Opinion
B316415 B313603
02-01-2023
In re S.H. et al., Persons Coming Under the Juvenile Court Law. v. FELICIA H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian &Associates and Arezoo Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. CK91964, Robin R. Kesler, Judge Pro Tempore.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Tarkian &Associates and Arezoo Pichvai for Plaintiff and Respondent.
WEINGART, J.
Appellant Felicia H. (Mother) challenges the juvenile court's order terminating her parental rights to three of her children, S.H., D.H., and G.D., upon finding Mother did not establish the beneficial relationship exception to termination applied. She contends the juvenile court erred in requiring her to demonstrate that she occupied a parental role, a factor implicitly disapproved of in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). She further argues that the juvenile court substantially relied on this improper factor in its ruling, and thus, the error was prejudicial.
See Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). Further unspecified statutory references are to the Welfare and Institutions Code.
The Los Angeles County Department of Children and Family Services (DCFS) argues that although the juvenile court noted Mother did not occupy a parental role, it also described other reasons why the beneficial relationship exception did not apply, including evidence that the children did not appear to have a substantial relationship with Mother. DCFS also argues the juvenile court's ruling was correct because Mother's relationship with the children created a negative environment for them and Mother did not prove termination of her parental rights would be detrimental to them.
We agree with Mother that the juvenile court erred in considering a factor disapproved by Caden C. However, we conclude this error was harmless because there is insufficient evidence in the record as a matter of law to satisfy the second factual element of the Caden C. test, namely that the children would benefit from continuing their relationship with Mother. We therefore affirm the juvenile court's order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Giving Rise to DCFS Involvement and the Petition
Mother first came to the attention of DCFS in 2012, when her daughter S.H. (born 2009) and her son D.H. (born 2010) were temporarily removed after D.H.'s foot was burned with a curling iron and Mother failed to adequately explain the injury. By March 2017, Mother had five children: daughter S.H., son D.H., son G.D. (born 2013), son J.J. (born 2015), and newborn daughter A.H. The children resided with maternal great aunt, S.T., (Maternal Great Aunt) during the school year and with Mother during the summer, winter, and spring breaks. According to Maternal Great Aunt, she had "help[ed]" Mother with S.H. since she was two years old, D.H. since he was two months old, and G.D. since he was four months old.
Michael D. is S.H. and G.D.'s presumed father. Andrew B. is D.H.'s alleged father. Daquan C. is A.H.'s alleged father. Romel J. is J.J.'s alleged father. None of the fathers is a party to this appeal. We accordingly omit any facts or procedural background related to them.
At the time of A.H.'s birth, DCFS received a referral alleging Mother disclosed she had used marijuana during her pregnancy to control seizures and migraines because she did not like the side effects of her prescription medication. On April 13, 2017, DCFS received another referral alleging Mother had left J.J. in the care of Mother's sister, R.W., who, upon waking from a nap, found J.J. in a swimming pool. Paramedics transported J.J. to the hospital, where he later died. Medical exams revealed multiple retinol hemorrhages that suggested "non-accidental trauma" predating the drowning. Mother denied any child abuse.
On April 20, 2017, DCFS filed a petition pursuant to section 300, subdivisions (a), (b)(1), (f), and (j), alleging the children were at risk of serious harm based upon, inter alia, Mother's acts resulting in non-accidental trauma to and the death of sibling J.J. (counts a-1, b-1, f-1, j-1). DCFS further alleged the children were at risk of harm within the meaning of section 300, subdivision (b)(1) due to Mother's substance abuse and prior conviction for the sale of cocaine base (count b-2).
At the detention hearing, the juvenile court found a prima facie case for detaining the children had been established and placed the children with Maternal Great Aunt. It ordered DCFS to provide family reunification services and granted monitored visitation for Mother with the children for a minimum of three times a week for three hours per visit.
B. Mother's Relationships and Visitation with the Children, April 2017 through March 2018
DCFS interviewed the children in April 2017, May 2017, and January 2018. The children routinely stated they felt safe and happy in Maternal Great Aunt's care and liked staying with her. S.H. stated she also liked being with Mother. D.H. liked visiting Mother and expressed on two occasions that he equally liked living with Mother and Maternal Great Aunt. G.D. stated he felt safe with Mother and wanted to live with her as well. All the children denied child abuse by Mother or Maternal Great Aunt. DCFS reported the children were physically healthy, had positive attitudes, and "show[ed] comfort in parent's presence."
Mother participated in monitored visitation on May 31, 2017, and attended D.H.'s graduation from kindergarten. According to DCFS, because Mother was grieving J.J.'s death, she had limited contact with the children.
In March 2018, Mother and Maternal Great Aunt agreed to a visitation schedule. DCFS twice reported Mother had weekly visits with the children. Mother told DCFS that she loved and missed her children, she wanted more time with them, and she did not want to lose their bond.
C. Jurisdiction and Disposition Report, First Amended Petition, and Interim Reports
Between July 18, 2017 and April 30, 2018, the juvenile court continued the jurisdiction and dispositional hearing pending receipt of the coroner's report relating to J.J. and due to court congestion. Mother did not attend any of the drug screenings scheduled between September 2017 and February 2018.
