Opinion
A163417
02-22-2022
In re V.C. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. Vanity L., Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. JD03188201, JD03191801
RICHMAN, ACTING P.J.
Appellant Vanity L. (mother) is the mother of a three-year old daughter Z.C. and a two-year old son, V.C. Mother's parental rights were terminated at a Welfare and Institutions Code section 366.26 hearing and she appeals, arguing that the juvenile court improperly applied the law of the parent-child beneficial relationship exception as set forth in our Supreme Court's decision in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). We agree, and reverse.
Further statutory references are to the Welfare and Institutions Code.
BACKGROUND
The Family and the Petition
On December 2, 2019, the Alameda County Social Services Agency (the Agency) filed a petition regarding V.C., born that November, pursuant to Welfare and Institutions Code section 300, subdivision (b)(1). The petition alleged that mother tested positive for methamphetamine at V.C.'s birth, resulting in V.C. experiencing withdrawal symptoms. On December 11, the Agency filed a similar petition regarding V.C.'s older sister, Z.C., then 17 months old. Both petitions alleged that mother and the children's father John C. (father) "lack the basic items (clothes, diapers, food, car seat and crib) to care" for the children, and that their "current housing is temporary and unstable at this time." The petitions further alleged that mother had a history of methamphetamine abuse dating back to 2009 and had relapsed in 2019, and that father had a history of methamphetamine and marijuana abuse, although his current use was unknown.
On December 2 and 11, both children were detained and placed with a maternal relative. The juvenile court ordered supervised visits for the parents at least twice per week, for two hours per visit.
Jurisdiction and Disposition
On December 19, the Agency filed a jurisdiction/disposition report for both children, recommending that they remain in out-of-home care and that the parents receive family reunification services.
The social worker supervised three visits between the parents and children in December 2019 and stated that "[t]hese visits have been going well." "With [Z.C.], the parents play with her, talk with her, change her diaper and redirect her as needed. With [V.C.], they hold him, rock him, feed him and change his diaper."
On February 5, 2020, the Agency filed an addendum to the jurisdiction/disposition report, indicating that both parents had continued to test positive for amphetamines in December 2019 and January 2020. The caregiver reported that the parents "hold [the children] and take turns caring for [them]," and that the parents came to church "to make up visits, during which they held" the children.
A contested jurisdiction and disposition hearing was held on March 9, at which hearing the juvenile court found the allegations of the petition true and ordered reunification services for the parents. The court ordered the Agency to "arrange for visitation between [each] child and the mother and father as frequently as possible consistent with the child's well-being."
Six and Twelve-Month Review
On August 7, the Agency filed a status review report. The report indicated that the parents were without stable housing and were residing in a motel. Both parents were unemployed, and mother was caring for her own father. Neither parent had "consistently engaged in [their] case plan activities." Mother had "demonstrated a pattern of testing negative along with no-shows and a positive test on 03/27/2020 for methamphetamine/amphetamine." The Agency recommended that reunification services be terminated for both parents and that the court set a section 366.26 hearing.
With respect to visitation, the report stated that because of COVID-19 and the shelter-in-place order, in-person visitation was interrupted, and visits were being conducted by telephone, Skype, or Facetime. On June 27, mother and the caregiver arranged for an in-person visit for Z.C.'s birthday at a park near the caregiver's house, and in July, the caregiver agreed to weekly in-person visits for four to six hours, a plan that was subsequently adjusted to Monday visits for two hours. The report went on to state that "mother . . . is important in [Z.C.]'s life and has contact with her twice a week," that they "appear[] to be developing a healthy parent/child relationship . . . when they are together," and that both parents "appear to have a good relationship" with the children and "have been observed appropriately engaging (talking, playing, feeding, and changing diapers) with" the children.
A November 5 memorandum report added that on September 28, "the undersigned observed the parents interact appropriately with the minors (hugging, holding and talking)" and that "[o]verall, [the parents] appear to have a good relationship with [the children]." The Agency continued to recommend that reunification services be terminated for both parents and that the court set a section 366.26 hearing.
The six-month review hearing began on December 18, and continued on January 29 and February 19 and 22, 2021.
The Agency filed a 12-month status review report on January 15, in advance of the hearing set for January 29. The Agency continued to recommend that the court terminate reunification services for the parents and set a section 366.26 hearing. With respect to visitation, the report indicated that two visits took place between the parents and the children in December 2020. Although the parents were late to each visit, they "interact[ed] appropriately" with the children and brought them Christmas gifts. The social worker wrote that "[o]verall, [the parents] appear to have a good relationship" with the children.
