Opinion
A162069
12-16-2021
In re J.C., a Person Coming Under the Juvenile Court Law. v. Patrick C., Defendant and Appellant. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. DEP-5576)
Richman, J.
Appellant Patrick C. (Patrick or father) is the father of daughter J.C., now 3 years old. After father's parental rights were terminated at a Welfare and Institutions Code section 366.26 hearing held in 2019, he appealed and we reversed, finding that the juvenile court had misunderstood the law governing the parent-child beneficial relationship exception and therefore abused its discretion. We remanded for a new section 366.26 hearing, at which a different judge again found the exception inapplicable and again terminated father's parental rights. Father appealed a second time, and while that appeal was pending, our Supreme Court decided In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), addressing and clarifying the law regarding the parent-child beneficial relationship exemption. Father argues that the juvenile court misapplied the law governing the exception as set forth in Caden C. We agree, and we reverse.
The following background is from our opinion in father's first appeal, In re J.C. (A159073, July 31, 2020) 2020 WL 4381652 [nonpub. opn.].
"The Family and the Petition
"This family came to the attention of the Sonoma County Human Services Department (Department) in July 2018 when J.C. tested positive for methamphetamine and amphetamine at the time of her birth. The Department would come to learn that mother Brittany D. used drugs throughout her pregnancy and Patrick was a regular drug user as well.Nevertheless, the parents were allowed to take J.C. home from the hospital, subject to the following safety plan: The parents would live with the maternal grandparents, refrain from drug use, and participate in drug testing. J.C. would remain with her parents, but they would leave her in the care of the grandparents if they felt the urge to use drugs. The grandparents would check in with the parents on a daily basis, be alert for any behavior suggesting drug use, and contact the Department regarding any concerns that the safety plan was not working.
This appeal is brought only on behalf of Patrick. We therefore omit facts regarding Brittany except where relevant to the issues before us.
"On July 27, the Department filed a Welfare and Institutions Code section 300 petition alleging J.C. came within the jurisdiction of the juvenile court because her parents' substance abuse problems placed her at substantial risk of harm.
All statutory references are to the Welfare and Institutions Code.
"Jurisdiction/Disposition
"In an August 21 combined jurisdiction/disposition report, the Department reported that J.C. continued to live with her parents at the maternal grandparents' home. While noting that the parents had a good support system in the grandparents, the Department believed J.C. was 'still at significant risk of harm in her parents' care' due to their history of substance abuse. It therefore recommended that the court continue its monitoring of the situation and order family maintenance services for the parents.
"At an August 23 jurisdiction/disposition hearing, the court declared Patrick to be the presumed father. It also found the allegations of the petition to be true, declared J.C. a dependent of the juvenile court, and ordered that she remain in the care of her parents under the supervision of the Department, with the parents receiving family maintenance services.
Brittany and Patrick had been together for six years but were not married.
"Section 387 Supplemental Petition
"Throughout September, Patrick appeared to be doing well, including testing negative for all substances. By October, however, he was struggling and failed to report for a hair follicle test on October 12. Brittany continued her drug use and refused offers to go into treatment. Accordingly, on October 17, the Department filed a section 387 supplemental petition alleging the previous disposition was ineffective in protecting J.C. because the parents were not complying with the safety plan or engaging in family maintenance services. Because the prior disposition had been unsuccessful in protecting J.C., the Department was requesting that she be placed in a more restrictive placement with her grandparents. The court ordered J.C. detained the next day.
"Jurisdiction/Disposition on the Supplemental Petition
"At the time of the November jurisdiction/disposition report, Patrick and Brittany were no longer together, and Patrick was living in his car. According to the grandmother, he presented well when taking care of J.C., and she believed J.C. was safe in his care as long as he was not using drugs. The Department was uncertain if Patrick was still using drugs. He had been testing negative, but it was rumored he was using someone else's urine for the tests, so the social worker had requested he submit to a hair follicle test. He claimed to have complied, but the staff at the testing center said he had not.
"As to visitation, Brittany and Patrick had separate, one-and-a-half-hour visits each week, which the visitation supervisor described as erratic, surmising that the erratic behavior was indicative of drug use.
"Because the parents had not engaged in services or shown they could keep J.C. safe under the family maintenance plan, the Department recommended that J.C. be placed with the maternal grandparents and the parents receive reunification services.
