Opinion
B312201
03-22-2022
In re GINA M., a Person Coming Under the Juvenile Court Law. v. JONATHAN M. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Jonathan M. Linda B. Puertas, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19CCJP02474A. Jean M. Nelson, Judge. Affirmed in part and dismissed in part.
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Jonathan M.
Linda B. Puertas, under appointment by the Court of Appeal, for Defendant and Appellant D.W.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jonathan M. (father) and D.W. (mother) appeal from the juvenile court's order terminating their parental rights to Gina M. (Gina, born Jan. 2013) pursuant to Welfare and Institutions Code section 366.26. Relying heavily upon In re Caden C. (2021) 11 Cal.5th 614, father contends that the juvenile court erred in not applying the parent-child beneficial exception to adoption and not properly obtaining Gina's input regarding adoption. Mother's appellate counsel filed an opening brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, finding no arguable issues.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm the order terminating parental rights and dismiss mother's appeal pursuant to In re Sade C. (1996) 13 Cal.4th 952, 994, because mother did not raise any arguable issues on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Referral
As set forth in the detention report, on March 18, 2019, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that then six-year-old Gina was at risk of general neglect and emotional harm. According to the referral, Gina's mother had kicked father and Gina out of their motel room and dropped them off at a grocery store in Pasadena. Father and Gina went to the paternal aunt's home until mother picked father up at 4:00 a.m. Gina remained in her paternal grandmother's home.
A DCFS Children's Social Worker (CSW) went to the paternal grandmother's home on March 20, 2019, and spoke with Gina. During the interview, Gina disclosed that mother would hit her with her hands, as well as with hangers, belts, or spoons. Gina also stated the mother would hit and kick father. When the parents fought, Gina would cry and yell at them to stop. Gina stated that her parents fought every day and reiterated that it was mother who hit father.
Regarding substance abuse, Gina stated that her parents smoked "'blunts.'" She denied that they smoked in her presence, explaining that she once could not breathe and had a panic attack from the smoke. Mother and father now smoked marijuana in the car while Gina remained in the family's motel room.
When asked what the CSW could do to assist her family, Gina replied, "'[C]an you make them [mother and father] stop fighting?'"
The paternal grandmother confirmed that mother would hit father and said that father regularly had bruises and scratches on his arms. The paternal grandmother also had seen bite marks on father's chest, said the parents fought every day, and that father previously had called law enforcement due to the mother's physical abuse. She also expressed concerns about Gina not getting regular medical and dental treatment and not being vaccinated.
The paternal grandmother confirmed that the parents smoked marijuana excessively. She explained that when Gina would visit, the child's hair and clothes would smell like marijuana.
During the CSW's interview, the paternal aunt arrived and also expressed concerns about Gina. The paternal aunt said that the parents were always fighting and smoking marijuana.
The CSW subsequently called the parents multiple times in March and April but was unable to reach them.
On April 17, 2019, father contacted the CSW to discuss the referral allegations. He said that he and mother argued, but denied that their fights were physical in nature. He also denied any drug or alcohol use and represented that Gina was current on her medical and dental appointments. Father denied the mother ever physically abused Gina; he said he would not allow that to happen.
Regarding Gina's disclosures, father said that Gina had a "'big imagination'" and "'tells stories sometimes.'"
At some point, mother also spoke with the CSW and denied physically disciplining Gina, denied hitting father, and denied any drug use. She accused the paternal grandmother of being a liar.
Section 300 Petition
On April 19, 2019, DCFS filed a section 300 petition on behalf of Gina, due to the parents' history of engaging in violent altercations in Gina's presence, mother's physical abuse of the child and father's failure to protect Gina, and the parents' respective substance abuse issues.
Detention Hearing
At the April 22, 2019, detention hearing, the juvenile court found a prima facie case that Gina was a child described by section 300 and detained her from her parents' custody. DCFS placed Gina in the home of her paternal aunt.
Jurisdiction/Disposition Report
Gina reported that father would leave the room any time he made the mother mad, that the mother only hit her on her hands with a spoon and no other objects, and denied knowing what drugs were.