On February 22, 2021, at the conclusion of the six- and 12-month review hearing, the juvenile court terminated reunification services for both parents and set a section 366.26 hearing for May 27.
Section 366.26 Report and Hearing
On May 12, the Agency filed its section 366.26 report. The report indicated that the parents began visiting the children once a week in March 2021, with four visits taking place in March and April. The report continued: "The visits are chaotic, albeit the parents are affectionate and loving with their children. [Z.C.] is often placed on time outs for not listening to her mother and is crying throughout portions of the visit. [Z.C.] occasionally hits her brother. The parents are constantly trying to placate [Z.C.] who seems to struggle with the lack of consistency, constant threats, the lack of direction and authority. [V.C.] is usually cared for by the father during the visits and seems content."
The 366.26 hearing began on June 30, with mother as the first witness, who testified at length, providing testimony that included the following:
Z.C., now three years old, lived with her and father for the first 17 months of her life. Prior to removal, mother and father were Z.C.'s sole caregivers, and Z.C. still called them "mommy" and "daddy." Z.C.'s first visit after removal was "a very emotional visit." She was "excited to see me, that she broke down in tears and didn't know how to react. She was smiling, laughing, and just full of joy." But "at the end of the visit she was distraught . . . me and my fiancé had to coerce her to get into the car, and just calm her down and just stop her from crying." Z.C. continued to react with "a lot of emotion" to mother's visits.
After the pandemic began in March 2020, mother's visits with the children became virtual. Mother testified that the "second [Z.C.] see[s] me on the phone she would scream, 'Mommy.' She would run to the phone. Any time we had to hang up she would get sad."
In June of 2020, mother had her first in-person visit with the children since the pandemic began, for Z.C.'s birthday. Mother testified that Z.C. "wouldn't let me go," "she ran up to me, she held me, I picked her up, and she stayed attached to me literally on my hip the whole day that she was there." When the visit ended, Z.C. "threw a fit," "did not want to go," was "screaming and crying the whole time," and had to be coerced into the car with a toy.
Also in June 2020, mother resumed in-person visits at the caretaker's house, once a week for four hours. Mother and the children would "go play at the park that was across the street from her house, or we'd be in her backyard. And I would bring a ball pit with balls so my daughter can play in it, because she was having issues with walking. So I was told [by her physical therapist] to help, get games that balance-help her with her balance. So I made sure I got things like a ball pit, anything to help her run, or to get her to run and walk so that she can learn how to get balanced better." Mother was told by the caretaker that Z.C. had a physical therapy appointment the same day as one of her visits, and so she attended. Mother continued in-person visits with the children until about a month before the hearing when she went on bedrest at the end of her pregnancy, never going more than two weeks without seeing them.
Concerning Z.C., mother testified that she would play with dolls or puzzles with Z.C. while her fiancé plays with V.C., and then they would switch. She would bring toys for the visits as well as a sleeping bag, because the visits took place during Z.C.'s naptime at school and mother "d[idn't] want to mess up her schedule." Mother testified that Z.C. was "very" physically affectionate with her, that "she wants to be in my arms when we're playing", and "likes to play with my hair, give me kisses, hug me if I'm laying down, trying to get her to lay down. She'll run and jump on me and lay on me, roll around with me, tickle me."
When asked about the end of their visits, mother said if Z.C. "knows ahead of time, she will start to get upset." She "acts out more, gets a little-I don't want to say violent, but she starts to like throw tantrums, doesn't want to move." Mother would carry Z.C. to the car and give her a snack or a toy at the end of their visits.
Mother also testified that when Z.C. fell down during parts of their visits when both she and the caregiver were present, "she looked up at both of us with kind of a confused look, and then she started to cry or whine a little bit, and ran to me," and "if I was there with the caregiver and it was both of us, she always chose me." Z.C.'s physical therapist came on the same day as certain of mother's visits, such that mother attended and participated in about four or five of those meetings. She also attended a doctor's appointment with Z.C. and the caregiver, during which "sat on my lap most of the time." Mother had also attended three of Z.C.'s speech therapy sessions, because she had appointments scheduled while they were doing a visit.
