicability of the beneficial relationship exception-especially “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 a conflict in the appellate courts regarding the appropriate standard of review for decisions involving the exception. (Id. at p. 629.)
The beneficial relationship exception is “limited in scope.” (Caden C., supra, 11 Cal.5th at p. 631.) As our high court summarized, the exception “requires a parent to establish, by a preponderance of the evidence, . . . 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.” (Id. at p. 629; see also § 366.26, subd. (c)(1)(B)(i).) In other words, to take advantage of the exception, a parent must prove: “(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.” (Caden C., at p. 631.) The Supreme Court noted that, pursuant to relevant statutory provisions, when a juvenile court determines that the beneficial relationship exception applies, it is tantamount to concluding that “adoption or termination is not ‘in the best interest of the child.'” (Ibid., quoting § 366.36, subd. (c)(4)(A).) The Court then addressed each element of the beneficial relationship exception in turn.
“The first element-regular visitation and contact-is straightforward. The question is just whether ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.'” (Caden C., supra, 11 Cal.5th at p. 632, quoting In re I.R. (2014) 226 Cal.App.4th 201, 212.) Visits and contact are important in this context because they can” ‘continue or develop a significant, positive, emotional attachment from child to parent.'” (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) We review a juvenile court’s finding with respect to regular visitation and contact for substantial evidence. (Id. at p. 639.) The Agency concedes in this appeal that mother has satisfied the first element.
“As to the second element, courts assess whether “the child would benefit from continuing the relationship,” and thus the focus is on the child. (Caden C., supra, 11 Cal.5th at p. 632, quoting § 366.26, subd. (c)(1)(B)(i), italics added.) In determining whether the relationship is beneficial-that is, “strong, positive, and affirming” for the child (id. at p. 634)-juvenile courts may consider “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.'” (Ibid., quoting Autumn H., supra, 27 Cal.App.4th at p. 576.) In addition, “courts often consider how children feel about, interact with, look to, or talk about their parents.” (Ibid.) A parent’s struggles, such as those that led to the dependency, “speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent.” (Id. at p. 638.) Such continuing struggles “may mean that interaction between parent and child at least sometimes has a’ “negative” effect’ on the child.” (Id. at p. 637, quoting Autumn H., supra, 27 Cal.App.4th at p. 576.)
Courts must be mindful, however, that parent-child relationships do not necessarily conform to a particular pattern. (Caden C., supra, 11 Cal.5th at p. 632; [” ‘parenting styles and relationships differ greatly between families’ “].) Moreover, “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” ‘” that a parent provides during visitation. (Ibid., quoting In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 (Brandon C.).) Finally, the Supreme Court recognized that “sometimes . . . a relationship involves tangled benefits and burdens.” (Id. at p. 634.) It emphasized that information from expert psychologists who have either observed the child and parent or can synthesize others’ observations is important when determining the psychological importance of the relationship to the child. (Id. at pp. 632-633 & fn. 4.) A juvenile court’s finding with respect to the existence of a beneficial relationship is “essentially a factual determination” and is also reviewed for substantial evidence. (Id. at p. 640.) In addressing the third element-whether termination of the parental relationship would be detrimental-our high court was guided by the seminal decision interpreting the beneficial relationship exception, Autumn H., supra, 27 Cal.App.4th 567. Autumn H. held that, in assessing detriment, the juvenile 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.” (Caden C., supra, 11 Cal.5th at pp. 631-632, citing Autumn H., at p. 575.) “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.” (Id. at p. 633.) Thus, the question for the juvenile court is “what life would be like for the child in an adoptive home without the parent in the child’s life.” (Ibid.) In this context, “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.'” (Ibid., quoting Autumn H., at p. 575.)
Under this analysis, termination may be detrimental “[e]ven where it may never make sense to permit the child to live with the parent.” (Caden C., supra, 11 Cal.5th at p. 634.) Thus, the permanency planning hearing “is decidedly not a contest of who would be the better custodial caregiver.” (Ibid.) Rather, “understanding the harm associated with severing the relationship is a subtle enterprise-sometimes depending on more than just how beneficial the relationship is.” (Ibid.) When a parent-child relationship “involves tangled benefits and burdens,” the juvenile court “faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.” (Ibid.) Under such circumstances, a court could 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.” (Id. at p. 635.)