Neither the coroner's report nor a summary of it is included in the appellate record.
On April 5, 2018, DCFS amended the section 300 petition to include a count that the children were at risk due to Mother's neglect as evidenced by J.J.'s drowning (count b-3).
On April 30, 2018, the juvenile court held a combined jurisdiction and dispositional hearing. It sustained counts b-2 and b-3 relating to J.J.'s drowning and Mother's substance abuse, and dismissed counts a-1 and b-1 relating to the alleged "nonaccidental trauma" to J.J. It removed the children from their parents, ordered monitored visitation for Mother, ordered family reunification services for Mother, and required Mother to participate in a full drug treatment program if she missed drug tests or tested positive.
The juvenile court's minute orders do not address counts f-1 or j-1, and the appellate record does not include the reporter's transcript for the jurisdiction and dispositional hearing.
Mother missed drug tests scheduled on May 2, July 24, August 16, August 29, September 5, and September 19, 2018. On September 17, Mother stated she had enrolled in a drug and alcohol treatment program.
D. Status Review Reports and Hearings
1. First Status Review Period
In October 2018, the children continued to report they were safe and happy living with Maternal Great Aunt. The three older children described positive experiences in school, with extracurricular activities, and with friends. The social worker observed A.H. happily interact with her siblings and appear calm when Maternal Great Aunt held her. Maternal Great Aunt provided the children with affection, necessities, and regular medical, dental, and psychological care. Maternal Great Aunt often attended school meetings on Mother's behalf, and, on November 8, 2018, the juvenile court ordered that Maternal Great Aunt be made a co-educational rights holder for the children.
On October 11, 2018, the children's licensed clinical social worker (with whom the children received therapy) reported that "[M]other's inconsistencies in her contact with the children is causing some confusion in the children. Additionally, the children seem to be emotionally unsettled with promises that [Mother] makes during her interactions with the children."
DCFS advised the juvenile court that "[d]uring this review period, [M]other was consistent with the children's visits for the most part," except for the "past month." Neither Mother nor Maternal Great Aunt strictly adhered to the visitation schedule, and they had difficulties coordinating visits and telephone calls. They agreed Mother should obtain new, additional monitors for in-person visits, although Maternal Great Aunt agreed to transport the children for in-person visits and monitored telephone visits.
At a December 13, 2018 status review hearing, the juvenile court determined Mother had partially complied with the case plan and that continued jurisdiction was necessary. It ordered DCFS to find an alternative monitor for Mother's visits and that reunification services continue.
On December 20, 2018, Maternal Great Aunt reported that she had scheduled several monitored visits for Mother that month.
2. Second Status Review Period
On January 17, 2019, the social worker visited the children. S.H. said she tried "not to get excited" when Mother promised to visit as it was often a "lie," and that Mother called but "not that much." S.H. reported that she loved Mother and Maternal Great Aunt but knew she would "live with [her] aunt forever." S.H. stated, "Maybe hopefully one day my mom can live with us, but I want to live with my aunty forever." D.H. stated he did not care where he lived but was happy with Maternal Great Aunt. He noted Mother visited "sometimes" and that "I'm okay with that." The social worker observed G.D. was disruptive and hyper.
In February 2019, S.H. again expressed that she wanted to stay with Maternal Great Aunt forever but wished Mother could also live with them. S.H. noted she missed Mother, but that she was safe with Maternal Great Aunt. D.H. reported that he saw Mother at church but had not seen her otherwise. When asked how he felt about seeing Mother, he responded, "I don't care." When asked whether he was "okay" living with Maternal Great Aunt, he responded, "Yes. I'm safe." G.D. reported that Maternal Great Aunt was nice, that he had not seen Mother, and that he did not want to.
During a visit in March 2019, the social worker observed A.H. reach for Maternal Great Aunt, hug Maternal Great Aunt when picked up, and repeatedly call Maternal Great Aunt "mama." S.H. and D.H. continued to report they felt happy and safe with Maternal Great Aunt.
In April 2019, the social worker observed many members of the family were sick. S.H. stated that Mother did not know they were sick because she has not called or visited them.
On May 16, 2019, S.H. told the social worker that Mother often did not appear for scheduled visits and called about once a week. Because the children rarely spoke with Mother, the siblings fought with one another over the phone during calls. DCFS's May 29, 2019 status report reflected that Maternal Great Aunt continued to meet the children's needs.
G.D. was diagnosed with attention deficit hyperactivity disorder and reported to have temper tantrums. Maternal Great Aunt agreed to comply with all meetings and sessions necessary for G.D. to receive wraparound services.
The children's therapist reported that the children needed consistency from Mother. According to the children and Maternal Great Aunt, Mother did not visit often during this reporting period. She sometimes "show[ed] up" at Sunday church services that the children attended with Maternal Great Aunt, and the children were excited to see her there. Otherwise, however, Mother would often call to request a visit and then later cancel the visit due to "car problems."