Father also testified that he had attended every visit with the children that mother had attended. When asked about the end of the first in-person visit in June of 2020, Z.C. "was extremely excited, very emotional. She was crying. She didn't want either of us to put her down. She wanted us to hold her and comfort her." He went on that Z.C. still "doesn't want to leave" at the end of visits, and she finds it difficult to end the virtual visits in the same way, becoming "upset" and "shutting down, get[ting] quiet."
After the testimony of mother and father, the court heard argument from counsel, beginning with counsel for the Agency.
The Agency's counsel began her argument regarding the parent-child beneficial relationship exception with citation to our Supreme Court's May 27, 2021 decision in Caden C. and its three-part test. While noting that "[a]rguably . . . the parents have maintained fairly consistent visitation allowed by the Court orders," counsel pointed out that the visitation never "progressed to unsupervised or overnight visitation." After identifying the factors to be considered at the second prong of the test as the "age of the child, and the portion of the child's life spent in the parent's custody[, ] [a]nd the child's particular needs," counsel argued that Z.C. had spent 17 months with mother, and 19 months in her current placement, and that V.C. had never lived in his parents' care. She described mother's relationship with Z.C. as that of a "friendly visitor." And based on the supervised nature of the visits, and the section 366.26 report's statement that "[Z.C.] is often placed on time outs for not listening to her mother and is crying [throughout] portions of the visit," she argued that the parents did not occupy a "parental role." In terms of whether it would be detrimental to terminate parental rights, she noted that both children were thriving in their placement, and that "[w]hile not dispositive," parents had failed to complete their case plan.
Counsel for the children similarly argued that the exception did not apply. She observed that Z.C. had spent more time in her current placement than with the parents. Like counsel for the Agency, she noted that certain visits had ended in "tears and fear." She argued that "[a]nother factor is to look to see if the relationship at issue is parental . . . not just an emotional bond," arguing that the children look to their caregiver for basic necessities and that "[t]here is no way a parent who sees his or her child in a supervised setting for a few hours a week can operate as the child's parent in the traditional definition." She noted that visitation had always been "supervised and/or observed." She concluded by arguing that there was no evidence in the record of an emotional attachment.
Mother's counsel argued the exception did apply, beginning by asserting that "there's no real question here that the parents have maintained visitation . . . throughout this case," and that "that's more or less conceded by all counsel." He noted that "there are two parents here who have made an extraordinary effort to maintain their visitation, despite it being at times virtual, at times outdoors for many hours," and that the various reports described only positive interactions between the parents and the children, with no "negative descriptors." He observed that mother testified "extensively, about the visitation [and] [t]here is no counter evidence," going on to discuss the evidence of Z.C. being physically affectionate with mother, and to her emotional reaction to visits ending. He argued that the visits were "parental" and not "friendly," pointing to the fact that Z.C. used the word "mommy," and to her difficulty ending the visits. With respect to the argument that Z.C. had spent more of her life in her current placement than with mother, he argued that the difference was only a couple of months and should not be determinative. He noted that when Z.C. sees her mother she is "extremely emotional." And he argued, with citation to caselaw, that neither the length of time spent in her current placement, the fact that caregiver was meeting Z.C.'s needs, nor the supervised nature of the visitation ruled out the applicability of the exception.
Father's counsel presented brief argument, largely joining in the argument of mother's counsel.
At the end of the hearing, the juvenile court took the matter under submission and set a further hearing for August 4 to issue its decision.
The Juvenile Court's August 4 Ruling
At the August 4 hearing, after finding that the children were adoptable, the juvenile court went on to find that the parent-child beneficial relationship exception did not apply, with this explanation:
"The only question for me is whether or not the parental-bond exception exists.
"Now I have to say the arguments are mostly as it relates to [Z.C.] [V.C.] is a harder argument of course for any attorney to make because he's been out of the home of the parents the entire time. Yes, they've been visiting and engaging, but he did not have an opportunity, based upon the circumstances, to have the same level of time or with the parents before being removed. And I don't think that there's much argument one way or the other from mother or father's counsel that there is a parental bond as it relates to the baby [V.C.] I just don't see it.
"As it relates to [Z.C.], I hear mom and dad's testimony so deeply that mom is actively involved with [Z.C.], tried very hard to engage herself where she could in medical appointments, et cetera, when she knew about them, or she'd happen to be at a visit and they were happening. The amount of time though that [Z.C.] has been out of the home of the mother is something for the Court to consider as well. I know it's basically a wash, but [Z.C.]'s been out of the home with mom and dad more than she has been in.