Mother denied she physically abused Gina or that she and father abused substances. Father, likewise, denied the allegations, including that mother kicked him and Gina out of the family's motel room and abandoned them at a grocery store. He claimed that he called the paternal aunt because he was feeling lonely and his sister misunderstood him. Father denied ever seeing mother hit Gina and denied that mother abused any substances.
The parents separately visited Gina at a DCFS office on April 30, 2019.
Jurisdiction/Disposition Hearing
At the May 13, 2019, jurisdiction/disposition hearing, the juvenile court heard argument from counsel and found that DCFS had met its burden as to all of the counts in the section 300 petition. The juvenile court further found that Gina's initial statements about the parents' domestic violence, including how the parents' fighting made her feel, were detailed and consistent with the paternal grandmother's and paternal aunt's statements. It also found Gina credible regarding her statements of mother's physical abuse and concluded that the parents' marijuana use interfered with their parenting. Thus, it sustained the section 300 petition.
Gina's counsel then asked the juvenile court to admonish the parents regarding their telephonic contacts with the child. Counsel stated that Gina's relatives could overhear the parents telling Gina not to listen to the relatives and not to speak with anyone who came to the home. Counsel noted that this had been a concern since the child's detention, as it appeared that the parents had coached Gina and caused the child to change her statements.
Father's counsel requested a written visitation schedule and informed the juvenile court that he had had one visit with Gina and was concerned that his family would prevent further visits. In accordance with father's request, the juvenile court ordered a written visitation schedule for the parents and allowed them to provide their own monitors for visits.
The dispositional hearing was continued to August 13, 2019.
Last Minute Information for the Court
On August 12, 2019, DCFS reported father had missed all 11 of his drug-testing appointments from May 20 through July 30, 2019. DCFS also reported father had not visited Gina since May 16, 2019, due to scheduling conflicts between the parents and the visitation monitor. To resolve this conflict, DCFS contacted father and scheduled a meeting for August 14 to finalize a visitation schedule. DCFS determined father would visit Gina every Tuesday from 3:00 p.m. to 5:00 p.m.
DCFS also developed a case plan for father requiring him to drug test, attend parenting classes and domestic violence counseling, and participate in individual and conjoint counseling.
Continued Dispositional Hearing
At the August 13, 2019, dispositional hearing, the juvenile court declared Gina a dependent of the court and removed her from the parents' custody. It ordered family reunification services for the parents consistent with their case plans. It further ordered monitored visits for the parents with the condition that the parents were not to visit together.
Ex Parte Application for Gina to Receive Immunizations
In September 2019, the paternal aunt informed DCFS that Gina's school district required proof of Gina's immunizations. When the CSW spoke to the parents, they both reported they did not want Gina to receive her immunizations. Father stated that he did not want Gina to be poisoned with the chemicals that the government puts in vaccines.
DCFS filed a petition in the juvenile court asking the juvenile court to authorize necessary immunizations for Gina. Over the parents' objections, the juvenile court authorized medical treatment for immunizations of Gina on September 26, 2019.
Status Review Report (Feb. 11, 2020)
The following day, Gina was replaced in the home of the maternal aunt due to conflicts between the paternal aunt and mother. DCFS noted the paternal grandmother also had expressed interest in having Gina placed with her but did not qualify for emergency placement.
DCFS subsequently reported that while in the paternal aunt's home, Gina was attending school, seeing a therapist at Pacific Clinics, and receiving appropriate medical and dental care. After being moved, the maternal aunt had not enrolled Gina in school or therapy, and had not followed-up on Gina's immunizations. The maternal aunt also did not contact the Resource Family Approval (RFA) CSW and her RFA application was closed. DCFS, therefore, replaced Gina with her paternal grandmother on January 27, 2020.
Regarding father's court-ordered services, DCFS noted father had not enrolled in classes or counseling and had tested positive for marijuana three times. The CSW had not been able to reach father to speak with him about visitation but Gina and the maternal aunt reported that visits had taken place in a park and were going well.