DCFS reported the children's behavior "dramatically diminish[ed] after scattered interactions with [Mother]." In particular, D.H. became defiant towards told Maternal Great Aunt, and G.D. displayed tantrums when not given milk because Mother allowed him to have it although he is lactose intolerant. DCFS also reported that Mother failed to participate in drug tests since 2018, keep scheduled appointments with the social worker, or regularly participate in the court-ordered programs.
On June 11, 2019, the juvenile court ordered DCFS to provide a written visitation schedule, including telephone visits, and to facilitate Mother in obtaining a monitor for visits.
3. Third Status Review Period
In a last minute information (LMI) filed August 7, 2019, DCFS reported that since July 2019, Mother consistently attended weekly therapy. The children reported their visits with Mother were going very well. S.H. stated that she met D.H. and G.D.'s "father," J.M., during a visit with Mother at a restaurant. Mother took the children to the restroom while the monitor was in the play area. A tall man that they did not recognize then introduced himself to the children as their father. D.H. felt scared and confused. If the man was his father, D.H. wanted to get to know him; if not, he did not want strange men at their visits. J.M. denied arranging the visit with Mother. The court ordered a paternity test, which revealed J.M. was not D.H.'s or G.D.'s father.
Mother missed all 15 of the scheduled visits or calls between September 13, 2019, and November 1, 2019.
On December 3, 2019, the juvenile court granted Maternal Great Aunt's request for de facto parent status for all four children. It also found Mother's progress in the case plan "minimal" and not substantial, and terminated family reunification services to Mother.
On October 28 and 29, 2019, the juvenile court held a status review hearing, at which Mother testified. The record does not include a copy of the transcript for this hearing.
4. Fourth Status Review Period
Between mid-January 2020 and May 7, 2020, Mother participated in monitored biweekly telephone visits with the children. On May 7, 2020, Mother increased her monitored telephonic visits with the children to twice a week.
On May 5, 2020, the juvenile court continued the scheduled status hearing due to the Covid-19 pandemic.
On May 19, 2020, DCFS reported the three older children felt safe and loved in Maternal Great Aunt's care and were willing to be adopted by her. DCFS observed A.H. was very attached to Maternal Great Aunt, as expressed through hugs, kisses, and laughter.
According to an undated, updated case plan report, DCFS reported that Maternal Great Aunt was willing to adopt the children and that DCFS sought to keep the children together to maintain family ties. DCFS also reported Mother resumed her visitation with the children and appeared more committed to rebuilding their relationship.
On May 15, 2020, Mother agreed to participate in random drug tests. Mother missed all drug tests through September 10, 2020.
On June 15, 2020, Mother participated in an in-person monitored visit at a park with the children. Because D.H. was sick, he did not attend. Mother also participated in virtual visits twice a week. Mother requested additional in-person visits, but DCFS could not secure a monitor until September 9, 2020. On September 18, 2020, Mother completed a monitored in-person visit. The children observed that Mother was pregnant and felt "hurt" and "upset" that Mother was "starting a new family." The children expressed they did not want to have virtual visits with Mother twice a week, preferred visits once a week or every other week, and asked the social worker to cancel the visits so Mother did not get mad at them.
According to Maternal Great Aunt, the children had more arguments with one another, displayed increased defiance towards her, and reported repressed memories after their visits with Mother. G.D. told his therapist, "I don't know if I love my mom . . . I love my mom, but I love my auntie more." G.D. worried about returning to Mother's care and reported having imaginary friends who "distract" him from thinking about past trauma. A.H. sought reassurance that she could stay with Maternal Great Aunt. In November 2020, Maternal Great Aunt also reported that after visitation with Mother, A.H. pulled her hair out at school each day, D.H. had nightmares, hit his brother, and asked G.D. why Mother had him, and that G.D. wet himself and broke things that belonged to others.
DCFS reported Mother and the children participated in inperson visitation every Friday for two hours.
In December 2020, Mother gave birth to a son, D.J., who tested positive for tetrahydrocannabinol.
In February 2021, a juvenile court granted D.J.'s father sole legal and physical custody. Mother received supervised visitation. Mother's counsel claimed that Mother "gave up reunification with [D.J.] so she could focus on getting [S.H., D.H., G.D., and A.H.] back."
On December 7, 2020, the juvenile court acknowledged the children's behavioral issues following visits but determined continued visitation did not rise to the level of detriment and ordered visits to continue. The juvenile court scheduled a section 366.26 permanency planning hearing.
E. Permanency Planning Period
1. DCFS Reports, March to April 2021
On March 23, 2021, DCFS reported Mother had consistently participated in weekly virtual visits for the prior two months, with Mother missing only one to two visits.
On April 1, 2021, DCFS reported that S.H., D.H., and G.D. affirmed they would be happy for Maternal Great Aunt to adopt them. A.H. also expressed she felt safe, cared for, and loved with Maternal Great Aunt. DCFS concluded there were no barriers to adoption and recommended that the juvenile court proceed with the termination of parental rights.