"At the November 29 jurisdiction/disposition hearing, the court found the allegations in the section 387 supplemental petition to be true, ordered J.C. removed from the parents' care and placed with the maternal grandparents, and ordered reunification services.
"Six-month Status Review
"By the April 2019 six-month review, Patrick was not making progress on his case plan. Other than participating in weekly visitation with J.C., he had not engaged in any services offered by the Department. He was living in his car and using methamphetamine on a daily basis.
Brittany was eight months pregnant, homeless, and also using methamphetamine daily.
"Despite Patrick's continued drug use, he maintained a positive relationship with J.C. According to the social worker, he was 'great' with her during visits, was able to care for and nurture her, and had many natural parenting instincts. As the social worker described his visits, J.C. 'is observed to be smiling and cooing. [Patrick] tickles her, interacts with her, and gives her many kisses. They both seem to genuinely enjoy each other. Often it seems as though [J.C.] is sleeping during his visits, and she will often fall asleep' in his arms.
"While the Department recognized the visits were 'very good,' Patrick's 'unaddressed addiction' prevented him from being a safe parent. And because the parents continued to allow their addictions 'to run rampant, unchecked,' the Department did not believe additional reunification services would make any difference in the outcome. Accordingly, it recommended the court terminate reunification services and set a section 366.26 hearing.
"Six-month Review Hearing
"At a May 9, 2019 review hearing, Patrick's counsel informed the court that Patrick had figured out how to apply for benefits through the Veterans Administration and was hoping to get services through them, make progress, and then return to the dependency court for additional services. With that, he submitted on the Department's report.
"The court then terminated reunification services and set a section 366.26 hearing.
Due to an issue with the court's ruling as to Brittany, the matter came on for a subsequent six-month review hearing on July 30. Brittany submitted on the Department's report, and the court terminated her reunification services and reset the section 366.26 hearing.
"Section 366.26 Report
"In a section 366.26 report filed September 26, the Department recommended termination of parental rights with a permanent plan of adoption, and that J.C.'s maternal grandparents, with whom she had been placed since October 2018, be identified as her potential adoptive parents.
"According to the Department, Patrick had generally been consistent with visits, J.C. enjoyed the visits, and it was evident he loved and enjoyed spending time with her. The Department observed, however: '[J.C.'s] primary attachment is with neither parent and she is too young to understand her circumstances. [She] is a happy, playful toddler who enjoys interactions with friendly adults. However, when [she] does not feel safe, or is sick she wants her primary caregivers, the maternal grandparents[, ] for comfort/support. The potential adoptive parents are [her] psychological parents, not the parents who are friendly visitors.' The Department advised that it had considered the beneficial parent-child relationship exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(B)(i), and found that 'the permanency that [J.C.] will gain through adoption outweighs the benefit of a friendly visitor.'
"The Department's report concluded with this summary:
" 'The parents were unsuccessful in their efforts to reunify with [J.C.] and services were rightfully terminated. They continued to use methamphetamine and never took the action steps to overcome their addictions. Therefore, timelines to permanency prevail. [J.C.] currently needs a safe, stable, permanent home, with a nurturing caregiver to ensure a healthy childhood.
" 'The preferred, more secure plan is a plan of adoption. It will set the course for [J.C.'s] future by removing any expectation that her life could be upended for better, or worse. It makes sure she does not spend time waiting for either parent to address their addiction and commit to recovery. [J.C.] deserves the security and stability that the finality of adoption will provide to ensure she reaches her full potential.
" 'It is in the best interest of [J.C.] that the legal relationships between the child and the mother, Brittany [D.] and the presumed father, Patrick [C.], be terminated pursuant to Welfare and Institutions Code [section] 366.26, and that the child be placed in the care and custody of the Human Services Department for adoptive placement.'
"Contested Section 366.26 Hearing
"On November 13, the court held a contested section 366.26 hearing. Three witnesses testified, as follows:
"Social worker Patricia Ramano had prepared the Department's section 366.26 report, in which she had described Patrick's visits with J.C. at the Department. She had recently learned from the grandmother, however, that since approximately July (around J.C.'s first birthday), Patrick was also visiting with J.C. at the grandparents' home. Per the grandmother, those visits occurred once or twice a week.
"According to Ms. Ramano, J.C. had lived in the home of her grandparents since her birth. She viewed her grandmother as her primary caregiver and looked to her for support, for example, going to her when she was hungry or wanted something. She referred to her grandparents as 'Momma' and 'Papa,' and viewed them as her psychological parents.
