Opinion
A161657
10-12-2021
In re Z.F., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. K.Z., Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 5048DEP
TUCHER, P.J.
After the juvenile court terminated reunification services between K.Z. (Mother) and her daughter Z.F., Mother sought to have Z.F. returned to her custody. The juvenile court denied Mother's motion and terminated her parental rights. Mother challenges these orders on appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Proceedings Before Section 366.26 Hearing Set
This dependency began in December 2016, when Z.F. was 14 months old. In August 2016, her alleged father (Father), engaged in domestic violence by picking up the entire bed upon which Mother and Z.F. were lying and flipping it so that Z.F. was thrown onto the floor and Mother landed on top of her. The incident took place after the couple argued. On December 1, 2016, he entered the home while Mother and Z.F. were sleeping, kicked in the bedroom door, and again flipped the mattress, throwing Mother and Z.F. out of bed, before striking Mother in the face and kicking her in the leg and buttocks as she held Z.F. Mother had a history of ending her relationship with Father but reuniting soon afterward. She had tested positive for methamphetamine, marijuana, and alcohol.
Father is not a party to this appeal.
As amended, the petition filed by the Sonoma County Human Services Department (the Department) contained allegations that the parents' actions had caused, or there was a risk they would cause, serious physical harm (Welf. & Inst. Code, § 300, subd. (a)); the parents failed to protect Z.F. because of their domestic violence and Mother's substance abuse (id., subd. (b)(1)); and Father's whereabouts were unknown and he was unable to provide care and support (id., subd. (g)).
All statutory references are to the Welfare and Institutions Code.
Between December 2016 and the February 2017 jurisdictional hearing, Mother missed some of her visits with Z.F. When they visited, Mother's behavior was often “agitated and disorganized.” Z.F. had a “flat affect during visits, [did] not smile or appear excited upon arriving to visits, and rarely respond[ed] or engage[d] with [Mother] during play.” Mother tested positive for marijuana and alcohol and did not comply with other requests for drug tests.
On March 7, 2017, the juvenile court sustained the allegations of the petition, declared Z.F. a dependent, placed her in foster care, and ordered reunification services for Mother.
Over the next several months, Mother's visits with Z.F. were only moderately successful. She brought snacks and engaged Z.F. in activities, but the Department expressed concern that Mother was “erratic and unable to regulate her mood and behavior in a manner that supports a safe and stable environment for [Z.F.]” She appeared to be under the influence during multiple visits, and on one occasion she ignored the social worker's guidance, behaved aggressively, disrupted other visits in progress, and had to be escorted outside. A few of the visits were cancelled because Mother either was late or did not appear. Mother continued to test positive for marijuana and she had not engaged consistently in recommended services such as therapy and an outpatient group. She did, however, enter a residential treatment program for substance abuse on July 31, 2017. Meanwhile, Z.F. was increasingly comfortable with her caregivers. On October 23, 2017, the juvenile court retained Z.F. as a dependent and continued reunification services for Mother.
By the time of the 12-month review hearing, Mother was actively engaging in her case plan, attending therapy, and seeking to maintain her sobriety. She had participated in parenting education and used “age appropriate parenting strategies” when visiting with Z.F. She was having unsupervised visits with Z.F., she had been largely consistent in visiting, and Z.F. looked forward to the visits and had become increasingly expressive and affectionate toward Mother. Z.F. was comfortable in her foster home and showed affection toward her foster parents. On March 8, 2018, the juvenile court again continued the dependency and reunification services.
By the time of the 18-month review hearing, the Department reported that Mother's visits were again inconsistent; she cancelled or failed to appear for some and terminated others early. During visits, Mother was “energetic and animatic in her persona, ” and “the fluctuation in her voice, mood and demeanor” caused anxiety and tantrums in Z.F. Mother had been absent from a drug court program on several occasions and failed to comply with a number of requests for drug tests. On August 27, 2018, the juvenile court terminated reunification services and set the case for a hearing under section 366.26 to select a permanent plan. Mother did not file a petition for an extraordinary writ challenging this order. (§ 366.26, subd. (l); Cal. Rules of Court, rules 8.450, 8.452.)
Proceedings After Section 366.26 Hearing Set
The section 366.26 hearing was initially scheduled for December 20, 2018. Before that date, the Department recommended parental rights be terminated and a permanent plan of adoption ordered. Mother's visits with Z.F. had once more become consistent. She brought snacks and activities, and they had fun together painting, eating snacks, and cuddling.
