Opinion
A162268
01-30-2022
In re M.A. et al., Persons Coming Under the Juvenile Court Law. v. M.T., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. Nos. JD-031229-01, JD-031230-01)
STREETER, J.
M.T. (Mother) appeals an order terminating her parental rights to M.A. and A.T. (Minors) at a Welfare and Institutions Code section 366.26 hearing (.26 hearing). The Minors are, respectively, ages three years 11 months, and two years 18 months. The dependency court terminated both parents' parental rights and chose adoption as Minors' permanent plan.
All subsequent statutory references are to the Welfare and Institutions Code.
Only Mother appeals. The sole issue is whether the court erred in finding that Mother failed to prove the applicability of the parental beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i). She contends the court improperly relied upon her struggles with methamphetamine addiction, a serious problem in her life that she has been unable to overcome and that prevented her from reunifying with Minors. Despite Mother's continuing struggles with addiction, she claims that she visited Minors consistently after their removal from her custody, that she has been able to establish a substantial, positive parental bond with them, and that breaking this bond would cause harm to them that outweighs the benefits of adoption.
Mother's argument centers on the Supreme Court's recent opinion in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which came down after the .26 hearing. Contrary to the Supreme Court's guidance in Caden C., Mother argues, the dependency court categorically barred her from establishing the right to maintain a continuing relationship with her daughters under the parental beneficial relationship exception based on the same factors that prevented her from reunifying.
We will reverse. As our colleagues in Division Two explained in In re J.D. (2021) 70 Cal.App.5th 833 (J.D.), reaching the same disposition we do here, "we cannot determine on this record that the juvenile court's ruling complied with the principles announced in [Caden C.]. Although we recognize it is in [the Minors'] interest to expeditiously select [their] permanent plan, the interests at stake when parental rights are terminated are of the utmost importance to both parent and child, and proper consideration of the factors deemed relevant by our dependency scheme is vital." (Id. at p. 840.) So we remand for a new .26 hearing in light of the guidance Caden C. has provided.
I.
There is no need to recite in detail the history of these dependencies. A brief summary will suffice. Minors were removed from Mother's custody in June 2019 following the filing of a section 300 petition by Alameda County Social Services Agency (Agency). They were at first placed in the home of L.J., a nonrelative caregiver whose daughter is Mother's best friend, but then, when L.J. and her husband indicated they would be unable to provide long-term permanency for Minors, Minors were moved to their current placement with Mother's paternal aunt and her husband, who are interested in adopting.
The section 300 petition initiating these proceedings sought to have dependencies declared with respect to M.A. and A.T. as well as an older daughter, then 13 years old, but all allegations with respect to her were eventually withdrawn. The status of this third daughter, who appears to be living with the maternal grandmother, is not at issue in this appeal.
It is undisputed that, before and after Minors were declared to be dependents, Mother was a regular user of methamphetamine; that, during the 12-month reunification period, her multiple, half-hearted efforts to engage in drug rehabilitation, both in inpatient residential programs, and in an outpatient program, all failed; and that she regularly tested positive for drug use during the reunification period.
It is also undisputed that Mother visited Minors consistently following their removal from her care; that Mother said "she'd never be high and parent her kids"; that she brought the Minors gifts, played with them, performed parental tasks such as diaper changing and feeding, and demonstrated love and affection toward them; and that Minors recognized Mother as their mother, were happy to see her when she arrived for visits and were comfortable in her company.
While Mother at first made some progress in meeting her reunification case plan-a major element of which was successful completion of drug rehabilitation programming-by January 2021 it was clear she had again relapsed into drug use and had complied only partially with her case plan. The Agency submitted a status review report to the court in April 2020 recommending termination of reunification services, and at the combined 6-month/12-month review hearing in August and September 2020, the court terminated services and set a .26 hearing.
In December 2020, in advance of the .26 hearing, the Agency prepared an assessment report recommending that Mother's parental rights be terminated and that the court maintain the Minors' dependencies until a permanent placement was finalized. The report further noted that the Agency's proposed permanent plan was adoption by the paternal aunt and her husband. The report noted that Mother did not agree with this recommendation.
Mother filed a prehearing request that the court make M.A. available for a bonding study. Although the court expressed concerns about whether a bonding study would be helpful to it in the factfinding process, it granted Mother's request and ordered that M.A. be made available for such a study.