2. Mother's First Section 388 Petition
On April 6, 2021, Mother filed a section 388 petition requesting that the juvenile court reinstate reunification services for her. She alleged the three older children were "closely bonded" to her and that she had "visited steadily even through the pandemic." In support of her petition, Mother attached letters from a counselor, case manager, and parenting class therapist attesting to Mother's participation in case-plan programs, her determination to be reunified with her children, and Mother's feelings that she was being "systemically defeat[ed]." Mother claimed she knew her "children want to be with their mother" because they tell her they love her, and they have good visits.
Between December 15, 2020, and April 28, 2021, Mother tested negative for substances six times, but was a "no show" for three tests. DCFS provided to the juvenile court Mother's drug program progress letter, which stated Mother "has been participating."
3. The Children's Relationship with Mother, May 2021
On May 10, 2021, D.H.'s therapist advised DCFS that D.H. “does not want to participate in virtual visits with his biological mother although he is not able to rationalize why. [D.H.] reports, ‘I just don't want to-and I shouldn't have to if I don't want to, right?' ” The therapist reported D.H. “often expresses confusion as to why he is being pressured to have a bond with [M]other if it is not something that he is interested in at this time.” DCFS reported D.H. often refused to participate in weekly virtual visits because he "does not feel like it."
A.H.'s therapist reported that after visits with Mother, A.H. "bec[ame] more aggressive in therapy[,] . . . less attentive, [and] refuse[d] to engage," and that this mirrored A.H.'s behavior during monitored visits with Mother during which A.H. would often pretend to ignore Mother, and tell Mother "no" and "I'm not going to listen to you." A.H. also told her therapist there is a monster, who A.H. described as "a crying baby," which was similar to a question A.H. often posed to Mother during monitored visits when A.H. would ask Mother "why is your baby crying?" The therapist observed that A.H. "has regressed since learning about the [newborn] baby," D.J.
On May 11, 2021, a DCFS investigator interviewed the children. G.D. stated he is happy living with Maternal Great Aunt and that she loves him. When asked if there was somewhere else he wanted to live, G.D. responded no. When asked who else loved him, G.D. identified Maternal Great Aunt. The investigator then asked about Mother. He stated they have not seen each other in person for a while, but they have phone calls with her. The calls are "great" and that he likes the call because they tell each other jokes. When asked if he ever thought about living with Mother, G.D. stated, "I would like to live with both[;] I like both."
D.H. told the investigator that he was happy living with Maternal Great Aunt. He also voluntarily asked, "can we stop the case?" He explained that he felt it was "annoying having all the social workers coming around," and that he "want[s] to stay with my aunt and visit my mom." He said, "I love my aunt[;] I've been with my aunt for so long[.] I'm comfortable here." "I love my mom, but I don't want to live with her." He also explained, "I would love to visit my mom over the phone and in person." He stated he wanted Maternal Great Aunt to adopt him.
S.H. told the investigator, "the case should just close," and "it is better for us to stay here and not to continue with the case. I know my mom will not like it[,] but it's better for us." S.H. explained she had been with Maternal Great Aunt most of her life and was comfortable and happy living with her. Even before the dependency matter started, the children were "not exactly with mom because we were back-and-forth between my grandmother, my aunt and my mother." "[W]e were just not around her enough." S.H. stated "it's a little late for [Mother] to want to get us back." "[W]e are used to this now, and she should have done this before." Crying, S.H. stated she did not share these feelings with Mother because she knows it would hurt Mother's feelings. S.H. loved her Mother and wanted to stay with Maternal Great Aunt. According to S.H., Maternal Great Aunt stated the children would "always have [Mother]," who Maternal Great Aunt would allow them to continue to see. S.H. expressed concern that Mother would not let S.H. and her siblings see Maternal Great Aunt who they have been with for most of their lives. S.H. stated she wanted Maternal Great Aunt to adopt them. She explained, "[W]e love her and she loves us." Maternal Great Aunt expressed that the children being in "limbo" was detrimental to them.
4. The Hearing for Mother's First Section 388 Petition
On May 26, 2021, the juvenile court denied Mother's section 388 petition without ordering an evidentiary hearing because it found Mother did not make a prima facie showing of a changed circumstance or that reinstating services were in the best interests of the children. The juvenile court observed Mother continued to struggle with the same substance abuse issues that brought her before the court in 2017.
In a July 7, 2021 walk-on request, Mother argued she was not properly informed of the random drug test scheduled on April 28, 2021, which Mother had missed and the juvenile court had referred to in denying her section 388 petition. Mother stated that since the May 26, 2021 hearing, Mother completed her drug program and "continued to test." DCFS reported Mother again failed to show for her drug test scheduled for June 11, 2021, and that Mother's inconsistent participation in the drug tests made it difficult to assess if Mother was "sober." On July 7, 2021, the juvenile court denied Mother's walk-on request.