Z.F. had been living with her current caregivers, who wished to adopt her, since May 5, 2017. She was generally on track developmentally, with slight speech and language delays. She was happy and well-adjusted. She looked toward her caregivers for guidance, approval, and comfort, was “clearly connected” to them, and was “clearly an adored member” of their family. The social worker opined that removal from the current caregivers would be detrimental to Z.F.'s well-being.
The section 366.26 hearing was twice continued pending a settlement conference. On February 7, 2019, Mother filed a request under section 388 to continue the section 366.26 hearing and authorize a trial home visit, averring that she had made significant progress in areas including therapy, parenting education, and substance abuse treatment and that she could provide a safe home for Z.F. The juvenile court denied Mother's request on April 22, 2019.
Mother then requested a bonding study, and the matter was again continued. She informed the court on August 1, 2019 that she had retained a bonding expert. The matter was repeatedly continued thereafter. On June 15, 2020, Mother again filed a request under section 388 to continue the section 366.26 hearing and authorize a trial home visit, attaching the bonding study and averring she had developed a strong, positive emotional attachment with Z.F. The contested section 366.26 hearing, along with the hearing on Mother's section 388 motion, finally began on August 7, 2020 and concluded with the court's ruling on October 14, 2020.
Evidence of Mother's Relationship with Z.F.
a. Information in Addendum Reports
Mother continued to visit with Z.F. regularly, and the visits went well, with the exception of a visit in October 2019, when Mother told Z.F. her caregivers were trying to keep them apart, which upset Z.F. In early March 2020, Mother met with the foster parents, and all agreed that Mother's weekly visits with Z.F. would take place in the caregivers' home. The visits went well, with Mother engaging in activities, games, and preparing food with Z.F. and the caregivers. The Department noted that Z.F. was an affectionate child who was excited to see many people, including the social worker.
In June 2020, the Department recommended that Z.F. be placed for adoption, taking the position that-if Z.F. was not able to maintain relationships with all the important adults in her life-it would be more detrimental for her to lose the “psychological parents” who had cared for her for more than three years than to lose her relationship with Mother, and that a plan of guardianship would deprive Z.F. of the certainty of knowing she had a permanent home.
b. Dr. Dana Oertel-Bonding Study
Dana Oertel, Psy.D., a forensic psychologist, prepared a bonding study on behalf of Mother and testified at the section 366.26 hearing. He specialized in “child and family forensic issues, ” but had never before completed a bonding study in a child welfare case. He had interviewed Mother and the foster parents, observed Z.F. with Mother and the foster parents, reviewed the records of the dependency, and spoken with the social worker.
Dr. Oertel opined that early in the dependency, Mother and Z.F. did not share a healthy bond, and Mother's “decisions and behaviors were likely detrimental to her relationship” with Z.F. However, as she became “strong in her own recovery” beginning in mid-2018, Mother “significantly improved as a parent, ” and despite limited visitation she and Z.F. developed a positive bond. Mother occupied a parental role with Z.F. and the relationship was stronger than that of a favorite family member. Mother felt a strong bond toward Z.F. and there was evidence to suggest Z.F. viewed her as a parental figure. For instance, she called Mother “mom”; she was excited to see her and jumped into her arms; she displayed affection toward Mother and told her she wanted to live with her or go to her house; she shared her thoughts and ideas with her and looked to her for direction, ideas and comfort; she responded to redirection from Mother; and the two had special activities they did together, such as hair braiding. Mother cared for Z.F.'s physical needs when they were together and she attended to her developmental needs by helping her count, say the alphabet, and pronounce words. Referring to Mother and the foster parents, Z.F. said she had “two moms” and “a dad.” The parental bond between the two, according to Dr. Oertel, was likely “important to [Z.F.] in an observable, meaningful way, ” and “more likely than not... preserving this bond would currently be in [Z.F.'s] best interest.” Dr. Oertel testified that losing the relationship would be detrimental to Z.F. in the long term. He was unable to state an opinion as to whether that detriment would outweigh the benefit of an adoptive home.