Supplemental Report
In September 2020, DCFS reported that Gina remained placed in the home of the paternal grandmother. She was doing well in her placement but expressed fears over mother's expectations for her to lie to DCFS and make up allegations against the paternal grandmother. Gina stated that she understood it was important to be honest and not lie because mother tells her to do so. Gina did not want to speak with mother on the telephone.
Meanwhile, the parents had both been arrested in September 2019; mother subsequently failed to appear for her criminal court hearing, and her bond exoneration period had expired. The manager from House of Bail Bonds contacted DCFS in an effort to locate mother. He also reported the mother's family members were not cooperating by providing him with the mother's address or whereabouts.
DCFS additionally reported that father appeared to be aligned with mother. He had not yet disclosed his address or living situation to DCFS. He also blamed DCFS and his family for the juvenile court's involvement and Gina's placement with the paternal grandmother. DCFS was concerned that father continued to be manipulated by mother, including father getting involved in the incident that led to the parents' arrest.
Between March 4 and August 3, 2020, father missed all 11 drug-testing appointments. He had not yet started counseling, but he had enrolled in an online parenting class on August 20, 2020.
The paternal grandmother indicated that father was visiting Gina on Saturdays for four hours. She reported that father only missed visits if he were sick or had to work. During visits, father would encourage Gina to listen to the paternal grandmother, tell the truth, and do well in school.
DCFS recommended that the juvenile court terminate the parents' family reunification services.
DCFS's Delivered Service Logs/Title XXs
On May 15, 2020, the CSW completed a video call with Gina and the paternal grandmother. Gina stated that she had spoken with her parents and wanted to have visits with them. The paternal grandmother believed that mother was coaching Gina and the child did not want to say anything bad about mother. The paternal grandmother reported that Gina would sometimes get upset and try to hit her. Gina would say, "'my mommy does it so why can't I?'" The paternal grandmother believed that father was codependent on mother.
The CSW spoke with father a few days later. He reported that he did not attend the last hearing in February 2020, did not know that his assigned CSW had changed, and had been leaving messages for the previous CSW. He was agreeable to establishing a visitation schedule and said that he was available on Saturdays and Sundays. Father apologized to the CSW and said that he had been trying to "get on his feet." He denied any contact with mother. After their conversation, the CSW e-mailed father with a list of referrals and resources.
In June 2020, the paternal grandmother reported that father was calling Gina twice a week, sometimes once a week. Gina told the CSW she wanted to live with father if she had a choice. Mother continued to tell Gina not to trust the CSW or the paternal grandmother.
During a visit in July (father's fourth visit with Gina since she had been placed with the paternal grandmother), Gina and father went to the mall. There was an incident where Gina yelled at father and father told her that she could not treat people that way. He also told Gina to "'stop acting like mom.'" Father also raised his voice and told Gina to shut up. The paternal grandmother had to intervene.
That same month, father informed the CSW that he remained homeless, was staying with friends, and did not want to disclose where he was staying to DCFS. When discussing the concerns that brought his family under the jurisdiction of the juvenile court, father explained that there was DCFS's truth and his truth and described the dependency process as an obstacle created by the government.
The CSW expressed concerns that father was minimizing the concerns pertaining to the family.
Review Hearing (§ 366.21)
On September 16, 2020, the juvenile court terminated the parents' family reunification services and set a permanency planning hearing for Gina.
Section 366.26 Report
In its January 13, 2021, report, DCFS noted that Gina remained placed with the paternal grandmother. The DCFS dependency investigator (DI) reported that Gina's placement was safe and appropriate, and that the child appeared comfortable in the home. Gina told the DI that she wanted to stay with the paternal grandmother if she could not return to father.
The DI further reported that both parents were inconsistent with visits. Even though father knew how to contact DCFS to arrange visits, he did not do so until Gina was placed with the paternal grandmother (in Jan. 2020). Thereafter, he visited the child once a week. The visits stopped for a period of one or two months due to father's work schedule and Gina rehearsing for the Nutcracker. Father was only available at night, so they had FaceTime visits. Father and Gina had an in-person visit again on December 3, 2020.
Gina reported she had anxiety about visiting with mother and did not want to do so.