When reviewing the juvenile court’s conclusion with respect to this third element, underlying factual findings-regarding, for example, specific features of the child’s relationship with the parent, the harm or benefit related to the child’s loss of those features, how harmful the total loss would be, and how an adoptive placement may offset or even counterbalance those harms-are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 640.) However, the juvenile court’s ultimate determination of detriment-which weighs the harm of losing the parental relationship against the benefits of placement in an adoptive home-requires the court to “engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that’s inherently uncertain” and is thus properly reviewed for abuse of discretion. (Ibid.) The Supreme Court acknowledged that where, as here, “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 substantial evidence and abuse of discretion standards of review].'” (Id. at p. 641.) Thus, the hybrid standard endorsed by our high court 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.'” (Ibid., quoting In re Zeth S. (2003) 31 Cal.4th 396, 410.)
B. The Juvenile Court did not Commit Legal Error in Finding no Beneficial Relationship in This Case
At a permanency planning hearing held in accordance with section 366.26, the juvenile court is charged with determining the most appropriate permanent plan of out-of-home care for a dependent child that has been unable to reunify. (In re Casey D. (1999) 70 Cal.App.4th 38, 50, disapproved of on other grounds in Caden C. at p. 636, fn. 5.) When reunification efforts with a parent fail, as they did in this case, the focus shifts from family preservation “to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) As the most permanent of the available options, adoption is the plan preferred by the Legislature. (Autumn H., supra, 27 Cal.App.4th at p. 573.) Indeed, when a court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless a parent shows that termination of parental rights would be detrimental to the child due to one or more of the statutory circumstances delineated in section 366.26. (§ 366.26, subd. (c)(1)(B); Caden C., supra, 11 Cal.5th at pp. 630-631.) At issue in this appeal is the beneficial relationship exception to adoption set forth in section 366.26, subdivision (c)(1)(B)(i).
At the 2021 permanency planning hearing in this matter, the juvenile court found Caden to be generally adoptable, and mother does not challenge this determination on appeal. Thus, the juvenile court was statutorily required to terminate mother’s parental rights absent proof by mother of a beneficial relationship. On appeal, mother does not suggest that substantial evidence fails to support the juvenile court’s factual finding that no beneficial relationship existed. Instead, she raises a legal challenge, claiming that the juvenile court erred by requiring mother to show that she occupied a “parental role” during her visitation with Caden, an improper factor under the beneficial relationship exception as recently elucidated by Caden
C. We are not persuaded.
Mother focuses on a single statement made by the juvenile court in rendering its decision. The court stated at one point with respect to the beneficial relationship exception that “you have to look at all the different factors, including all of the unique factors in this case, but what it speaks to is that the benefit necessarily talks about a parental relationship. It talks about that that particular ongoing contact, which was limited in this case by the court order, is such that it would create a parental role in Caden’s visitation. [¶] And I can’t find that here.”
Mother acknowledges that the beneficial parent-child relationship involves “a significant, positive, emotional attachment from child to parent” the severance of which would cause great harm to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) She asserts that requiring a parent to demonstrate that they occupy a “parental role” during visitation is not an element of the beneficial relationship to adoption, and therefore amounted to legal error. In making this claim, she relies on many of the same cases the Supreme Court cited with approval in Caden C. Mother argues that “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” ‘” that a parent provides during visitation. (Caden C, supra, 11 Cal.5th at p. 632, quoting Brandon C., supra, 71 Cal.App.4th at p. 1538.) She emphasizes that parental relationships do not necessarily conform to a particular pattern. (Ibid., citing In re Grace P. (2017) 8 Cal.App.5th 605, 614-615; In re S.B. (2008) 164 Cal.App.4th 289, 299 (S.B.); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, disapproved of on other grounds in Caden C. at p. 636, fn. 5.) And she points out that the beneficial relationship exception does not require a showing of “day-to-day contact” between the parent and child or the existence of a “primary attachment.” (See S.B., at pp. 299-301.)
We do not disagree with any of the foregoing legal points. However, we cannot conclude that the juvenile court’s comment about a “parental role” suggests that the court was requiring mother to demonstrate “some idealized version of what a parent-child relationship should look like.” Rather, when the juvenile court’s statement is viewed in the context of its overall remarks and the record as a whole, it is clear the court was explaining that Caden did not enjoy a positive and nurturing emotional attachment to mother because of mother’s disruptive and destabilizing behaviors and their negative impact on the minor.
When the juvenile court addressed the first element of the beneficial relationship exception-regular visitation and contact-the court explained that this element “is a purely quantitative analysis, and it is limited to the extent permitted by court orders . . . .” The court did not suggest that it viewed visitation through the litmus test of a parental role, and it readily found that mother had satisfied the first element of the exception.