"Ms. Ramano believed the permanence of adoption would be best for J.C. because it 'is permanent. It's stable. It's secure. It gives continuity of care to the primary attachment.' A guardianship, on the other hand, 'gives a lot of uncertainty.'
"Amy N., Patrick's girlfriend, testified she had seen Patrick and J.C. together at the grandparents' house approximately 20 times when she dropped Patrick off for a visit. She had seen them interacting during some visits, and they usually played together, or Patrick fed J.C. and put her to bed. Sometimes J.C. would be fussy and start to cry, and Patrick, who J.C. called 'Daddy,' would give her a look and 'she'll just give him a smile.'
"Patrick testified that beginning in February, he started texting the grandmother every day asking how J.C. was doing. Then, in July, he had started seeing her at the grandparents' house, typically about four times a week. He would usually be at the house waiting for the grandmother to bring J.C. home at the end of the day, and he would take her out of the car, bring her inside the house, feed her, get her cleaned up, and play with her. When J.C. started to get tired, he would make her a bottle and put her to bed. Sometimes he saw her on the weekend when they would play until her naptime or bedtime and he would then put her to bed.
"Patrick described how J.C. liked to jump on him and it made her laugh when he 'lift[s] her up in the air and spin[s] her around and [does] acrobat stuff.' He also described the first time J.C. called him 'Daddy,' which was about a month and a half earlier. She was standing in the doorway yelling, 'Daddy, Daddy.' He did not think she was calling to him, but everyone said she was.
"Patrick was comfortable with J.C. being in the care of the grandparents, but he did not want his parental rights terminated.
"Following the testimony, the court heard argument, beginning with county counsel, who argued that while J.C. enjoyed her visits with her parents, her primary attachment was to her grandparents. And while county counsel conceded there had been consistent and regular visitation, he contended Patrick's relationship with J.C. was not so strong that it overcame the preference for adoption and the permanence it would bring." (In re J.C. (A159073, July 31, 2020) 2020 WL 4381652, pp. *1-*4. [nonpub. opn.].)
The juvenile court then ruled that father had failed to demonstrate that the parent-child beneficial relationship exception applied, terminated father's parental rights, and ordered J.C. freed for adoption. (In re J.C., supra, 2020 WL 4381652, at pp. *6-*7.) In its ruling, the court expressed confusion regarding the exception and father's burden of proof with respect to it, and focused heavily on father's substance abuse and his failure to reunify. (Ibid.)
Prior Appeal
Father appealed and we reversed, concluding that the juvenile court had abused its discretion because it "did not properly consider the law governing the beneficial relationship exception when it terminated parental rights and ordered J.C. placed for adoption." (In re J.C., supra, 2020 WL 4381652, at p. *9.) We observed that the transcript was "rife with examples of the court not understanding the issues before it," including its confusion between visitation and reunification, neither of which was at issue, and its focus on "Patrick's past drug use, his failure to reunify, and the lack of evidence that he had overcome his addiction-never manifesting an understanding of the issues raised by the beneficial relationship exception." (Ibid.) We also noted the court's misstatement of father's burden, including describing that burden as" 'show[ing] today that somehow or other it's not in this child's best interests to be adopted, '" and at another point as demonstrating that he had overcome his drug addiction. (Ibid.) We remanded for a new section 366.26 hearing at which the juvenile court could properly consider the law governing the parent-child beneficial relationship exception. (In re J.C., supra, 2020 WL 4381652, at p. *10.)
Proceedings on Remand
On remand, a new section 366.26 hearing was held before a different judge.
In advance of the new section 366.26 hearing, the Department prepared a new section 366.26 report, filed September 17, 2020, which after detailing father's history of visitation with J.C., went on:
"If the information is accurate [Patrick] has had 15 hours of visits with [J.C.] since April, but even if it was grossly understated it still would not amount to a significant amount of time, or opportunity to provide any continuity of care for attachment or emotional ties. Thus, there is no evidence for a beneficial relationship. [J.C.] does call [Patrick] 'daddy' because the grandparents refer to him as such. [J.C.] also calls the siblings' father 'daddy' for the same reasons. The grandparents began to refer to [Patrick] as 'daddy Patrick' to differentiate between the two father's [sic], however, they reported that [J.C.] has confused the names calling each by the others name.