Dr. Oertel explained that Z.F. had also developed a strong bond with her foster parents, with whom she had lived for 39 months. They had guided Z.F. through “some difficult developmental challenges.” They had been a more consistent presence in her life, and their bond with Z.F. was likely developed sooner than Mother's due to the length of time it took Mother to make significant progress in her recovery. They occupied a parental role in Z.F.'s life, and Z.F. had also developed bonds with their other children and extended family. Dr. Oertel agreed that the longer a child lived with parental figures, the more likely it was that the child would view them as her primary parental figures, and agreed it was likely she viewed her foster parents in this way. It would likely be in Z.F.'s best interest to preserve her parental bond with them.
c. Dr. Gloria Speicher-Response to Dr. Oertel
Gloria Speicher, Ph.D., a psychologist, prepared a response to Dr. Oertel's bonding study on February 28, 2020. She was of the opinion that Dr. Oertel's study did not provide behavioral evidence of what he characterized as the “strong and positive bond” between mother and child, or evidence the attachment was secure rather than insecure. Her view was that Z.F.'s history and behavior suggested an “insecure attachment style.” She also pointed out that Dr. Oertel did not explain how continuing the relationship with Mother would promote Z.F.'s well-being to such as degree as to outweigh the security and benefits of adoption.
After counsel presented closing arguments at the contested hearing, the court sustained an objection to Dr. Speicher's letter and said it would not consider the letter. The court did, however, on the date it issued its ruling state it had reviewed the documentary evidence, including Dr. Speicher's letter and the two bonding studies. Because of this ambiguity in the record and because Dr. Speicher's letter is not dispositive, we will not rely on it here.
d. Dr. Anna Washington-Bonding Study
At the Department's request, Anna Washington, Ph.D., a psychologist at the Department of Pediatrics at UC Davis Children's Hospital, also carried out a bonding assessment. She reviewed records, interviewed Mother, Z.F., the foster mother, and others who knew the family, and observed Z.F. with Mother and the foster parents. She had performed about 20 bonding studies in the past.
Dr. Washington concluded that while Mother had experienced “tremendous personal growth” and possessed parenting skills, she and Z.F. did not appear to have a parent-child relationship. “While [Z.F.] enjoys and likely benefits from her relationship with [Mother], she does not appear to view [Mother] as a primary attachment figure. [Z.F.] is a friendly and affectionate girl who has built positive relationships with several other adults as well, ” including an aunt and a neighbor, and had interactions with them that were similar to those she had with Mother. Dr. Washington characterized the relationship between Mother and Z.F. as “a positive relationship that is moderate in strength, ” and she concluded that Z.F.'s attachment to Mother “is no longer that of a parent, but more like that of a favorite extended family member.” She opined that, although Z.F. would be sad in the short term if the relationship were terminated, she would not be greatly harmed, that termination of the relationship would not likely negatively affect her long-term development, that continuing the relationship would not promote Z.F.'s well-being to a degree that would outweigh the benefit she would receive from the permanence of adoption, and that “the long-term benefits of consistency, predictability, safety, and supportiveness that would come from being adopted by her current caregivers would outweigh any short-term losses.”
Dr. Washington noted that when Z.F. came to live with the foster parents at a year and a half of age, she “displayed fears, rejected closeness and physical affection, displayed flat affect, developmental delays, and preferred to cautiously observe rather than to interact with others, ” likely as a result of “her early history of trauma and separation.” Mother's behavior during the 14 months Z.F. lived with Mother had a negative effect on the bond between Mother and Z.F, which Dr. Washington characterized as not “secure.” Under the foster parents' care Z.F. had “developed into a friendly, expressive, considerate, generally happy, and affectionate girl, ” she had mastered many developmental milestones, and her foster parents had identified areas of concern and obtained services such as speech therapy where necessary. She looked to the foster parents rather than Mother for comfort and approval when they were all together, she identified them as the people she would seek out for support, and she wanted to stay with them during her daily activities.