To conduct the bonding study, Mother's counsel hired Dr. Hugh Molesworth, the same expert whose testimony was presented at the .26 hearing in Caden C. Dr. Molesworth ultimately concluded that there was a substantial, emotionally positive bond between Mother and M.A., despite Mother's drug problems, and that the severance of that bond would cause substantial detriment to M.A. He delivered that opinion in his testimony at the .26 hearing.
Over the course of the hearing, the court heard testimony from five witnesses: two case workers who were assigned to the case during different, overlapping periods of time, L.J., Dr. Molesworth, and Mother herself. The court also admitted into evidence, among other documentary exhibits, Dr. Molesworth's bonding study and ten Agency reports to the court that had been prepared during the course of the proceedings.
In closing argument, counsel for the Agency began by contending that the Minors were adoptable. Agency counsel then stated that the beneficial relationship exception should not apply because the benefit that the Minors received from their relationship with Mother did not outweigh the benefit that they would receive from a stable and permanent home. Agency counsel also noted that Dr. Molesworth's bonding study relied on interviews with potentially biased individuals, such as L.J. and her daughter, which could have skewed the conclusions of the study in favor of finding a substantial and positive bond.
On the threshold issues of adoptability and termination of parental right, Minors' counsel agreed with counsel for the Agency and argued that the court should find both Minors adoptable and terminate Mother's parental rights. Minors' counsel then argued that the beneficial relationship exception required more than "frequent and loving contact," and noted that while the evidence before the court suggested that M.A. enjoyed her visits with Mother, these visits did not rise to the level of benefit necessary for application of the limited beneficial relationship exception. Minors' counsel also noted that while the bonding study found that severing the parent-child relationship could result in some negative impacts, none of these impacts were specific to M.A. and were instead "risks that were general and shared by all children who are adopted."
Mother's counsel argued that the court should apply the beneficial relationship exception and decline to terminate Mother's parental rights. According to Mother's counsel, Mother visited consistently with the Minors and Mother occupied a "parental role" in the Minors' lives. She emphasized the positive reactions that M.A. allegedly had to Mother during visitation and noted that Dr. Molesworth had concluded that M.A. and Mother had a "substantial positive parental bond." Relying on Dr. Molesworth's opinion, Mother's counsel argued that Mother's struggles with addiction did not overcome the evidence of a substantial positive bond between Mother and M.A., and that the severance of the relationship would cause M.A. detriment. She asked the court to opt for a permanent guardianship so that Mother's parental relationship with Minors could continue.
At the conclusion of argument, the court found that Minors were adoptable and that Mother had failed to prove the applicability of the parental-benefit exception. Based on those findings, the court terminated Mother's parental rights and selected adoption as the Minors' permanent plan. The court gave extended remarks to explain its findings, focusing mostly on the parental-benefit exception, which was the principal disputed issue.
The court noted that, to find the parental-benefit exception applicable, the court must conclude that "the benefit of the parent/child relationship outweighs the benefits of adoption." The court reviewed the testimony of the witnesses and found the testimony of both child welfare workers and L.J. to be credible. The court found that Mother's testimony was not credible, noting inconsistencies between Mother's testimony that she had not been using drugs recently and a positive drug test from late January of 2021.
The court described Dr. Molesworth's testimony as "illuminating," but stated that the bonding study was based on inaccurate information, such as Mother's self-reported history of drug abuse and the length of time that M.A. was in Mother's care. The court also questioned the bonding study's conclusions, given Dr. Molesworth's reliance on information supplied by L.J. and L.J.'s daughter, both of whom the court noted "might lack objectivity" because of their longstanding friendship with Mother.
After hearing closing argument, the court announced its ruling, finding that there was not a substantial bond between Mother and Minors. The court acknowledged the demonstrated love and affection between Mother and Minors, but found that "there is insufficient evidence that [Mother's] relationship with [the Minors] outweighs their need for permanency and stability, which [M]other cannot offer."
The court concluded by stating: "[Mother] cannot seem to shake or beat the drugs. And for that reason, the court is adopting the recommendations set forth in the section 366.26 report prepared for [the] December 15, 2020 [hearing]." After entry of an order to that effect, this timely appeal followed.
II.
A.
While Caden C. clarified the application of the parental-benefit exception in several important respects, it did not fundamentally change the nature of the analysis governing the exception. Recognizing that adoption is a legislative preference, it is still the law that the exception is to be utilized only in" 'exceptional circumstances.'" (Caden C., supra, 11 Cal.5th at p. 631.) And it is also still law that parents facing termination of their parental rights and seeking to invoke the exception have the burden of proving the exception. (Id. at pp. 636-637.) That burden is met only when the legislative preference for adoption has been overcome by evidence of a sufficiently strong parent-child bond to justify the conclusion that breaking the bond would be so detrimental to the child that the severance detriment outweighs the benefit of permanency in an adoptive home. (Id. at pp. 629-631.)