5. Mother's Second Section 388 Petition
On July 27, 2021, Mother filed a second section 388 petition requesting that the juvenile court reinstate reunification services and order unmonitored visitation with the children. Mother stated she completed her case plan, including a full drug and alcohol rehabilitation program, tested negative for drugs on June 16, 2021, and that her relationship with Maternal Great Aunt had deteriorated. Mother claimed S.H. "does not want to be adopted," and D.H. and G.D. "are still not quite sure." Additionally, she claimed the children wanted to maintain visits with her "despite hostility . . . [and] systemic thwarting of her inperson visits."
6. DCFS Reports Relating to Mother's Visits and Relationship with the Children, July 2021 through October 2021
On July 20, 2021, DCFS reported Mother requested that the children come to visit her in Lancaster, California, but the children did not want to do so as the three-hour roundtrip would interfere with their educational and extracurricular activities. Mother continued to have virtual visitation with the children. DCFS reported that on July 15, 2021, the parties agreed to visitation in an indoor mall.
On July 27, 2021, Mother and the children participated in monitored visitation at a coffee shop. During the visit Mother left A.H. and G.D. unattended and the social worker had to run after them. While the social worker was preoccupied doing so, Mother told S.H. that if she were adopted, Mother would never see S.H. again. The visit was scheduled to last nine hours, but the children requested it end an hour early.
In an LMI filed on August 2, 2021, the social worker reported on July 19, 2021, interviews with the children. S.H. stated she met with her attorney that morning and that she believed the attorney was right that if Mother "did all her classes," Mother "deserves another chance." S.H. expressed concern that if she were adopted, she could not have visits with Mother. The social worker clarified that S.H. could still visit Mother if she were adopted, and S.H. responded, "Really? Oh! If I can still see her then, yes, definitely adoption." D.H. told the social worker, "There is no way I am getting in a car every week to have visits out [t]here." D.H. understood that he could still have visits with Mother post-adoption and stated his preference was "[f]or sure adoption." He also stated that he would "forget" that is what he said if Mother asked "so that no one gets sad." When asked about his preference between adoption and legal guardianship, G.D. stated, "I don't know." He stated he loved Maternal Great Aunt and he loved Mother. He had no objection to living with Maternal Great Aunt until he was a grown up and to visiting Mother "sometimes." A.H. expressed she wanted to live with Maternal Great Aunt "forever."
On August 3, 2021, the parties came before the juvenile court for Mother's section 388 petition. During the hearing, minors' counsel requested that no one discuss legal guardianship or adoption with the children as DCFS doing so had confused the children. Minors' counsel also stated that G.D. and A.H. want to live with Maternal Great Aunt and visit with Mother. The juvenile court agreed that the children "were given misinformation." The court ordered that no one discuss adoption or legal guardianship with the children outside the presence of the court, that a written visitation schedule be created, and that DCFS provide a report as to the frequency, quality, and duration of Mother's visits with the children.
On August 13, 2021, Mother's counsel requested to be relieved due to a conflict. On August 18, 2021, the juvenile court relieved Mother's counsel and appointed new counsel for Mother. It also ordered DCFS to provide make-up visits for Mother for all visits canceled by the DCFS social worker.
In August 2021, the children refused to participate in visits with Mother four times because they "d[id]n't feel like it," had something else they wanted to do, or stated they would see her the following week. DCFS also canceled three visits because Mother failed to confirm that she would attend. On August 12, 2021, the children and Mother had a four-hour visit at a mall. A.H. and G.D. ran away from Mother throughout the visit. On August 18, 2021, Mother and the children had a telephone visit that lasted less than an hour. On August 26, 2021, D.H. refused to get out of the car to visit Mother despite both Maternal Great Aunt and the social worker encouraging him to do so. He stated, "it's a waste of my time." During that visit, Mother typed notes on her phone that she showed to S.H., ignored G.D.'s repeated requests to play, and paid little attention to A.H. G.D. and A.H. acted out and ran far away from Mother during the visit. A.H. also threw herself on the floor and when S.H. went to pick A.H. up, Mother told S.H. to "leave [her] there." Mother requested that A.H. be picked up early. S.H. overheard the request and asked to leave early too. Mother confronted the children, and all the children confirmed they wanted to leave early. The visit concluded after two and a half hours.
On September 2, 2021, D.H. refused to get into the car to travel to a visit with Mother. D.H. eventually got in the car, but refused to get out, even to greet Mother. Mother had a good visit with the remaining children at an arcade, although everyone asked to end the visit an hour early. On September 9, 2021, the children refused to visit with Mother. On September 14, 2021, Mother had a visit with all four children for dinner and a movie. However, after A.H. became upset when Mother tried to place her in time out, Mother insisted all the children leave the theater and that the visit end early. G.D. asked why they all had to leave. D.H. stated, "I knew I shouldn't have come[.] [T]his is so stupid." As Mother carried A.H. out of the theater, A.H. kicked, hit, and slapped Mother. A.H. ran away from Mother into the street, and when Mother lifted A.H., A.H. slapped Mother in the face. The children agreed they had never seen A.H. behave that way or hit an adult. On September 21 and 23, 2021, the children refused to visit Mother. Mother and the children agreed to split their visits so that two children would visit at a time. On September 28, 2021, Mother visited with A.H. and D.H. and the quality of the visit improved. On October 1, 2021, the children cancelled the visit.