DCFS assessed that Gina had formed a strong emotional bond and attachment to the paternal grandmother. Gina's parents continued to engage in an inappropriate relationship with one another. The benefits of Gina maintaining her relationship with the parents were outweighed by the benefits she would receive through adoption. The paternal grandmother expressed a willingness to adopt Gina if the child were not reunited with her parents.
Status Review Report
On March 17, 2021, DCFS continued to report that Gina remained fearful of being returned to mother's custody. Gina was concerned the mother would kidnap her and was adamant she did not want to return to mother's custody. She further disclosed that mother would call father, who would then call Gina. According to the child, father would yell and it would "'freak[] her out'" and scare her.
Last Minute Information for the Court
On April 30, 2021, DCFS provided additional information regarding Gina's telephonic contacts with father. Gina said father would call her and ask, "'Why are you telling the social worker things that happened in the past and [you're] not supposed to say those things.'" Father would also tell Gina that she should go back with mother.
Gina told the CSW that she would be happy if she no longer saw or spoke to mother. The paternal grandmother also observed that Gina was triggered by mother's telephone calls. She also reported that father had used his telephone calls to question Gina about the case and defend mother, which further triggered Gina. Gina also told the CSW that she liked talking to father on the telephone but did not like it when he would bring up mother. Gina said that father talking about mother made her "'very angry.'"
Gina's therapist, Patricia Calbay, disclosed that Gina had opened up about her trauma and the paternal grandmother appropriately validated and supported the child. Ms. Calbay confirmed that father talking to Gina about mother triggered the child.
Father informed the CSW that he did not know how Gina felt and did not understand why the child had so much animosity towards mother because Gina was never abused. Father also said that he had apologized to Gina for not protecting her.
DCFS recommended the juvenile court terminate parental rights over Gina.
Section 366.26 Hearing
On April 30, 2021, mother testified about her in-person visits with Gina, the reasons why in-person visits ceased, her issues with the paternal grandmother being Gina's caregiver, and her bond with Gina.
Father testified that he tried to visit Gina as often as possible; DCFS had recently terminated his monitored visits but father had found a new monitor and was waiting for DCFS to approve his monitor. Father said that he tried to visit Gina every other Sunday. He would also call Gina as often as he could, "almost every day." He stated that Gina would get ecstatic and was happy to see him at visits; she would hug him and tell him she missed him. At the end of visits, Gina would not want to leave. Father stated that he would talk to Gina, see how she was doing, ask her about school, and try to get to know her as a person. According to father, Gina was calm, relaxed, and did not worry when she was around him. Father asked the juvenile court to "put us back on track for family reunification."
The juvenile court then heard argument from counsel. Mother's counsel asked the court to apply the parent-child beneficial relationship exception to adoption.
Father's counsel stated that the juvenile court could not "treat the parents as a package deal with regard to the [ ] exception [to adoption]." He argued that father's visits with Gina had been regular and consistent. Per father's testimony, he tried to visit every other week and regularly called Gina. Counsel argued that father's ongoing contact with Gina "conferred a parental role and relationship." Counsel stated father's relationship had a positive impact on Gina and termination of the relationship would be detrimental to the child.
At the continued section 366.26 hearing, Gina's counsel acknowledged that, to some degree, Gina would be harmed by termination of parental rights vis-à-vis father. Gina had expressed wanting to be adopted and wanting to live with father. Counsel addressed the benefit of an ongoing relationship with father and the benefits of adoption, particularly in light of a guardianship order meaning continued exposure to mother's contacts and her efforts to visit and reunify with Gina.
Regarding the first prong of the parent-child beneficial relationship exception to adoption, Gina's counsel argued that father had not regularly visited the child; he had not regularly visited Gina until she was placed in her paternal grandmother's home. Thereafter, father's visits were not "necessarily consistent" in part due to father's work schedule. Regarding father's relationship with Gina, counsel noted that father did not step up to seek custody of Gina when mother was struggling with her case plan, did not seek physical custody of the child, and still was not doing so. Counsel described father as a friendly visitor.
DCFS's counsel joined in the arguments of Gina's counsel and added that father did not protect Gina from mother and continued to bring mother up during visits with Gina. Counsel suggested that father put mother before Gina and father continued to wonder why everyone was against mother. Counsel also noted that Gina was placed with the paternal grandmother and father could have visited more frequently than once every other week.