More specifically, "[T]he 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." (Caden C, supra, 11 Cal.5th at pp. 636-637.)
The first two of these three elements are essentially factual. "The third element-whether termination of parental rights would be detrimental to the child-is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child's relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence." (Caden C., supra, 11 Cal.5th at p. 640.)
"Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that's inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child's life would be like in an adoptive home without the parent in his life. [Citation.] The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 640.)
On appeal, "a substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child 'consistently,' taking into account 'the extent permitted by the court's orders' [citation] is essentially a factual determination. It's likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it. [¶] The third element-whether termination of parental rights would be detrimental to the child-is somewhat different." (Caden C., supra, 11 Cal.5th at pp. 639-640.) We review for abuse of discretion the court's "delicate balancing" of the child's need for stability and permanency against the value of maintaining the vestiges of a true biological parental relationship, with a steady focus on whether termination of that relationship would be detrimental to the child to a degree outweighing the benefits of adoption. (Id. at p. 640.)
B.
Mother's Caden C. argument focuses heavily on the testimony and conclusions of the bonding study expert, Dr. Molesworth. Here, as he did in Caden C., Dr. Molesworth found that there was a substantial and positive parental bond. One of the biggest problems for Mother in this appeal is that the court declined to credit this testimony. We cannot second-guess that determination. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 ["We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts."]; see Caden C., supra, 11 Cal.5th at p. 640.)
It is within the dependency court's discretion as the trier of fact to assign weight and credibility to all evidence and testimony, even evidence and testimony presented by an expert witness. (People v. Jones (2012) 54 Cal.4th 1, 59 ["Once an expert witness establishes knowledge of a subject sufficient to permit his or her opinion to be considered by a jury, the question of the degree of the witness's knowledge goes to the weight of the evidence and not its admissibility."]; People v. Brown (2014) 59 Cal.4th 86, 106 ["The final determination as to the weight of the evidence is for the jury to make."].) While the court described Dr. Molesworth's testimony as "illuminating," it ultimately found "numerous elements of the factors [upon which Dr. Molesworth relied in] finding a substantial bond . . . to be weak or deficient in this case."
As the dependency court noted, Dr. Molesworth relied on incorrect or incomplete information with respect to Mother's history of substance abuse. "[D]uring the pendency of our contest," the court observed, Mother "tested positive for substances, and Dr. Molesworth wasn't made aware of this, and he did testify that, if he knew that, it might change his opinion . . . ." The court further noted that Dr. Molesworth stated in his report that M.A. had been "in her mother's sole care" "for the first sixteen months of her life," when in fact Mother lived with M.A. at L.J.'s home for the first five weeks of M.A.'s life and relied on L.J. for much of M.A.'s care during that time. While Mother was certainly one of M.A.'s primary caretakers during this brief period, Mother's own testimony contradicts Dr. Molesworth's understanding that Mother had ever been "sole" caretaker for a substantial period. Given these inconsistences, the dependency court, as the trier of fact, properly discounted Dr. Molesworth's opinion based on deficiencies in its factual foundation.
In assessing evidence of a beneficial relationship, the length of a child's life spent in the parent's care is one factor to consider. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) In this case, both Minors have spent more time outside of Mother's custody than in Mother's custody. At the time of the court's ruling, A.T. had been out of Mother's custody for her entire life, while M.A. had been out of Mother's custody for 21 months. In instances where courts have found a beneficial relationship, the parent has often acted as the child's primary caretaker for a substantial portion of the child's life. (See, e.g., J.D., supra, 70 Cal.App.5th at p. 855 [finding a beneficial relationship where the child "had lived with [his] mother for just over half of his life"]; In re S.B. (2008) 164 Cal.App.4th 289, 298-299 [finding a beneficial relationship where the father of a five-year-old child was the child's primary caregiver for three years]; In re Amber M. (2002) 103 Cal.App.4th 681, 689 [finding a beneficial relationship where two of the mother's three children had been in the mother's care for most of their lives].) Here, the court properly considered Mother's limited time occupying the role of a primary caregiver to the Minors as evidence cutting against the existence of a strong enough beneficial relationship to justify the conclusion Dr. Molesworth drew.