On October 6, 2021, a DCFS investigator filed a response to Mother's section 388 petition. The investigator reported that if Maternal Great Aunt adopted the children, she would not be against Mother having a relationship with them, but Maternal Great Aunt stated, "much of that depends on [M]other's behavior." The investigator also interviewed maternal grandmother. She believed it was in the children's best interests to remain with Maternal Great Aunt, with whom the children had developed a very strong bond, and that returning the children to Mother would only cause them significant emotional trauma. D.H.'s school psychologist told the investigator D.H. enjoyed visits with Mother, but less so on weeknights because he was tired from school and had "flat feet," which made it difficult for him to walk around as much as they did. D.H. indicated he would prefer to visit Mother a couple of days at a time, but did not want to live with her, he only wanted to visit. The investigator also reported that Mother's sister R.W. stated Maternal Great Aunt was manipulating the children to say that they want to stay with her.
On October 12, 2021, Mother and the children participated in a good, virtual visit. On October 14, 2021, S.H. and G.D. had an in-person visit with Mother. During the visit, S.H. spent a large amount of time on Mother's phone. On October 19, 2021, the children participated in a virtual visit with Mother. On October 21, 2021, the children refused to visit Mother.
On October 26, 2021, DCFS reported that Mother's sister R.W. clarified her prior statement. R.W. stated Mother pressured her to state that Maternal Great Aunt coached and manipulated the children, but R.W. never actually heard Maternal Great Aunt do so. R.W. also stated that S.H. disclosed that Mother engaged in a ruse of asking S.H. if she wanted to play games on her cell phone, but then used it as an opportunity to share secret messages that conveyed if S.H. is adopted, Mother would never see her.
Maternal Great Aunt also reported that Mother had been secretly giving notes to S.H. during visits. One note stated S.H. was being "play[ed]" and used for money, that the children are Mother's reason for living, and "[i]f you do not tell these people in court you want to be with your mom[,] [t]hese last few weeks may be our last time seeing each other."
7. Permanency Planning Hearing
On November 2, 2021, Mother withdrew her section 388 petition. The parties thereafter presented arguments relating to permanency planning. Before we discuss those arguments, we provide an overview of the relevant law.
a. Applicable Legal Principles
When a juvenile court cannot safely return a child to a parent's custody, the court must set a permanency planning hearing under section 366.26. (Caden C., supra, 11 Cal.5th at p. 630.)"' "[A]t a section 366.26 hearing, the court may select one of three alternative permanency plans for the dependent child-adoption, guardianship or long-term foster care." [Citation.] At this stage of the dependency proceedings, adoption is preferred because it ensures permanency and stability for the minors. [Citations.]' [Citation.] Thus, as a general rule, at a section 366.26 hearing, if the trial court finds that the child is adoptable, it must select adoption as the permanent plan and terminate parental rights. (§ 366.26, subds. (b)(1) &(c)(1).)" (In re L.A.-O. (2021) 73 Cal.App.5th 197, 205-206; see Caden C., supra, at p. 631 [under § 366.26, adoption is "the norm"].)
Section 366.26, subdivision (c) states several exceptions to this rule. Relevant here, the beneficial relationship exception applies if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [¶] . . . [t]he parents hav[ing] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
Approximately six months before the permanency planning hearing in this case, our Supreme Court issued Caden C., which clarified a parent must prove three elements for the beneficial relationship exception to apply. (Caden C., supra, 11 Cal.5th at p. 631.) Specifically, a parent must show by a preponderance of the evidence that (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." (Id. at p. 636.)
During argument, county counsel described the three Caden C. elements Mother must establish for the beneficial relationship exception to apply.
When the parent has met that burden, "it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Caden C., supra, 11 Cal.5th at pp. 636-637.) "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.) "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." (Ibid.)
b. The Juvenile Court's Decision
At the permanency planning hearing, Mother argued for application of the beneficial relationship exception, and that the court not order adoption but instead a plan of legal guardianship. Both DCFS and counsel for the children requested the court terminate Mother's parental rights without exception and approve the children's adoption by Maternal Great Aunt.
In ruling, the juvenile court determined the beneficial relationship exception did not apply. It stated, "There is a number of things in a [section 366.26, subdivision] (c)(1)(B)([i]) exception, and as stated appropriately, it is Mother's burden here today to meet that exception. It requires a parent to occupy a parental role, which [Mother] does not. She still is in a monitored visitation setting as of four years later. While she may have completed some of her programs this year, she did give birth to a baby drug-exposed in December of last year, which is one of the reasons why this case came before the court. And [Mother] has-yet still denies that she had used any substances or why the child showed positive for marijuana. So Mother, you know, she's not occupying a parental role. She's visiting the kids, having fun with the kids when they actually have a visit. As indicated by [minors' counsel], the kids don't cry when they're leaving [M]other at the end of the visits. Sometimes the visits are cut short by their request, and there's no-I saw no indication the children were asking to actually have a visit outside of what's been provided with [M]other, an indication that they do not see her in the parental role to help them with any of their life issues...."