Dr. Washington explained that the strongest predictor of whether a child can remain resilient in response to traumatic experiences is having “stable and supportive caregivers” and that the foster parents had consistently guided Z.F. though difficult circumstances, including when Mother was aggressive and unpredictable during visitation. In her view, Z.F.'s history of trauma made it particularly important that she have the benefits of permanence in the form of a stable, consistent, supportive caregiver. Dr. Washington concluded the foster parents had a strong, positive parent-child relationship with Z.F., that this was “the longest, and importantly, the most stable, consistent, and predictable placement that she has experienced throughout her lifetime, ” and that termination of the relationship would be detrimental to Z.F.'s future mental health and well-being.
e. Jody R.'s Testimony
Jody R., a parent mentor with the Child Parent Institute, worked with Mother during the dependency. Mother's behavior had changed after she acknowledged that she needed to “take things seriously, ” and Jody R. had never seen anyone “grow and thrive” as Mother had. Jody R. described visits in which Z.F. was happy to see Mother, Mother encouraged, guided, and taught Z.F., she talked with her about how to handle conflicts with other children, she cared for Z.F.'s hair and took her to the bathroom, Z.F. turned to Mother for guidance and help, she asked to spend the night with Mother, and she was very affectionate. Jody R. saw love and connection between Mother and Z.F. and she had seen Z.F. look to Mother as a mother figure.
f. Mother's Testimony
Mother testified that Z.F. viewed her as a parent; she was attached to and affectionate toward Mother; she understood Mother gave birth to her; and she looked to her to have her needs met and for protection when they visited. The weekly visits lasted between two and six hours, and Mother sometimes brought her food and tucked her into bed. Mother had regained her sobriety after Z.F. was removed from her custody, and she continued to work with her sponsor and take part in therapy.
g. Social Worker's Testimony
The social worker assigned to the case opined that it was in Z.F.'s best interest to be adopted by the foster parents. She believed Z.F. was attached to them and they were her primary parental figures and the “psychological parents” to whom she turned for comfort, guidance, and daily care, and that it would be detrimental to remove her from their care. She believed Z.F. enjoyed her time with Mother during the few hours they visited each week and that she had a connection with Mother, but she did not think Z.F. viewed Mother in a parental role. In her view, the permanence of adoption would outweigh the benefits of Z.F.'s relationship with Mother, and Z.F. would be harmed by a breach in the attachment she had developed with the foster parents.
Juvenile Court's Ruling
On October 14, 2020, the juvenile court denied Mother's section 388 request to return Z.F. to her care. It found that Mother had shown a change in circumstances in overcoming her addiction and had improved her skills as a parent and that Mother had a bond with Z.F., but that it was not in Z.F.'s best interests to remove her from the home in which she had spent three and a half of her five years.
As to the section 366.26 hearing on that same date, the court found Z.F. was adoptable, ordered a permanent plan of adoption, and terminated parental rights. In doing so, it concluded the beneficial relationship exception to the preference for adoption had not been established because Z.F. saw Mother as “a benevolent person who adds to her life” but looked to the foster parents as her parents, finding in them protection, nourishment, stability, and permanence; she was unlikely to have any independent recollection of any other placement; and placement with the foster parents was in her best interest. The court expressed hope, however, that Mother could remain involved in Z.F.'s life.
DISCUSSION
I. Denial of Section 388 Motion
Mother contends the trial court erred by applying the wrong legal standard when it declined to return Z.F. to her custody. (See In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 [“A decision that rests on an error of law constitutes an abuse of discretion”].)
Section 388 authorizes a parent to petition the court to change a previous order based on a change in circumstances or new evidence if undoing the prior order would be in the child's best interests. (§ 388, subds. (a)(1), (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527 & fn. 5, 529 (Kimberly F.); In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) After reunification services have been terminated and a section 366.26 hearing has been set, the focus of the proceedings shifts from reunification with the parent to the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).) Thereafter, the parent has the burden to show changed circumstances to revive the possibility of reunification. (Id. at p. 309.) Section 388 thus serves as “an ‘escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (Kimberly F., at p. 528.) In this respect, it is “vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular.” (Ibid., citing Marilyn H., at p. 309.)
The appellate court in Kimberly F. explored the application of these principles where a parent seeks return of a child after reunification services have been terminated. The juvenile court may not merely make a “ ‘simple best interest' comparison, ... defin[ing] a child's ‘best interests' in a vacuum, apart from his or her familial relationships, ” in a manner that involves “ ‘play[ing] God' [to] determine which of two households a child should have been born into.” (Kimberly F., supra, 56 Cal.App.4th at p. 529.) Such an approach, the court explained, “ignores all familial attachments and bonds” with the parent, “devalues any interest of the child in preserving an existing family unit, ” and fails to “address the child as a whole person, including his or her formative years with a natural parent.” (Id. at pp. 529-530.) Rather than approach the matter so simplistically, the court must instead consider a number of factors, among them “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Id. at p. 532; but see In re J.C. (2014) 226 Cal.App.4th 503, 527 [declining to apply Kimberly F. factors on ground they did not take into account shift of focus to best interests of child rather than parent's efforts].)