In addition to Dr. Molesworth's opinion, Mother points to the testimony of L.J., who acted as the Minors' caregiver for a substantial portion of the Minors' time as dependents. While observing that it found L.J. to be a credible witness, the court also noted L.J. was likely biased in favor of Mother's retention of her parental rights. As the court pointed out, L.J. testified that [L.J.'s] "long-term relationship with the mother and almost a quasi-maternal role herself does affect her ability to see [Mother] for who she. . .is as a parent in this case. I think [L.J.] would love for [Mother] to not have her parental rights terminated and to have her children return[ed] to her because she loves [Mother]." It is within the court's power as the trier of fact to assign weight to testimony and evidence based on perceptions of bias. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1012 ["Bias is a question of credibility to be resolved by the trier of fact."].)
Finally, Mother relies on her own testimony in arguing that the court ignored substantial evidence illustrative of a positive bond between Mother and the Minors. The dependency court, however, explicitly found Mother not to be a credible witness. The court observed, for instance, that Mother testified while under oath in early February 2021, that she had not been using drugs recently, despite testing positive for methamphetamines in late January 2021. Given the inconsistences in Mother's testimony, it was within the court's discretion to discredit Mother's testimony based on a finding that she was not a credible witness.
There was considerable evidence before the court suggesting that the relationship between Mother and the Minors, while pleasant and loving, never rose to the level necessary to constitute a sufficiently beneficial relationship to trigger the parental-benefit exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) As the California Supreme Court has held, "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A beneficial relationship is more than just a loving relationship-it is a relationship that results from the parent's "attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (Ibid.)
Whether Mother provided this kind of attention to the Minors was disputed. One of the case workers testified, for example, about instances where the parental aunt and her husband expressed concerns regarding Mother's failure to give the Minors a bottle, or change their diapers, during some visits. The other case worker testified that Mother's continued substance abuse made it difficult for Mother to provide proper attention to Minors on a consistent basis, even if Mother were not necessarily under the influence at the time of the visits. As this case worker testified, when someone is abusing substances, "their focus . . . [is] on maintaining that addiction . . . and not meeting their children's needs." That is different from a blanket, morally inflected judgment that exposure to a drug-afflicted parent is not and can never be beneficial to the child.
In the absence of new guidance from the Supreme Court, we would be inclined to affirm the dependency's court's fact-finding as to the weak bond between Minors and Mother under a straightforward application of substantial evidence review. A significant problem here, however, is that to resolve the factual dispute over whether Mother's relationship with Minors was deep enough to trigger the parental-benefit exception, Minors' counsel invited the dependency court to take into account the fact that Mother "has demonstrated no likelihood that she will resolve the issues that brought these girls to the court's attention such that they could ever, much less in a reasonable time, be returned to her care." Caden C. made clear that "[W]hether the parent is or is not 'ready for the children's return to her custody' is not, by itself, relevant to the application of the parental-benefit exception." (Caden C., supra, 11 Cal.5th at p. 638.) Because of the heavy weight the court appears to have placed on Mother's inability to overcome her drug problems, we cannot determine from the record whether the court's factual determination at step two of the Caden C. analysis was driven by whether she is, or would ever be, fit to parent Minors on a full-time basis, which would be a legally improper consideration.
C.
Even if we were to accept that there was substantial evidence to support the court's factual determination at step two of the section 366.26, subdivision (c)(1)(B)(i) analysis, there is a more fundamental problem here. Mother correctly points out that Caden C. overruled a number of cases where lower courts have erroneously given dispositive weight to struggling parents' failure to overcome problems which led to a declaration of dependency over their children, effectively making it impossible for those parents to meet the burden of proof at step three of the parental-benefit analysis. That is what the court did here, Mother argues, by improperly relying on her drug addiction as the sole reason for rejecting the beneficial relationship. While we do not necessarily agree with that reading of the record, we see the court's treatment of the step-three balancing process as problematic for much the same reason we outlined above with respect to step two. Given the arguments advanced in support of the Agency's position, and the court's apparent heavy reliance on Mother's failure to overcome her addiction, we are unsure whether the court effectively placed so much weight on Mother's drug use that it failed to conduct a proper assessment of Mother's positive and negative traits in weighing whether the detriment to Minors of severing their alleged bond with her outweighed the benefits of permanency.