After entertaining oral argument, the juvenile court terminated parental rights over Gina, stating that the parents had not met their burden of proof for the "parental bond," which the juvenile court described only as "quite a high burden of proof." It explained that neither parent was consistent with visits. Specifically as to father, the juvenile court observed that father was inconsistent during key periods-one being when Gina was placed with her paternal aunt and was exposed to further trauma. It discussed the parents' failure to make progress with their case plans, noting that their lack of progress resulted in their failure to understand the harm they had caused to Gina and the family's ongoing struggles. It further found that the parental bond was not a healthy, strong bond and did not outweigh the benefits of adoption.
Ultimately, the juvenile court terminated parental rights over Gina.
Notices of Appeal
The parents' timely appeals ensued.
DISCUSSION
Father's Appeal
I. Relevant law
At a section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for the dependent child. (In re J.D. (2021) 70 Cal.App.5th 833, 851.) The stated purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the child is likely to be adopted, which is undisputed here, adoption is the preferred permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
Once a finding of adoptability is made, the juvenile court "shall terminate parental rights and order the child placed for adoption" unless one of the statutory exceptions to the preference for adoption is met. (§ 366.26, subds. (c)(1), (c)(1)(A) & (B)(i)-(vi).) At issue here is the parent-child beneficial relationship exception, which requires a parent to establish, by a preponderance of the evidence, that he or she 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." (In re Caden C., supra, 11 Cal.5th at pp. 629-630.) The parent must therefore prove three elements: "(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 re Caden C., supra, at p. 631; see also In re J.D., supra, 70 Cal.App.5th at p. 852.) "[I]n 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." (In re Caden C., supra, at p. 632.) "By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Ibid.)
The parent asserting the parent-child beneficial relationship exception bears the burden of establishing it. (In re Caden C., supra, 11 Cal.5th at pp. 636-637.)
II. Standards of review
The substantial evidence standard of review applies to the first two elements of the parent-child beneficial relationship exception-whether the parent has visited and maintained contact with the child consistently and whether the relationship is such that the child would benefit from continuing it. (In re Caden C., supra, 11 Cal.5th at pp. 639-640.) In doing so, we resolve all conflicts in favor of the prevailing party. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) If an appellate court concludes that the record contains substantial evidence- controverted or not-to support the order, it must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
"The question whether termination of parental rights would be detrimental to the child, however, is more nuanced." (In re J.D., supra, 70 Cal.App.5th at p. 853.) While the juvenile court's weighing of the relative harms and benefits of terminating parental rights reflects a balancing of certain factual determinations, its ultimate decision is reviewed for abuse of discretion. (Ibid., citing In re Caden C., supra, 11 Cal.5th at pp. 640-641.) In other words, our Supreme Court announced a "hybrid" standard of review, which "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." (In re Caden C., supra, at p. 641; see also In re J.D., supra, at p. 853.)
III. Analysis
A. Regular visitation and contact
Substantial evidence supports the juvenile court's finding that father failed to maintain regular and consistent visitation with Gina. Following Gina's detention, the parents separately visited the child at a DCFS office on April 30, 2019. At the May 13, 2019, jurisdiction hearing, father's counsel requested a written visitation schedule and confirmed that father had had one visit with Gina.
Subsequently, father had an additional visit with Gina on May 16, 2019. He then did not visit the child for two months, due to scheduling conflicts between the parents and Gina's caregiver. In sum, during the approximate first four months of the underlying dependency case, father visited Gina twice.
In August 2019, DCFS created a visitation schedule establishing weekly visits between father and Gina. The CSW was unable to speak with father about his visits, but Gina and the maternal aunt with whom Gina was placed reported visits took place in a park and were going well.
DCFS replaced Gina in the home of the paternal grandmother in January 2020. Thereafter, father's visits with Gina became sporadic. Father spoke with the CSW in May 2020 and indicated that he was agreeable to establishing a new visitation schedule and said he was available on Saturdays and Sundays. Father also apologized to the CSW and said that he had been trying to "get on his feet." By July 2020-seven months after Gina's placement with the paternal grandmother-father had had four visits with his daughter.