"The parents were lucky that there was the scenario where they could visit the children in the home of the caregiver, or outside of the home of the caregiver, which allowed them an opportunity to engage in things like physical therapy, et cetera, but I didn't take that testimony to be that mom was reaching out to the Agency asking if she could make multiple medical appointments, or be at every physical therapy appointment. It just so happened that she and dad were there during the physical therapy appointments. If I recall correctly, I was just checking my notes, I think it was at one doctor's appointment, and several of the physical therapy appointments, maybe four to five, that the parents were able to attend during this entire period.
"There has never been unsupervised visits or overnight visits with the children and the parents. It makes it hard for the Court to even help to make the argument. Sometimes I do that because I'm an old lawyer, to make the argument to support the parents' position that they have acted as if they're parents, that this bond is so significant that severing it would be detrimental to the minor.
"Every child that visits with parents has some transition period where there's crying, or maybe they're happy to see a parent. But the question is how do the children see their caregiver versus their parent?
"I appreciate the mother's testimony that she felt like [Z.C.] is confused sometimes when she and her-the maternal relative who is caring for the children are in the same place, but that's speculation. Like I don't have anyone here saying that that's the case other than mom. Any mother, including me, would feel like if I'm in the same space and place with my child, there's a deeper pull that I have with that child than anyone else does. And that any behaviors associated with the child are associated with the child because the baby misses me. I just think it's speculation. It's not enough for me to make a call that this bond is so significant that it would be detrimental to the children, specifically [Z.C.]
"Because I do think that the permanency that we're searching for for children is so important. And as hard as the parents are trying, [Z.C.] deserves that stability. She deserves to know that whomever is caring for her is going to be there day in and day out. Kids thrive under those circumstances.
"And it's awesome that the parents have been able to add to [Z.C.] and [V.C.]'s childhood experiences by being involved, and the family has allowed them to do that, but I don't think that there's sufficient evidence to support that there's a bond that would not allow the Court to terminate parental rights in this case.
"So the Court will follow the recommendations that are in the June-I think it's the June 30 report, 2021. That is the addendum report."
The court terminated mother and father's parental rights.
Mother filed a notice of appeal.
DISCUSSION
Applicable Law and the Standard of Review
On May 27, 2021, after the Agency's report was filed, but before the section 366.26 hearing began, our Supreme Court decided Caden C., supra, 11 Cal.5th 614, addressing the parent-child beneficial relationship exception. And after the juvenile court's ruling we filed our opinion in In re J.D. (2021) 70 Cal.App.5th 833 (J.D.), where 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-there, 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. (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 [that 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.)- decided after the section 366.26 hearing concluded but before the juvenile court made its ruling-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 pp. 1228, 1230.)
Analysis
Mother argues that-with respect to Z.C.-the juvenile court considered several factors improper under Caden C.: the children's relative bonding with the parents versus the caregiver, mother's failure to seek to attend Z.C.'s medical appointments, and the supervised nature of mother's visitation with the children. She also argues that the juvenile court did not analyze the exception under the three-prong test of Caden C., and that reversal is required because the juvenile court was not provided with an adequate assessment of mother's relationship with the children by the Agency. Mother does not challenge the juvenile court's termination of her parental rights with respect to V.C., but argues that if we reverse the order with respect to Z.C. we should reverse with respect to V.C. as well to permit the children to be considered together.
The Agency's brief does not address this issue.
The juvenile court did not discuss or make any findings regarding the first element-regular visitation. However, counsel for the Agency conceded in her argument that "the parents have maintained fairly consistent visitation allowed by the Court orders," and the juvenile court acknowledged that the parents had been "visiting and engaging" with V.C. In its brief, the Agency states that "[t]he parties . . . agreed that Mother had satisfied the first element of the beneficial relationship exception, which the record before the juvenile court accurately reflects."
Accordingly, we turn to the second and third elements of Caden C.'s test. And with respect to those 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 discuss or make any express findings on either of these elements of the test, and it not clear whether it found the second or third element unsatisfied, or both. At various points, the juvenile court phrased the question with parts of the second and third elements, including as whether "there is a parental bond as it related to [V.C.]," whether "this bond is so significant that severing it would be detrimental to the minor," and whether "there's a bond that would not allow the Court to terminate parental rights in this case."
But in any event, in its discussion of the exception overall, the court appeared to base its decision on several factors improper under Caden C.