The accuracy of the step-three balancing process is central to the holding in Caden C. The main premise of that case is that all parents seeking to invoke the parental-benefit exception, by definition, have shown themselves to be incapable of taking parental custody, due to drug addiction or for any number of other reasons. Even a deeply flawed parent in those circumstances, the Supreme Court explained in Caden C., may share an important emotional bond with his or her child. (Caden C., supra, 11 Cal.5th at p. 643 [parental-benefit "exception preserves the child's right to the [parental] relationship even when the child cannot safely live with that parent. What it does not allow is a judgment about the parent's problems to deprive a child of the chance to continue a substantial, positive relationship with the parent."].)
Mindful of this premise, what Caden C. held is that, at the third step of the parental-benefit analysis-the difficult and subtle process of weighing benefit against harm in an assessment of the child's future, where the court must imagine what life will be like for the child, with and without the parent in her life-failure to overcome problems that prevented the parent from reunifying may not be used as a categorical bar to success under the parental-benefit exception. (Caden C., supra, 11 Cal.5th at pp. 640, 635 [describing balancing process concerning "inherently uncertain" future course of events in which the court may conclude that "terminating a relationship with negative aspects would have some positive effects that weigh in the balance-and may tip it in favor of severing the parental relationship to make way for adoption"].) The court did not hold that drug use or any other continuing struggles that made reunification impossible may never be taken into account. Rather, Caden C. holds that if such struggles are deemed relevant, the court must consider whether they "may mean that interaction between parent and child at least sometimes has a' "negative" effect' on the child." (Id. at p. 637.) As we read Caden C., therefore, a parent's continuing drug use may be relevant, but relevant in a particular way, i.e., it could interfere with the relationship between the parent and child, or it could cause the child to have negative feelings towards the parent that interfere with the bond between them.
Upon a review of the entire record, we cannot determine whether the trial court conducted the step-three analysis in a manner that conforms with Caden C. At the end of the .26 hearing, in explaining its ruling, the court stated that: "[Mother] cannot seem to shake or beat the drugs" and "for that reason" (italics added) it was adopting the Agency's recommendation. The definitiveness of this statement is arguably reason enough to reverse, but Mother also points out that Agency counsel cited and invited the dependency court to rely upon In re Noah G. (2016) 247 Cal.App.4th 1292, a case in which a mother seeking to invoke the parental-benefit exception suffered from continuing struggles with drug addiction, as does Mother in this case. There, the Court of Appeal held that "drug abuse is evidence continuing the parent-child relationship would not be beneficial." (Id. at p. 1304, italics in original.) Noah G.-which illustrates the kind of blanket judgment, implicitly rooted in moral condemnation-that Caden C. decried, is no longer good law on this point. Caden C. expressly overruled it. (Caden C., supra, 11 Cal.5th at p. 637, fn. 6.) This, fundamentally, is where the appellate panel in Caden C. went wrong as well. The Supreme Court reversed because the panel there made the sweeping judgment that no reasonable trial judge could have applied the parental-benefit exception on a record where the appellant mother had" 'disengage[d] from [her] treatment and case plan, [demonstrated] inability or unwillingness to remain sober, and [shown] deficient insight regarding her parenting.'" (Id. at p. 642.) The Court of Appeal's error was in failing to connect the issue of drug use to its ultimate conclusion on the issue of severance detriment.
To ensure that the dependency court did not make a blanket judgment that Mother's continuing struggles with drugs disqualified her from successful invocation of the parental-benefit exception, without any consideration of the potential negative effect those struggles may have on the parent-child relationship in the future, we must reverse and direct the dependency court to hold a new .26 hearing. We emphasize that we are not implicitly making a judgment-one way or another-about the correct outcome on remand. We also acknowledge that the court has already taken a great deal of time to consider this case in the course of an extensive, multiday contest, and that it was careful to make specific credibility findings and to provide a thoughtful assessment of the weight it gave to the evidence presented. Of course, the court remains free to do that again on remand, but this time with the benefit of guidance from Caden C., while making sure to take all aspects of the relationship between Minors and Mother into account. For example, Mother's drug use may be a consideration, so long as it is not the only consideration, and, if it is to be taken into account on the negative side of the ledger, the court should consider what effect it may have on Minors in the future.
Evaluating what may happen within a parent-child relationship in the future, as the Caden C. court put it, is a "daunting" task. (Caden C., supra, 11 Cal.5th at p. 635.) But given the gravity of the issues at stake here, "proper consideration of the factors deemed relevant by our dependency scheme is vital" whenever a dependency court is called upon to undertake that task. (J.D., supra, 70 Cal.App.5th at p. 840.)
DISPOSITION
We reverse the section 366.26 order and remand for a new .26 hearing.
WE CONCUR: POLLAK, P. J., BROWN, J.