"Furthermore, at two years of age [J.C.] has no understanding of what daddy means. [J.C.] does not identify [Patrick] as her father, by saying 'my daddy.' She is developmentally too young to understand this concept. [J.C.] does not ask to see her father, or speak of him when he is not present. [J.C.] does enjoys [sic] seeing and playing with [Patrick]. He brings her gifts and reportedly 'sneaks her candy' during visits. The undersigned believes [Patrick] truly loves [J.C.], however, the strength of his love is not enough evidence to support the belief that not spending time with [Patrick], would be harmful to [J.C.] The fact remains that [J.C.]'s strongest emotional attachment is with the grandparents, in the home where she has lived all her life. [J.C.] seeks out the grandparents for safety, comfort, and to have her needs met and it is evident that a healthy parent/child relationship has developed. The grandparents continue to be [J.C.]'s psychological parents, who she calls 'momma and poppa.'
"In addition, [J.C.] has strong emotional ties to her sixteen-month and two-month-old siblings, both of which reside in the same home. Consequently, any change to [J.C.]'s plan would be detrimental to her wellbeing.
"The assessment by Sonoma County Family, Youth & Children's Services includes consideration of Welfare and Institutions Code
[section] 366.26[, subdivision] (c)(1)(B)(i), and has found that the permanency that [J.C.] will gain through adoption outweighs the benefit of a friendly visitor. Therefore, the undersigned assesses that termination of parental rights and a plan of adoption would not be detrimental to [J.C.]"
On October 30, father filed a section 388 request to change a court order using a standard form, asking that the court modify its prior orders and return J.C. to his custody, or alternatively reinstate his reunification services. Father attached a declaration stating that he had been clean and sober since January of 2020, was working, had his own house, and was in a stable relationship. He alleged that he had had consistent visitation with J.C. and had been providing diapers, formula, and other necessities for her.
The juvenile court held a contested hearing on father's section 388 petition together with the section 366.26 hearing on four dates: December 14, 2020, and January 15, February 1, and February 9, 2021. The court heard testimony from six witnesses: grandmother; Michael B., grandmother's son who had until recently lived in her house with J.C.; Amy N., father's girlfriend; father; mother; and the social worker, Patricia Ramano.
The Juvenile Court's February 9, 2021 Ruling
At the conclusion of the hearing on February 9, the juvenile court first addressed father's section 388 petition. It found that father's circumstances had changed, but that returning J.C. to his care would not be in her best interests because father had not enrolled in any substance abuse treatment programs to ensure that he stayed sober, and because J.C. had a need for continuity and stability in her current placement.
The court then went on to discuss the parent-child beneficial relationship exception:
"As I state, I believe the record shows a history of continued consistent and good quality visitation. That is not enough to overcome the fact that [J.C.] has maintained her same placement, stable continuance since her birth.
"You have failed to follow any of the county's goals that family reunification services were terminated back on May 9th, of I think 2019. May 9th, of 2019.
"And your visits whiled [sic] consistent and good quality, they are relatively few hours spent in comparison with the continuous care that [grandmother] has given to [J.C.]
"And although the interactions between you and your child have been positive, nothing in this record indicates that from the child's point of view the interactions were particularly like those of a child with her father. There was no evidence that the child, [J.C.], has any particular needs that only the parents could fill that are not being met by her caregivers at this time.
"So, at this point, and I'm going to roll this over also into the beneficial relationship exception, it would be, and I'm going [to] use this word more than once, devastating to go take [J.C.] from the only home she has ever known where she is placed with her siblings and with the continuous care of her grandmother, not only would it not be in her best interest, it would be devastating to her.
"I am also compelled and would cite In re Jasmine D. [(2000)] 78 Cal.App.4th 1339 which I believe is absolutely on point, which I'm paraphrasing.
" 'Tammy the minor in-the minor's mother, has been consistent in her visitation with Jasmine who was three years old at the time of the hearing.
" 'However, the mother had never progressed from supervised to unsupervised visits which the Court considered a significant failure.'
"You did have some unsupervised period of time on your walks and sometimes when you were in [grandmother]'s house with your daughter. By definition we have from the child welfare worker that the parental relationship exists not with you, [father], but with [grandmother].
"[Grandmother], and I would read from the report that was filed on September 15th, 2020, page 13, lines 9 through 16.
" '[J.C.] seeks close proximity to the grandmother when she is unsure or to have her needs met. She is easily reassured with a smile and a calm voice. [J.C.]'s close bond with the grandmother is evident. She seeks approval in many ways, reaching a higher level of satisfaction with the grandmother than any other family member, caregiver or friend is able to provide.