"Mother's description of a parental role and saying that it was best for the kids prior to living with the de facto parent and then spending some time with her as being appropriate for the children .... That is not in the kids' best interest either. I agree, they've got to be tired.... My duty as the bench officer is [to] look for the best interest of the children today and towards permanency. And only if the burden has been overcome as to the [section 366.26, subdivision] (c)(1)(B)([i]) exception should I deny the assessment for adoption.... [The children] do all want to be adopted. They would like to see their mother. I cannot find that the children would be greatly harmed if I severed [Mother]'s parental rights today. It is not in the best interest of the children to maintain a legal guardianship which would keep the court involved and social workers involved in their lives for an extended period of time. Not only that, but the kids deserve permanence, that they know what's going to be happening on a daily basis. The kids have expressed that they like seeing their mom, sometimes anyway, not all the time .... So it is not in the best interest of the children that the [section 366.26, subdivision] (c)(1)(B)([i]) exception applies, and it does not apply as [Mother] does not occupy a parental role and there is no great harm to the children if parental rights were severed."
8. Mother Appeals
On June 22, 2021, Mother filed a notice of appeal relating to the juvenile court's May 26, 2021, denial of her first section 388 petition. On November 15, 2021, Mother filed a notice of appeal from the order terminating parental rights. On August 29, 2022, we consolidated the appeals for the purpose of briefing, oral argument, and decision.
Mother's briefs do not include any arguments relating to the denial of her section 388 petition, and we treat the appeal from that order as forfeited. (See In re A.C. (2017) 13 Cal.App.5th 661, 672 [" 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived' "].)
DISCUSSION
A. Standard of Review
As noted above, under Caden C., supra, 11 Cal.5th at p. 631, for the beneficial relationship exception to apply a parent must show by a preponderance of the evidence that (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." (Id. at p. 636.) We review the first two elements or prongs of the test for substantial evidence and the third for an abuse of discretion. (Id. at pp. 639-640.)
B. Analysis
Mother concedes that the evidence did not establish a beneficial relationship with A.H. and, thus, does not contest the juvenile court's ruling as to that child. Mother argues the trial court erred in finding the parental benefit exception did not apply to her termination of parental rights as to S.H., D.H., and G.D.
Neither party addresses that if Mother were to prevail on this appeal, A.H.'s permanency plan may be different than that of her three older siblings and the effects, if any, that may have on the children who have lived with A.H. since her birth.
1. The Juvenile Court's Error
We begin by analyzing the second element of the Caden C. test, as we find that dispositive here. Caden C. explained that "[a]s to the second element, courts assess whether 'the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (Caden C., supra, 11 Cal.5th at p. 632.) To satisfy this element, a parent must show "something more than the incidental benefit a child gains from any amount of positive contact with [his or] her natural parent." (In re Katherine J. (2022) 75 Cal.App.5th 303, 318.) The parent must show that he or she is more than "a mere 'friendly visitor.'" (Id. at p. 319.) Indeed, "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." (Caden C., supra, at p. 636.) "[T]he 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.'" (Id. at p. 632, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Courts may also "consider how children feel about, interact with, look to, or talk about their parents." (Caden C., supra, at p. 632.)
In Caden C., our high court did not expressly address whether a juvenile court may consider if a parent occupies a parental role in determining whether the beneficial relationship exception applies. However, we discern several guiding principles from Caden C. relevant to this question. First, "rarely do '[p]arent-child relationships' conform to an entirely consistent pattern" and the type of relationship necessary to establish the exception is not narrowly defined. (Caden C., supra, 11 Cal.5th at p. 632.) Second, "[a] parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the exception." (Id. at p. 637.) Indeed, "[t]he parental-benefit exception can . . . only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency." (Ibid.) "[T]he 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?" (Id. at p. 638.) Third, a parent's relative attributes as a custodial caregiver weighed against those of the prospective adoptive parent are irrelevant to the beneficial relationship exception. (Id. at p. 634.)
As other courts have recognized, the phrase "parental role," standing alone, can have several different meanings, some of which are legally correct under Caden C., and some which are not. (See In re L.A.-O., supra, 73 Cal.App.5th at pp. 210-211 [describing the difficulty in understanding what a court means when it uses the phrase "parental role"]; In re J.D. (2021) 69 Cal.App.5th 594, 625 [remanding upon finding, "Here . . . we cannot be sure whether the juvenile court's determination that [the] mother did not occupy a 'parental' role encompassed factors that Caden C. deems irrelevant"]; see also In re Katherine J., supra, 75 Cal.App.5th 303 [holding the juvenile court's statement that the father did not occupy a parental role was not error where the court explained his unresolved issues with substance abuse and violence destabilized his child and compromised their ability to maintain a strong, positive emotional attachment]; In re D.M. (2021) 71 Cal.App.5th 261 [holding the juvenile court prejudicially erred when it equated a parental role with attendance at the children's medical appointment and understanding their medical needs].)