The determination of a section 388 motion is committed to the sound discretion of the juvenile court, which we do not disturb unless abuse of discretion is clearly established, that is, if the trial court “ ‘exceeded the bounds of reason.' ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).) If the facts are susceptible to more than one inference, we may not substitute our inference for that of the trial court. (Ibid.)
The juvenile court here could reasonably conclude Z.F.'s best interests would not be served by taking her from the home she had known since she was a year and a half old and returning her to Mother. At the time of the ruling, Z.F. was five years old. She had not lived with Mother for nearly four of those years-since she was 14 months old-and she had lived with the foster parents for three and a half of those years. As our high court has explained, when custody continues over a significant period, a child's need for continuity and stability assume “ ‘an increasingly important role,' ” which “will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” (Stephanie M., supra, 7 Cal.4th at p. 317.)
On this record, a conclusion that this is such a case falls well within the juvenile court's discretion. There is evidence that Z.F. sees her foster parents as her primary parental figures, turning to them for comfort and approval, that they have provided the security that allowed her to overcome the trauma and developmental delays she experienced in her parents' care, that she shares a strong attachment to them, and that her attachment to Mother is of only “moderate” strength. And Dr. Washington opined that it would be detrimental to Z.F.'s well-being, including her “development, mental health, and future attachment style, ” if she were taken from the only home she has known for most of her life. We recognize that Mother has made commendable progress in her recovery from substance abuse and that she shares a positive bond with Z.F. But the focus at this stage is on Z.F.'s best interests. We share the juvenile court's hope that Mother will remain involved in Z.F.'s life, but taking into account all relevant factors, we think the juvenile court reasonably concluded that Z.F.'s best interests would not best be served by taking her from her foster parents' home and returning her to Mother's custody.
We reject Mother's various challenges to this conclusion. In an effort to avoid the abuse of discretion standard of review, she suggests the juvenile court erred as a matter of law by engaging in a simple comparison of the two households. The court's ruling does not support this interpretation. Rather, the court appropriately noted that Z.F. had spent the majority of her life with the foster parents, appropriately considered the bond she had developed with them and the “loving kindness, compassion, [and] stability” they had given her (see Kimberly F., supra, 56 Cal.App.4th at p. 531), and concluded that “based on all of the evidence and the totality of the circumstances, ” moving Z.F. would not be in her best interests. In support of its conclusion, the juvenile court cited Kimberly F. and explained it was relying on the three factors outlined there. Mother has not shown the court misunderstood or misapplied the relevant factors.
Mother also argues the court improperly relied on the delays in the court process itself-a delay for which the juvenile court apologized-to deny her section 388 motion. We share the dismay expressed by the judge who presided at the October 14, 2020 hearing at the length of time it took-two years-after reunification services were terminated to hold the section 366.26 hearing. This exceeds by many times the 120 days within which the governing statutes require such hearings to be held (§§ 366.21, subd. (g)(4), 366.22, subd. (a)(3)), and we remind the court of the importance of adhering to the statutory deadlines in order to avoid precisely what occurred here-a young child spending years without the security of a permanent home and her mother and prospective adoptive parents spending years in uncertainty. As our high court has explained, even a delay of 120 days “can be a lifetime to a young child, ” for “[c]hildhood does not wait for the parent to become adequate.” (Marilyn H., supra, 5 Cal.4th at p. 310.) But, as the juvenile court noted, the delay in fact occurred, and the court had no choice but to base its determination of Z.F.'s best interests on the facts at the time of its ruling.