" 'The grandmother has become central to [J.C.]'s well being. The grandmother easily reads [J.C.]'s cues, understanding and meets her needs, as well as soothing her discomfort.'
"From and then later on still on page 13 at lines 26 over to page 14, lines-oh, I'm sorry, page 14, line 27 to 28 over to page 15, in talking about the relationship between [father] and [J.C.] and the grandmother and [J.C.], it states that:
" '[J.C.] deserves the safety and stability that a plan of adoption provides. Consequently, parental rights were terminated after a trial in 2019.'
"And we know of course that was overturned.
" 'At no time in [J.C.]'s young life has the father provided any consistent care to facilitate anymore than being a friendly visitor.'
"I would say that you do represent in her life more than a friendly visitor, and I would say an actual beloved uncle. And [J.C.] is-it goes on to state.
" '[J.C.] is just too young to understand any biological significance with [father].'
"Well, I don't know if I totally agree with that but, I do agree that she attributes to [grandmother] as her mother. And that's who she looks to for comfort and care and sustenance, everything that a parent should give, she looks to [grandmother]. Although I'm sure she loves you as well, [father].
"In asserting the beneficial relationship it is on the parties asserting it, their burden to prove that.
"The points made by [father's counsel] Ms. Hanagan, number one, was to explore guardianship. I am rejecting that as not in [J.C.]'s best interest. She needs the stability of adoption which is the preferred permanent plan. The fact that others were included in the original adoption assessments, makes no difference to me. It's just is looking, I thought, was looking forward to long-term planning in case something happened to, and I would say a somewhat elderly grandparent, [grandmother], but you're younger than I am. So I'm not going to say that, but you're a grandparent, and so I think that's future planning.
"The case of Jasmine is actually very on point Tammy is much the same age that [J.C.] is. And although they both love their parent, they are not assessing the biological relationship, even if she does call you dad or daddy.
"So for these reasons, I'm finding, number one, regarding the [section 366].26 that family reunification services are terminated and that adoption is the permanent plan. [J.C.] is both adoptable generally and specifically, that it is to overcome preference for adoption and to avoid termination of the natural parent's right, the parent must show that severing the natural parent child relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed.
"In fact, the opposite has been shown here. That [J.C.] would be once again be devastated by severing her relationship and taking her out of the custody and control of her grandmother, the stable continuous placement that she has known since her very birth.
"I have considered the age of the child, the portion of the child's life spent in the parent's custody, the positive or negative affect of interaction between the parent and the child, and the child's particular needs.
"I find that terminating parental rights is the appropriate action here, and I will do so."
Father again appealed.
Applicable Law and the Standard of Review
On May 27, 2021, after the juvenile court's ruling, our Supreme Court decided Caden C., supra, 11 Cal.5th 614, addressing the parent-child beneficial relationship exception. And more recently, in In re J.D. (2021) 70 Cal.App.5th 833 (J.D.), we distilled the law regarding the parent-child beneficial relationship exception after Caden C., as follows:
"The sole purpose of the section 366.26 hearing is to select and implement a permanent plan for the child after reunification efforts have failed. (In re Marilyn H. (1993) 5 Cal.4th 295, 304; see also § 366.26, subd. (b).) At that stage, 'the welfare agency's focus shifts from monitoring the parents' progress toward reunification to determining the appropriate placement plan for the child.' (In re Marilyn H., at p. 305.) The dependency statutes embody a presumptive rule that, after reunification efforts have failed, parental rights must be terminated in order to free a child for adoption. (Caden C., supra, 11 Cal.5th at pp. 630-631.) However, the statutes provide an exception where '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)
"In Caden C., the Supreme Court for the first time addressed this statutory exception in a wide-ranging opinion that clarified its scope, disapproved a series of decisions that took too restrictive an approach to it (Caden C., supra, 11 Cal.5th at p. 636, fn. 5; id. at p. 637, fn. 6; id. at p. 638, fn. 7), and, among other things, cited favorably an appellate decision applying the exception that had long been relegated to the status of an outlier, confined to its 'extraordinary' facts. (See id. at pp. 632, 633, citing In re S.B. (2008) 164 Cal.App.4th 289 (S.B.); see also, e.g., In re Noah G. (2016) 247 Cal.App.4th 1292, 1302-1303 [discussing and distinguishing S.B.], disapproved in Caden C., at pp. 637, fn. 6., 638, fn. 7.)