In discussing the second element, whether the parent-child relationship is beneficial to the minor, the court explained that “[you] have to look at that and see if that continuing contact then results in a benefit to Caden and whether the nature and extent of a particular parent-child relationship is sufficient to be deemed beneficial for purposes of the exception.” That is a correct statement of the law. (See Autumn H., supra, 27 Cal.App.4th at p. 575 [beneficial relationship exception “applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent”]; see also Caden C., supra, 11 Cal.5th at p. 632, quoting Autumn H.)
After noting that the inquiry required looking at “all of the different factors,” the court made the statement about mother playing a parental role during visitation which she claims was legal error. The court, however, went on to explain: “[A]nd the reason I can’t find that here is that all of the readings that I have, the visitation, et cetera, goes to the disruption of that goal rather than an encouragement of it.” The court was plainly focused on mother’s disruptive behaviors-whether in visitation or in her interactions with Caden, foster families, therapists, and others-and the negative and destabilizing effect those interactions had on Caden. The court expressly noted that Caden had not been the cause of the disruptions in his foster placements. Later in the hearing, the court stated: “[T]he foster parents have also expressed a concern about the involvement of  mother and ongoing visitation contact with Caden as being the primary reasons for the child not being able to connect and settle into a permanent home, and so the very thing that I have found in regards to regular visitation was the very means upon which that permanency had been in some manner undermined.”
In discussing Dr. Molesworth’s bonding study, the court remarked that Dr. Molesworth talked about “emotional contact” between mother and Caden, but his study did not talk about a “parental role,” meaning that the relationship between Caden and mother was not “a parental one, a nurturing one.” (Italics added.) Thus, the court’s comments about a parental role in this case reflected a determination that mother’s regular visitation and contact with Caden did not result in a positive and nurturing attachment, i.e., that it was not a beneficial relationship for the minor.
At oral argument in this matter, mother’s counsel suggested that insufficient evidence supported this determination, or at least that the evidence in support of the court’s finding was stale. The record clearly belies this claim. Mother’s negative behaviors have included her disruption of multiple foster placements by making unwarranted reports and interfering with the foster parents’ caregiving practices and routines, undermining Caden’s relationship with the foster parents, exposing Caden to displays of anger and crying during visits, making Caden feel guilty for becoming comfortable in a foster home, discussing the case at visitation and conveying inaccurate or misleading information, and refusing to abide by visitation guidelines, causing conflict within the foster family households. The record is replete with instances in which Caden became dysregulated and emotionally distraught by these interactions, grew distrustful of adults around him, and was deprived of an opportunity to develop stable and nurturing relationships in other foster households. Mother’s disruptive behaviors extended well into 2020 and beyond, with a May 2020 virtual visit that degenerated into mother crying and yelling, mother’s referral of Ms. H. to a child abuse hotline over a misplaced iPad that contributed to Caden’s loss of adoptive placement with Ms. H. in July, a November 2020 virtual visit in which mother once again ignored gift-limitation rules, and mother having to be admonished by the juvenile court about inappropriate comments and gestures at the permanency planning hearing in January 2021.
We find the recent cases cited by mother to be distinguishable. (See In re D.M. (2021) 71 Cal.App.5th 261 (D.M.); In re J.D. (2021) 70 Cal.App.5th 833 (J.D.); In re B.D. (2021) 66 Cal.App.5th 1218 (B.D.).) In B.D., the juvenile court rejected the beneficial relationship exception to adoption by “rel[ying] heavily, if not exclusively, on the fact that the parents had not completed their reunification plans and were unable to care for the children based on their long-term and continued substance abuse. The juvenile court, however, did not examine how the parents’ continued substance abuse impacted the nature of the parent-child relationship.” (B.D., at p. 1228.) This was contrary to the Supreme Court’s discussion of the beneficial relationship exception in Caden C. (See Caden C., at p. 638 [a parent’s struggles are only relevant to the extent they “speak to the benefit (or lack thereof) of continuing the relationship”]; id. at p. 634 [termination of parental rights may be detrimental “[e]ven where it may never make sense to permit the child to live with the parent”].)
The appellate court in B.D. also concluded that it was not clear from the record whether the juvenile court had properly examined “the nature of the parent-child relationship” and “whether a significant positive emotional attachment existed between the parents and children.” (B.D., supra, 66 Cal.App.5th at p. 1228 .) Finally, the social worker testified in B.D. that she believed the beneficial relationship exception did not apply due to the parents’ “inability to attend to the children’s day-to-day needs” and the fact that “the children looked to their grandmother to meet their daily needs.” (Id. at p. 1229.) Thus, the social worker improperly “equated a parental role . . . with the ability to parent ‘on a fulltime basis'” and erred in concluding that the child’s attachment to the parent must be the primary attachment. (Id. at pp. 1229-1230.) Under these circumstances, the appellate court reversed the order terminating parent rights and remanded the matter for reconsideration “based on a proper application of governing law.” (Id. at p. 1222.)