Nor are we persuaded by Mother's contention that the juvenile court's brief aside-that section 388 motions at this stage of the proceedings are a “Hail Mary” and “rarely granted”-shows that courts have a widespread practice of nullifying the intent of the Legislature in enacting section 388 in violation of parents' constitutional rights to familial association and in violation of the separation of powers, or that such a violation occurred here. Mother is correct that the “ ‘escape mechanism' ” of section 388 is vital to the constitutionality of a statutory scheme that can culminate in termination of parental rights. (Marilyn H., supra, 5 Cal.4th at pp. 306-310; Kimberly F., supra, 56 Cal.App.4th at p. 528.) But there is no evidence in the record of what other courts in this state do when presented with such motions. More important, this record does not show the juvenile court discounted Mother's motion or failed to consider it on the merits under the correct standards. On the contrary, the court immediately followed its comment by noting that a section 388 motion was “appropriate especially when someone has changed as much as this mother has changed, ” and in its ruling made clear that it weighed Mother's bond with Z.F. in the balance when deciding the child's best interests. Mother has not shown the court's ruling deprived her of her constitutional rights.
II. Beneficial Relationship
Mother's second contention is that the juvenile court applied the wrong legal standards in finding she did not establish the beneficial relationship exception to termination of parental rights and that, under the correct standards, it was an abuse of discretion to find the exception inapplicable.
At a hearing to select a permanent plan when reunification efforts have failed, the juvenile court may choose adoption, guardianship, or continued foster care. (§ 366.26, subd. (b).) Adoption is first in order of preference, and, if the court finds the child is likely to be adopted, it ordinarily terminates parental rights and orders the child placed for adoption. (Id., subds. (b)(1), (c)(1).) The Legislature has established a number of exceptions to the preference for adoption, including where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Id., subd. (c)(1)(B)(i).) This “beneficial relationship” exception is interpreted to mean that, even if the child cannot be in a parent's custody, “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)
In deciding whether this exception applies, the court “balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court bears in mind that a child's interaction with the natural parent almost always involves “some incidental benefit, ” but a relationship that triggers the beneficial relationship exception “arises from day-to-day interaction, companionship, and shared experiences” and occurs only when regular visits “have continued or developed a significant, positive, emotional attachment from child to parent.” (Ibid.; accord, In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) The court takes into account “[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., at pp. 575-576.)
In deciding whether termination of parental rights would be detrimental, the court does not compare the parent's attributes as a custodial caregiver to those of the prospective adoptive parents; rather, “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.” (Caden C., supra, 11 Cal.5th at p. 634.)
Our high court has recently set forth the standards of review we apply to a determination whether to apply the beneficial relationship exception. In considering the first two relevant questions-whether the parent has visited and maintained consistent contact with the child and whether the child would benefit from continuing the relationship with the parent-we review the juvenile court's ruling for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) The third element of the test-whether termination of parental rights would be detrimental to the child due to the child's relationship with the parent-is discretionary, and we review it for abuse of discretion. (Id. at p. 640.) The parent has the burden to show the exception applies. (In re E.T. (2018) 31 Cal.App.5th 68, 76 (E.T.); In re C.B. (2010) 190 Cal.App.4th 102, 122.)
In finding the beneficial relationship exception inapplicable, the juvenile court explained that although Mother had maintained regular visitation with Z.F. and the two shared a relationship, Mother failed to show that she occupied “a parental role, not just that of a friendly visitor” or that the benefits of the relationship outweighed the well-being Z.F. would gain in a permanent home. It concluded that, despite the care Mother gave Z.F. during their visits, Z.F. looked to her foster parents “for protection, for nourishment, for comfort, for stability, and for permanence, ” and that, after spending three and a half of her five years in their care, Z.F. had no independent recollection of any other home. It found Z.F. had “a sense of belonging” in her foster family, and that, even though Z.F. called Mother “mom, ” Mother's role in Z.F.'s life was as “a benevolent person who adds to her life.” The court specified that it had looked at Z.F.'s age, the portion of her life she had spent in Mother's custody, the positive or negative effect of their interaction, and Z.F.'s needs-all factors endorsed by Autumn H.-and concluded it could not find that severing their relationship would greatly harm Z.F. by depriving her of a substantial emotional attachment. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother argues the juvenile court held her to an incorrect legal standard by requiring that she establish daily contact with Z.F., which would be impossible in light of the limitations on the visitation she was allowed. (See In re Esperanza C., supra, 165 Cal.App.4th at p. 1061; see also In re A.G. (2020) 58 Cal.App.5th 973, 994 [exception does not require proof parent has day-to-day contact with child].) For support, she points to Dr. Washington's comments that Mother was not present on a daily basis to provide Z.F. with affection, comfort, care, and supervision. But she does not show the juvenile court failed to apply the correct standards in making its decision. Rather, the court's ruling explicitly relied on the factors set forth in Autumn H., factors Mother does not challenge.