"The Supreme Court clarified, among other points, that the beneficial relationship exception has three elements. (Caden C., supra, 11 Cal.5th at p. 631.) As summarized in Caden C., 'the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption.' (Id. at pp. 636-637.) . . . ¶
"Caden C. also held that a parent's inability to overcome the issues that led to the dependency is not a categorical bar to applying the exception, because such a principle would be 'paradoxical' and 'would effectively write the exception out of the statute.' (Caden C., supra, 11 Cal.5th at p. 637.) But neither is it irrelevant. A parent's continued struggles with such issues '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.) And the court explained that, in any given case, evidence of such matters could cut either way. 'A parent's struggles may mean that interaction between parent and child at least sometimes has a" 'negative' effect" on the child,' while '[c]onversely, a parent who gains greater understanding of herself and her children's needs through treatment may be in a better position to ensure that her interactions with the children have a" 'positive' . . . effect" on them.' (Id. at pp. 637-638.)
"Finally, Caden C. clarified the standard of review we are to apply in reviewing the juvenile court's ruling. (Caden C, supra, 11 Cal.5th at pp. 639-641.) The first two elements are reviewed for substantial evidence, because a determination as to whether a parent has consistently visited and maintained contact with the child to the extent permitted by court orders 'is essentially a factual determination,' as is the question whether the relationship is such that the child would benefit from continuing it. (Id. at pp. 639-640.)
"The question whether termination of parental rights would be detrimental to the child, however, is more nuanced. That issue entails 'a series of factual determinations' that are reviewed for substantial evidence. (Caden C, supra, 11 Cal.5th at p. 640.) 'These may range from the specific features of the child's relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be.' (Ibid) They may also include a determination as to 'how a prospective adoptive placement may offset and even counterbalance those harms,' which in turn may rest on 'explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told.' (Ibid) The court's weighing of the relative harms and benefits of terminating parental rights (and hence, its ultimate decision), which reflects 'a delicate balancing of these [factual] determinations,' is reviewed for abuse of discretion. (Ibid) The Supreme Court explained, however, that there will likely be very little difference between these standards of review in practical application. (Id. at p. 641.) The reason is because 'the hybrid' standard of review it announced, '[a]t its core[, ] . . . simply embodies the principle that "[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions." '" (J.D., supra, 70 Cal.App.5th at pp. 851-853.)
With respect to the second element, Caden C. explained as follows: "As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.' ([In re] Autumn H. [(1994)] 27 Cal.App.4th [567, ] 576.)" (Caden C., 11 Cal.5th at p. 632.)
And with respect to the third element, Caden C. said this: "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home. (See [In re] Amber M. [(2002)] 103 Cal.App.4th [681, ] 690 [finding error in not applying exception based on social worker's testimony that 'focus[ed] on [parent's] inability to provide a home for [the children] and on the suitability of the current placements'].) Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. [Citation.] And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver. [Citation.]" (Caden C., 11 Cal.5th at p. 634.)
In J.D., we concluded that it was unclear to what extent the juvenile court-acting before Caden C.-considered improper factors at the second step of analyzing the parent-child beneficial relationship exception, and we reversed and remanded for a new section 366.26 hearing in accordance with Caden C. (In re J.D., supra, 70 Cal.App.5th at pp. 865, 870.) In particular, we observed that the juvenile court had appeared to improperly consider "the mere fact [mother] had been unable to succeed in overcoming her parenting struggles," "the suitability of [the minor's] current placement," the minor's attachment to his current caregiver, and the court's determination that mother did not occupy a "parental" role-all factors improper under Caden C. (Id. at pp. 864-865.)
Similarly in In re B.D. (2021) 66 Cal.App.5th 1218, 1222 (B.D.), the Fourth District Court of Appeal reversed an order-made before Caden C.- finding that the parent-child beneficial relationship exception did not apply and remanded for a new section 366.26 hearing in light of Caden C. (Id. at p. 1231.) B.D. concluded that the juvenile court had "considered improper factors at the second step of the analysis," because it "relied heavily, if not exclusively, on the fact that the parents had not completed their reunification plans and were unable to care for the children based on their long-term and continued substance abuse," and found "concerning" the juvenile court's references to "the paternal grandmother providing for the children's daily needs [and] whether the parents occupied a 'parental role' or whether a 'parental relationship' existed," because it was unclear to what extent the court had relied on these improper considerations in evaluating the second part of the test. (Id. at p. 1230.) Accordingly, B.D. remanded for a new section 366.26 hearing. (Ibid.)