By September 2020, DCFS was reporting that father was having daily telephone calls with Gina and visiting on Saturdays from 12:00 p.m. to 4:00 p.m. But, father's weekly visits with Gina were interrupted again toward the end of 2020 due to father's work schedule and Gina's rehearsal schedule for the Nutcracker. DCFS reported that the weekly visits stopped for one or two months. During this period, father was only available at night, so he and Gina had FaceTime visits.
Thereafter, father never resumed his weekly visits with Gina. He testified on April 30, 2021, that he tried to visit Gina every other Sunday.
Based upon this record, the juvenile court properly found that father had not regularly visited Gina. (In re Caden C., supra, 11 Cal.5th at p. 632; In re I.R. (2014) 226 Cal.App.4th 201, 212 ["The precise number of visits was in conflict, but both [the] mother's testimony and that of the social workers were clear that there were significant lapses in visits"].) Although there may have been periods of time in which father's visits were somewhat consistent, this is insufficient to satisfy the exception to adoption. In order to establish the parent-child beneficial relationship exception, a parent must demonstrate he has "maintained regular visitation and contact" with the child. (§ 366.26 subd. (c)(1)(B)(i).) Periods of consistency simply are not enough. (See In re C.F. (2011) 193 Cal.App.4th 549, 554 ["Sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption"]; see also In re J.C. (2014) 226 Cal.App.4th 503, 531 [regular visitation prong not satisfied where there were significant lapses in visitation].)
Father acknowledges that the juvenile court found that he had not regularly or consistently visited Gina, but argues that substantial evidence supports a contrary conclusion. He asserts that, "[T]aking in to account the totality of the circumstances including Gina's initial placement with maternal relatives and the limitations unexpectedly imposed due to the COVID-19 pandemic," he regularly visited the child.
To the extent father asks us to reweigh the evidence, we cannot and will not do so. (In re Cole C. (2009) 174 Cal.App.4th 900, 918.) In any event, nothing in the appellate record supports father's contention that he was unable to visit Gina at the paternal grandmother's home as a result of COVID-19 concerns.
Having concluded that father did not establish the first prong of the analysis, the exception cannot be proven. Our analysis could stop here. For the sake of completeness, we address the remaining prongs.
B. Benefit from continuing the relationship
In In re Caden C., our Supreme Court explained that a juvenile court's assessment of whether "the child would benefit from continuing the relationship" may be "shaped by a slew of factors," including the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. (In re Caden C., supra, 11 Cal.5th at p. 632.)
In the instant case, Gina had a relationship with father, but the evidence was mixed at best as to whether the relationship was beneficial to the child. Certainly, there were elements of Gina's relationship with father, discussed in father's brief, which were positive. There were other aspects of the relationship, however, that were not. For example, there is little doubt that Gina's relationship with mother was harmful to the child. In spite of this fact, father maintained an ongoing, dependent relationship with mother. At the inception of the case, when Gina was initially removed from the parents, mother and father would call Gina and tell her not to listen to the relatives and not to speak with anyone who came to the home. It appeared that the parents were coaching Gina and caused the child to change her statements.
Two years later, not much had changed. Father did not understand why Gina felt the way she did towards mother, he wanted the child to return to mother's custody, and he would repeatedly talk to Gina about mother (even though doing so upset Gina). In fact, mother would call father, who would in turn call Gina to defend mother. According to Gina, father would yell and it would "freak her out" and scare her. Father would question Gina, asking, "Why are you telling the social worker things that happened in the past and [you're] not supposed to say those things."
Even Gina's therapist had observed that father talking about mother to Gina triggered the child.
As Gina's counsel properly observed, ordering legal guardianship over adoption for the child would have meant continued exposure to mother and her efforts to visit and reunify with Gina.
Furthermore, two years into the case, father seemed unwilling or unable to accept and acknowledge the validity of Gina's feelings. He continued to deny mother had physically abused Gina and would tell Gina that she should go back with mother. Father demonstrated that he was more concerned about defending and protecting mother than Gina.