Here, in contrast, the juvenile court did not consider mother’s completion of services or her ability to parent on a full-time basis. Instead, as discussed above, it focused on her disruptive behaviors and how they negatively impacted Caden, an approach expressly endorsed by the Supreme Court in Caden C. Unlike B.D., there is ample evidence in the record concerning the nature of the parent-child relationship here, including years of social worker reports and four reports by experts.
Finally, while the social worker in B.D. improperly equated “parental role” with primary attachment and ability to parent full-time, in this case the juvenile court concluded that mother’s contact with Caden was not “parental” because it was not positive-i.e., stabilizing and nurturing. The B.D. court, itself, recognized that “[a] positive attachment between parent and child is necessarily one that is not detrimental to the child but is nurturing and provides the child with a sense of security and stability.” (B.D., supra, 66 Cal.App.5th at p. 1230.) That is exactly the inquiry the juvenile court undertook here.
Mother’s reliance on J.D. is similarly misplaced. Our colleagues in Division Two of this District reversed a termination of parental rights because it could not determine on the record before it whether the juvenile court’s ruling complied with the principles announced by the Supreme Court in Caden C. while the matter was on appeal. (J.D., supra, 70 Cal.App.5th at p. 840.) In terminating parental rights, the juvenile court made “few explicit factual findings.” (Id. at p. 851.) “It acknowledged J.D. has a relationship with [the] mother and that it is a positive one. But it found their relationship did not ‘amount to [a] parental bond’ and that ‘severing the relationship that does exist would not be so detrimental as to outweigh permanency for [J.D.]'” (Ibid.)
The J.D. court expressed concern about the lack of objective information in the record regarding the quality of the mother’s relationship with J.D. (J.D., supra, 70 Cal.App.5th at p. 861.) The appellate court observed that “by the time the juvenile court scheduled the section 366.26 hearing, the agency’s prior reports should already have provided objective, disinterested information about the quality of J.D.’s attachment to his mother, which would have assisted the court in evaluating the beneficial relationship exception when [the] mother asserted it.” (Ibid.) They did not. (Id. at p. 860; see id. at p. 862 [noting that there was no bonding study or other expert opinion in the case].) Finally, the social worker in J.D. opined, that the mother did not prove a beneficial relationship because “J.D. looked to [his caregiver], not mother, for comfort, support, structure and to meet his needs,” and had previously said that he wanted” ‘to be [the caregiver’s] son.'” (Id. at p. 859.) As the appellate court recognized: “A child’s emotional attachments are not a zero-sum game.” Thus, “such evidence does not preclude a finding [J.D.] had a significant positive attachment to mother.” (Ibid.)
Given the conclusory nature of the juvenile court’s findings on the second element, the appellate court noted that the juvenile court’s reference to “parental” role might have encompassed factors that Caden C. deems irrelevant,” such as failing to comprehend “that more than one person can occupy an important, emotional role for a child even if one-the nonreunifying parent-is incapable of providing for the child’s everyday needs and well-being.” (Id. at pp. 864-865.) For all these reasons, the J.D. court deemed it “prudent” to remand the matter for reconsideration in light of Caden C. (Id. at p. 863; see also D.M., supra, 71 Cal.App.5th at p. 270 [juvenile court improperly equated “parental role” with attendance at medical appointments and understanding their medical needs].)
None of the issues identified in these cases which warranted remand are present here. The juvenile court in this case discussed at length its finding that mother’s relationship with Caden was not beneficial. While in the cases cited by mother the juvenile courts’ conclusions that there was no “parental bond” were either ambiguous or based on improper factors, here the juvenile court made clear that mother’s bond with Caden was not “parental” because it was not nurturing and was disruptive to his permanence and stability. As discussed above, substantial evidence supports the juvenile court’s finding that mother’s negative and destabilizing behaviors have been detrimental to Caden. Finally, there is exhaustive evidence here from both the social worker reports and expert witnesses regarding the psychological importance of Caden’s relationship with mother.