Analysis
Here, the first element-regular visitation-is not in dispute. The juvenile court found that father had a "history of continued consistent and good quality visitation," and the Department concedes that substantial evidence supports that finding.
However, with respect to the second and third elements, we conclude that the juvenile court's ruling cannot be affirmed on this record, because the court appears to have relied on factors disapproved of in Caden C.-and therefore abused its discretion. (See J.D., supra, 70 Cal.App.5th at p. 854; B.D., supra, 66 Cal.App.5th at p. 1222.)
As noted, the second step of the analysis was for the juvenile court to determine whether "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., 11 Cal.5th at p.636.) And the third element was to determine whether "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Ibid.)
The juvenile court did not make any express findings on either of these elements of the test, although it did note that J.C. and father's interactions were "positive," that J.C. treated father like a "beloved uncle," and that J.C. "love[s] [her] parent." Nor did the section 366.26 report prepared by the agency discuss the quality or nature of J.C.'s emotional attachment to father, except to note that J.C. "enjoys seeing and playing with" father, together with the social worker's belief that father "truly loves" J.C.
But beyond this, in evaluating the exception overall, the court expressly relied on several improper factors under Caden C.
First, the juvenile court repeatedly compared father and grandmother as caregivers for J.C., emphasizing that J.C. looks to grandmother to have her needs met. For example, the court noted that the amount of father's visitation was "relatively few hours spent in comparison with the continuous care" provided by grandmother, that J.C. "looks to [grandmother] for comfort and care and sustenance, everything that a parent should give," and that "[b]y definition we have from the child welfare worker that the parental relationship exists not with you, [father], but with [grandmother]." This was improper, because "[w]hen it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (Caden C., at p. 634.)
In J.D., supra, 70 Cal.App.5th 833, we found concerning the fact that the minor's counsel had "emphasized the fact that [the minor] views [the current caregiver's] home, not mother's, as his home," thus "erroneously inviting the court to consider the suitability of his current placement in deciding whether to terminate mother's parental rights." (Id. at p. 864.) And we found the court's conclusion that mother's relationship with the minor "did not 'amount to a parental bond'" (ibid.), conclusory and problematic because Caden C. "made clear that more than one person can occupy an important, emotional role for a child even if one-the non-reunifying parent- is incapable of providing for the child's everyday needs and well-being." (Id. at p. 865.) The same concerns apply to the juvenile court's findings in this case.
Similarly, in B.D., supra, 66 Cal.App.5th 1218, the Fourth District found that the juvenile court considered improper factors in assessing the second element of the test because of "[t]he juvenile court's references to the paternal grandmother providing for the children's daily needs, [and] whether the parents occupied a 'parental role' or whether a 'parental relationship' existed" with respect to the minor. (Id. at pp. 1229-1230; see In re D.M. (2021) 71 Cal.App.5th 261, 271 [juvenile court's "express findings that father did not act like a parent demonstrate it considered factors which Caden C. has explained are inappropriate"].) So too here.
Second, and relatedly, the juvenile court appears to have erroneously assumed that finding the exception applicable would mean that J.C. would be removed from her grandmother's care, describing it as "devastating to go take [J.C.] from the only home she has ever known where she is placed with her siblings and with the continuous care of her grandmother," and later finding "[t]hat [J.C.] would be once again be devastated by severing her relationship and taking her out of the custody and control of her grandmother, the stable continuous placement that she has known since her very birth." But the question was whether father's parental rights should be terminated and J.C. freed for adoption, or whether one of the other statutory options should be selected, for example, appointing grandmother as J.C.'s legal guardian with father retaining his parental rights. (See § 366.26, subds. (b)(1) & (b)(3).) Finding the exception applicable did not mean that J.C. would be removed from grandmother's custody and care, because "[n]othing that happens at the section 366.26 hearing allows the child to return to live with the parent." (Caden C., at p. 634.)
Third, the juvenile court appears to have improperly relied on father's failure to reunify in reaching its decision-first, in expressly noting that reunification services were terminated in May of 2019, and second, in relying on In re Jasmine D., supra, 78 Cal.App.4th 1339 (Jasmine D.). In Jasmine D., the juvenile court found that the mother did not have a "parental relationship" with the minor and had not complied with her reunification plan, and in particular had "never progressed from supervised to unsupervised visits, which the court considered a significant failure." (Jasmine D., 78 Cal.App.4th at pp. 1343-1344.) The Court of Appeal affirmed, noting that mother "had made no steps toward overcoming the problems leading to Jasmine's dependency on the juvenile court" and that this was not the "extraordinary case" where the exception applied. (Id. at p. 1352.)