Moreover, as the juvenile court noted, father had not made progress in his case plan, resulting in the failure to understand the harm caused to Gina. As a result of the parents' failure to participate in counseling and gain insight into the family's issues, the parental bond was not a healthy, strong bond and did not outweigh the benefits of adoption. (In re Caden C., supra, 11 Cal.5th at p. 638.)
While Gina's age and the portion of her life spent in the parents' custody is a relevant factor to be considered when determining whether a beneficial parent-child relationship exists, it is not dispositive. Other factors identified by the California Supreme Court as relevant to the analysis, i.e., the positive or negative effect of interaction between the parent and the child and the child's particular needs, weighed against a finding that the relationship Gina had with father was beneficial to her. (In re Caden C., supra, 11 Cal.5th at p. 632.)
C. Detrimental to terminate the relationship
When deciding whether "termination would be detrimental to the child due to" the relationship with the parent, the juvenile court must decide if it would be harmful to the child to sever the relationship and choose adoption. (In re Caden C., supra, 11 Cal.5th 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.) "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." (Id. at p. 634.)
That was the case here; there were benefits and burdens to Gina's relationship with father. After considering the evidence and argument from counsel, the juvenile court determined, on balance, that any benefit to Gina from continuing her relationship with father was outweighed by the benefits the child would gain from adoption.
Father contends the juvenile court erred by applying a heightened burden of proof to the parent-child beneficial relationship exception to adoption. We disagree. The appellate record merely shows that the juvenile court referenced that father's burden of proof was "high;" nothing more. And, after making this statement, the juvenile court correctly identified what father must prove and why he failed to prove it.
Father also suggests remand would be appropriate so that the juvenile court could consider all three elements of the parent-child beneficial relationship exception to adoption in light of In re Caden C., which was issued one month after the juvenile court terminated parental rights. (In re J.D., supra, 70 Cal.App.5th at p. 869; In re B.D. (2021) 66 Cal.App.5th 1218, 1230-1231.) A remand is not necessary here, particularly because the first prong did not require any clarification by the Supreme Court, was properly applied, and found to not have been met by father.
Finally, father contends that the juvenile court failed to consider Gina's wishes regarding adoption. After all, section 366.26, subdivision (h)(1) provides, in relevant part, that "[a]t all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." But, section 366.26 does not identify a child's consent as an issue in whether the child is likely to be adopted. Rather, section 366.26 dictates that the juvenile court "consider what the child's preferences are." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592.) But, "the child is not a cipher in the process. While we are both statutorily mandated and morally constrained to act in the best interests of the child, to the extent possible children should have some voice. It is, after all, their futures we decide, their destinies we begin and their entire lives we affect. But in honoring their human dignity we must be mindful that we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. We must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma. We see nothing to be gained by mandating such a specific requirement and we see no statutory language compelling that it be inferred." (Id. at p. 1593.)
And, the juvenile court had other evidence of Gina's preferences. (In re Leo M., supra, 19 Cal.App.4th at pp. 1593- 1594.) On April 20, 2021, Gina told DCFS that she was okay with being adopted by the paternal grandmother. Delaying Gina's permanency to get her additional thoughts on adoption, as father urges, would not be in the child's best interest, particularly where such preferences would not be dispositive to the court's ultimate decision.
Mother's Appeal
After mother filed her notice of appeal, we appointed counsel to represent her. After examining the record, mother's counsel filed a brief pursuant to In re Phoenix H., supra, 47 Cal.4th 835, indicating an inability to find an arguable issue. On October 15, 2021, mother was advised that she had 30 days in which to submit a letter or brief setting forth any arguments she wished for us to consider. To date, no such letter or brief has been filed.
"An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and 'present argument and authority on each point made' [citations]. If he does not, he may, in the court's discretion, be deemed to have abandoned his appeal. [Citation.] In that event, it may order dismissal. [Citation.]" (In re Sade C., supra, 13 Cal.4th at p. 994.)
DISPOSITION
The juvenile court's order is affirmed as to father. Mother's appeal is dismissed.
We concur: LUI, J., HOFFSTADT J.