At bottom, the juvenile court was concerned that the focus on Caden’s best interests had been lost somewhere during this extended and highly litigated case. In rendering its decision, it acknowledged the court’s own responsibility in making insufficient efforts towards permanency for the young minor. It also observed: “[W]e are running . . . in circles, and in the center of that circle is [mother] and not Caden.” The court decidedly put the focus back where it belongs, on Caden. As it eloquently explained to Caden: “[T]he reason I am doing this is not to be mean. The reason I am doing this is because I want you to grow. I want you to learn. I want you to live. I want you to reach forward into life with curiosity and not back down from it from fear. You need folks to help you to learn to do those things.” It explained further: “[W]hy I am doing this is because you will then get yourself in a position to be Caden, to be Caden, and I look forward to seeing that Caden.” We look forward to that eventuality as well.
In Caden C., the Supreme Court emphasized that the standard of review with respect to the beneficial relationship exception 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.'” (Caden C., supra, 11 Cal.5th at p. 641.) Having concluded that the juvenile court made its determination in accordance with relevant law, we see no reason to disturb its thoughtful determination.
Mother additionally argues that, given the juvenile court’s legal error, we must reverse the juvenile court’s termination of parental rights because it is reasonably probable that, but for that error, the juvenile court would not have rejected the beneficial relationship exception to adoption in this case. Having concluded that no error occurred, we need not address mother’s claim that the error was not harmless.
The judgment is affirmed.
WE CONCUR: Margulies, Acting P. J. Banke, J.
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Prosecution Of Judges For Corrupt Practice$
Code of Conduct for United States Judge$
Disqualification of a Judge for Prejudice
Judicial Immunity from Civil and Criminal Liability
Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge
l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form
How to File a Complaint Against a Judge in California?
Commission on Judicial Performance – Judge Complaint Online Form
Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves
Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case
Misconduct by Government Know Your Rights Click Here (must read!)
Under 42 U.S.C. $ection 1983 – Recoverable Damage$
42 U.S. Code § 1983 – Civil Action for Deprivation of Right$
$ection 1983 Lawsuit – How to Bring a Civil Rights Claim
18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law
18 U.S. Code § 241 – Conspiracy against Right$
$uing for Misconduct – Know More of Your Right$
Police Misconduct in California – How to Bring a Lawsuit
Malicious Prosecution / Prosecutorial Misconduct – Know What it is!
New Supreme Court Ruling – makes it easier to sue police
Possible courses of action Prosecutorial Misconduct
Misconduct by Judges & Prosecutor – Rules of Professional Conduct
Functions and Duties of the Prosecutor – Prosecution Conduct
What is Sua Sponte and How is it Used in a California Court?
Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case
PARENT CASE LAW
RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$
YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK
9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$
Amdt126.96.36.199.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$
9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$
California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights
Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS
SEARCH of our site for all articles relating for PARENTS RIGHTS Help!
Child’s Best Interest in Custody Cases
GRANDPARENT CASE LAW
Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes
Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required
Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf
Distinguishing Request for Custody from Request for Visitation
Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment
Child’s Best Interest in Custody Cases
9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship
When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder
Joinder In Family Law Cases – CRC Rule 5.24
GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center
DUE PROCESS READS>>>>>>
Due Process vs Substantive Due Process learn more HERE
Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here
Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt188.8.131.52.2 Mathews Test
“Unfriending” Evidence – 5th Amendment
At the Intersection of Technology and Law
We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings
Retrieving Evidence / Internal Investigation Case
Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here
Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here
Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:
APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here
Learn About Policy 814: Discovery Requests OCDA Office – Click Here
Request for Proof In-Custody Form Click Here
Request for Clearance Letter Form Click Here
Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here
Request Authorization Form Release of Case Information – Click Here
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
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
Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence
First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here
Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation
Cal. Code Civ. Proc. § 1008 Motion to Reconsider
Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case
CACI No. 1501 – Wrongful Use of Civil Proceedings
Penal Code “995 Motions” in California – Motion to Dismiss
WIC § 700.1 – If Court Grants Motion to Suppress as Evidence
Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here
Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here
Cleaning Up Your Record
Penal Code 851.8 PC – Certificate of Factual Innocence in California
SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT
Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC
Cleaning Up Your Criminal Record in California (focus OC County)
Governor Pardons Click Here for the Details
How to Get a Sentence Commuted (Executive Clemency) in California
How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion
Vacate a Criminal Conviction in California – Penal Code 1473.7 PC
Epic Criminal / Civil Right$ SCOTUS Help – Click Here
Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here
Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on
Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors
Family Treatment Court Best Practice Standards
Download Here this Recommended Citation
Please take time to learn new UPCOMING
The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site
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.