Relying on a decision by another panel of this division, E.T., supra, 31 Cal.App.5th 68, Mother contends that on the merits the juvenile court's ruling was an abuse of its discretion. E.T. was the “rare case” in which the juvenile court erred in declining to apply the beneficial relationship exception. (Id. at p. 70.) The children there, four-year-old twins, had been removed from their mother, who had a history of mental health issues and drug addiction, when they were four months old but returned more than a year later with family maintenance services. Over a year after that, Mother relapsed on drugs and voluntarily informed the social worker, and the children were placed with their godparents. The juvenile court then bypassed reunification services to Mother because the previous reunification attempt had been unsuccessful and terminated her parental rights. (Id. at pp. 71, 75.) In doing so, it explained that the children had lived 24 months of their lives with the godparents and only 22 months with Mother, some of the visits with Mother had been difficult, and although the children were “ ‘very tied to their mother, it's not to such an extent that they can't be happy in their godparents' placement.' ” (Id. at p. 75.)
This division concluded that the juvenile court in E.T. abused its discretion. The children loved their mother; she provided them comfort and affection; she was able to ease their fear and anxiety; and she had continued to participate in programs to maintain her sobriety and become a better parent. (E.T., supra, 31 Cal.App.5th at pp. 76-77.) The E.T. court explained that “[t]he standard is whether the children benefit from Mother's presence in their lives, not whether they could eventually be happy without her, ” and concluded that on the record before it, there was “no question that the twins have a substantial and positive attachment to Mother such that terminating their familial relationship would cause great harm.” (Id. at p. 77.)
The record before us is different. Z.F. had not lived with Mother since she was 14 months old, an age from which the juvenile court concluded she retained no independent memories, and she had lived with the prospective adoptive parents for almost three and a half years, the clear majority of her young life. This case also differs from E.T. in that here, the bonding study carried out by Dr. Washington provides evidence that the bond between Mother and Z.F., while positive, is of only “moderate” strength; that Z.F.'s affection for Mother is not a “parental” attachment; that she would not be greatly harmed if the relationship were to end; that she had a “distinct preference” for the foster parents over other adults; that, given Z.F.'s history of trauma and separation, it was particularly important that she have the security of a stable, consistent caregiver; and that her progress from the early days of the dependency, when she showed “flat affect” and developmental delays, was likely due to her foster parents' continued attentiveness and care. As our high court has explained, “often expert psychologists who have observed the child and parent and can synthesize others' observations will be an important source of information about the psychological importance of the relationship for the child.” (Caden C., supra, 11 Cal.5th at pp. 632-633.) Even Dr. Oertel, who carried out a bonding study on behalf of Mother, was unable to opine that the detriment of severing the bond with Mother would outweigh the benefit of an adoptive home. Whether or not it would have been within the juvenile court's discretion to rule otherwise, this is not the “rare case” (see E.T., supra, 31 Cal.App.5th at p. 70) in which the court abused its discretion in concluding the benefits of adoption outweigh those of maintaining the parental relationship.
Caden C. is not to the contrary. That case establishes that a parent's continued struggles with the mental health and substance abuse issues that led to the dependency do not act as a categorical bar to application of the beneficial relationship exception. (Caden C., supra, 11 Cal.5th at pp. 626, 637-639.) In the course of its opinion, our high court noted that the correct inquiry is not whether the parent can provide a home for the child, nor who would be a better custodial caregiver. (Id. at p. 634.) But the record here does not show the juvenile court improperly relying on any struggles Mother might still face, nor that it based its decision on a comparison of whether Mother or the foster parents would be a better custodial caretaker in the abstract. Rather, it looked to the strength of Z.F.'s attachments to each of them and concluded, based on evidence in the record, that Mother did not hold the primary parental role in Z.F.'s life and that the benefits of continuing the relationship with Mother would not outweigh the benefits Z.F. would receive from adoption. Although we applaud the progress in sobriety and parenting that Mother eventually made, we see no error or abuse of discretion in this decision.
DISPOSITION
The October 14, 2020 orders are affirmed.
WE CONCUR: PETROU, J., CHOU, J.[*]
[*] Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.