Here, we conclude the juvenile court erred in considering a factor that is impermissible under Caden C. After stating the beneficial relationship exception requires Mother to occupy a parental role and that she did not, the juvenile court described that Mother did not overcome the substance abuse issues that led to dependency in the first place, and bookended its statement with, "So Mother, you know, she's not occupying a parental role." This suggests the juvenile court used the phrase "parental role" to refer to Mother's ability to act as a custodial caregiver, a consideration Caden C. rejected. (See Caden C., supra, 11 Cal.5th at pp. 634, 637.)
2. Harmless Error Analysis
We conclude this error was harmless, however, because it is not reasonably probable the result would have been more favorable to Mother if the court had applied the correct legal standard under Caden C. Reversal of a dependency matter is warranted only if it is reasonably probable the result would have been more favorable to the appellant but for the error. (In re Celine R. (2003) 31 Cal.4th 45, 60.) A juvenile court's error "is amenable to harmless error analysis" where determining prejudice does not "require 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (In re James F. (2008) 42 Cal.4th 901, 915.)
The harmless error analysis in this case requires no speculation. The evidence in the record before us is insufficient as a matter of law to establish a substantial, positive, emotional attachment between Mother and the children. The record demonstrates that from an early age, each child spent most of their lives not in Mother's custody. The children resided with Maternal Great Aunt even before DCFS initiated the dependency proceedings at issue here. As S.H. described, the children were "not exactly with [Mother] because [they] were back-and-forth between [their] grandmother, [Maternal Great Aunt], and [M]other." "[W]e were just not around [Mother] enough."
Mother argues she could carry her burden to prove this element because the children maintained that they wanted to continue to see her even if they were adopted and because they stated that they loved her. But the children's occasional statements that they loved their Mother and wanted to continue to see her are insufficient to establish a substantial, positive, emotional relationship. (See In re Katherine J., supra, 75 Cal.App.5th at p. 319 [observing the parent must be more than a friendly visitor].) And, rather than bolster Mother's argument, the other facts in the record contradict her position.
After interactions with Mother, the children's behavior dramatically diminished, including D.H. having nightmares and behaving hostilely towards his brother, and G.D. wetting himself and breaking things that belonged to others. In January and February 2019, the children began to behave defensively in response to Mother's inconsistent contact with them. S.H. tried not to get her hopes up when Mother promised to visit because it was often a "lie." When asked how he felt about seeing Mother, D.H. replied, "I don't care." G.D. stated he had not seen Mother and did not want to.
Thereafter, the children began to display increased indifference to and avoidance of visitation with Mother that continued and even escalated throughout the remainder of the proceedings. In or about the summer of 2020, the children sought to reduce the frequency of their virtual visits with Mother. Then, during the period August 2021 through October 2021, the children refused to attend nine visits and sought to cut several visits short. In May 2021, D.H.'s therapist reported D.H. did not want to have virtual visits or be forced to bond with Mother. D.H. refused to participate in virtual visits because he "did not feel like it." Notwithstanding a statement to a DCFS investigator that he loved Mother and wanted to visit her, in August and September 2021, D.H. twice traveled in the car to see Mother and refused to get out the car to interact with her, stating it was "a waste of [his] time."
G.D., the youngest of the three children, struggled with equivocal feelings about Mother, demonstrating something less than a "substantial, . . . emotional relationship" with her. In 2020, he stated he did not know if he loved Mother and worried about being returned to her care. When asked whether there was someone other than Maternal Great Aunt who loved him, G.D. did not identify Mother. On more than one occasion, G.D. skipped visits with Mother because he preferred instead to stay after school. On August 12, 2021, G.D. ran away from Mother throughout a visit at a mall. S.H. told a DCFS investigator she wanted the case to be over, and "it is better for us to stay here [with Maternal Great Aunt] and not to continue with the case."
Nor do the children's statements that they love Mother, standing alone and without more, demonstrate a positive emotional relationship with her. Indeed, on more than one occasion, interactions with Mother had a negative impact on the children, which manifested as defiant or angry behaviors. The children's therapist reported the children felt confused or emotionally unsettled due to Mother's inconsistencies and their interactions with her. Additionally, during several visits in 2021, Mother focused much of her attention on interacting with S.H. to the exclusion of the other children (which caused G.D. and A.H. to act out). The record does not reveal that those interactions were positive. To the contrary, during those interactions, Mother repeatedly pressured and attempted to manipulate S.H. to choose Mother over Maternal Great Aunt notwithstanding the emotional strain it would place on S.H.
Accordingly, there is insufficient evidence in the record as a matter of law to support the second element of the Caden C. test, which is a factual and not discretionary matter. In light of Mother's failure of proof, the juvenile court's error was harmless.
DISPOSITION
The juvenile court's orders terminating Mother's parental rights to S.H., D.H., and G.D. are affirmed.
We concur: ROTHSCHILD, P. J., CHANEY, J.