The juvenile court here twice mentioned Jasmine D., which it found "absolutely on point," at one point appearing to analogize father's lack of unsupervised visitation with J.C. to the facts of that case. But Caden C. expressly disapproved Jasmine D. to the extent it held that an additional "compelling reason" is required to apply the parent-child beneficial relationship exception beyond a determination that "terminating a child's substantial, positive attachment to the parent would, on balance, be detrimental to the child." (Caden C., at pp. 635-636.) And whether father had supervised or unsupervised visitation with J.C. was an improper consideration as well. (See J.D., supra, 70 Cal.App.5th at p. 864 ["The agency argued mother's visits were still supervised, erroneously implying the court could consider the mere fact she had been unable to succeed in overcoming her parenting struggles as a reason to rule against her, regardless of whether or how her son was affected by those shortcomings"].)
We do not find the Department's arguments in support of the order persuasive. The Department points to the court's statement, at the very end of its ruling, that "I have considered the age of the child, the portion of the child's life spent in the parent's custody, the positive or negative affect of interaction between the parent and the child, and the child's particular needs"-language, we note, lifted verbatim from In re Autumn H., supra, 27 Cal.App.4th 567, 576. While these were the proper factors to consider in evaluating the second element of the test (Caden C., supra, 11 Cal.5th at p. 632), the court's boilerplate recitation of them does not convince us that it properly evaluated the second element, given its more detailed and specific discussion of improper factors as already discussed. And the Department's further contention that there is substantial evidence in the record to support finding the exception inapplicable is unavailing, because if the court considered improper factors, it abused its discretion, even if it ultimately reached a result supported by the record. (See B.D., supra, 66 Cal.App.5th at p. 1229 [rejecting argument "that we must affirm the juvenile court's substantial evidence determination even if other evidence supports a contrary conclusion" because "[t]his argument ignores the juvenile court's reliance on improper factors"].)
The Department's attempts to distinguish B.D. are likewise unavailing. The Department first attempts to distinguish certain of B.D.'s facts, noting that the children in B.D. were approximately four and seven when the dependency began and thus had parental relationships predating the dependency, and that the children in B.D. "expressed sadness at the end of visits because they did not understand why their parents could not come home and live with them." (See B.D., supra, 66 Cal.App.5th at pp. 1222, 1229, fn. 4.) But the court in B.D. did not rely on these facts, but rather reversed the juvenile court's order because "the juvenile court considered improper factors at the second step of the analysis." (B.D., supra, 66 Cal.App.5th at p. 1230.) Similarly here: the question is not whether facts in the record would support a finding that the exception applied, but whether the juvenile court considered improper factors in conducting its analysis. We conclude that it did.
The Department's brief was filed approximately six days before our opinion in J.D., supra, 70 Cal.App.5th 833.
The Department also argues that this case is distinguishable from B.D. because the juvenile court here "did not rely on the fact that Father had not engaged in substance abuse treatment" and-unlike the juvenile court in B.D.-did consider the visitation between father and J.C., but found it "insufficient." This is not entirely accurate. The juvenile court here did expressly note that father had failed to comply with his reunification plan, and the extent to which it relied on that fact in reaching its decision is unclear, making remand appropriate. (See J.D., supra, 70 Cal.App.5th at pp. 863-864.) And as discussed, there is no dispute that the juvenile court found the visitation element of the test satisfied, but the question is whether the court considered improper factors in analyzing the second and third elements of the test.
For these reasons, and because the parties and the juvenile court did not have the benefit of our Supreme Court's decision in Caden C., we will reverse and remand for a new section 366.26 hearing in accordance with Caden C. and the views discussed in this opinion.
DISPOSITION
The order terminating father's parental rights is reversed and the matter is remanded for the juvenile court to conduct a new section 366.26 hearing consistent with Caden C., supra, 11 Cal.5th 614, and the views expressed in this opinion. The parties may introduce such additional relevant evidence as they deem necessary, including but not limited to evidence of the family's current circumstances and any developments that might have occurred during the pendency of this appeal.
We concur: Kline, P.J. Stewart, J.