To begin with, the first two paragraphs of the juvenile court's ruling discussed mother's attendance at Z.C.'s medical appointments, emphasizing that mother attended those appointments by happenstance, as opposed to "mom . . . reaching out to the Agency asking if she could make multiple medical appointments, or be at every physical therapy appointment." But mother's attendance at Z.C.'s medical appointments, and in particular whether she sought to attend them, was an improper consideration to the extent that it showed that Z.C. "looked to [her caregiver], not mother, for comfort, support, structure and to meet [her] needs" (J.D., supra, 70 Cal.App.5th at p. 859), or similarly mother's "inability to attend to the children's day-to-day needs" (B.D., supra, 66 Cal.App.5th at p. 1229). Indeed, recently in In re D.M. (2021) 71 Cal.App.5th 261, the Second District Court of Appeal found that substantial evidence did not support the juvenile court's finding that the exception did not apply where the court found that the father" '[d]oesn't know his children's medical needs. Hasn't attended any dental or medical appointments. He never asked anyone to attend. Has not risen to the level of a parent.'" (Id. at pp. 268, 270.) By "equating [a parental role] with attendance at medical appointments," the court improperly "focused on a parent's ability to care for a child or some narrow view of what a parent-child relationship should look like," while saying nothing about the proper question of "whether there is a substantial, positive emotional attachment between the parent and child." (Id. at p. 270.) So too here.
The Agency offers two arguments in response, neither of which is persuasive. First, the Agency argues that the court did not actually place any reliance on mother's attendance at medical appointments, because the court went on-after noting the supervised nature of the parents' visitation-to suggest that these factors did not support the "parents' position that they have acted as if they're parents, that this bond is so significant that severing it would be detrimental to the minor." But if the court did not rely on mother's attendance at medical appointments, what was the connection between that attendance and the bond between mother and the children? The juvenile court did not explain, and neither does the Agency.
The Agency next argues that the court could properly consider mother's attendance at Z.C.'s medical appointments as part of determining whether the relationship was "parental" in nature under In re Autumn H., supra, 27 Cal.App.4th at p. 576, which found sufficient evidence that the exception was inapplicable where the "relationship was one of friends, not of parent and child." But as we explained in J.D., "parental" is a descriptor that is "vague and unhelpful" in this context: the question is 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., supra, 11 Cal.5th at p. 636) and "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" (J.D., supra, 70 Cal.App.5th at p. 865; see In re L.A.-O. (2021) 73 Cal.App.5th 197, 211-212 [" 'parental role,' standing alone, is ambiguous" and improper to extent it focuses on whether parents "were not capable of taking custody, or had not been good parents, or had not been providing necessary parental care"]). The Agency's suggestion that attendance at Z.C.'s medical appointments satisfy this test because it is "parental" in nature fails to persuade us that the juvenile court did not rely on improper factors.
The juvenile court went on to note the fact that the parents never progressed from supervised to unsupervised visitation with the children, a consideration that we previously found an improper under Caden C. (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"].) The Agency concedes that "the fact that visits never progressed beyond supervised cannot act as a bar, in and of itself, to application of the parental benefit exception," but argues that "it is relevant to the extent that the quality and nature of the visits impacts the relationship between the parents and the minor." Perhaps, but again, the Agency does not articulate this connection, and neither did the juvenile court. Instead-in a two-sentence paragraph-the juvenile court simply noted the lack of unsupervised visitation and concluded that it did not mean that "[the] bond is so significant that severing it would be detrimental to the minor." We are not persuaded the court did not rely on this improper factor.
Finally, the juvenile court turned to mother's testimony that Z.C. was "confused" when she was together with mother and the caregiver in the same place, testimony that the court dismissed as "speculation." Certainly the juvenile court was entitled not to credit this portion of mother's testimony, but doing so does not explain the juvenile court's findings, especially given the balance of the evidence before the court. As noted, mother and father were the only witnesses at the hearing, and the Agency does not identify any aspect of their testimony that did not support application of the exception. The various written reports in evidence, although limited in their discussion of the relationship between mother and the children, described that relationship as "good" and "healthy," with the parents interacting and engaging "appropriately" with the children. As in B.D., supra, 66 Cal.App.5th at p. 1229, "our review of the record suggests that the parents presented evidence to support a finding that they had a beneficial relationship with their children, should the juvenile court credit that evidence."
In arguing that the juvenile court complied with Caden C., the Agency points to the court's consideration of the time Z.C. spent living with mother compared to the time spent in her current placement-a proper factor under Caden C. But this was a factor that the juvenile court characterized as a "basically a wash," and which was in any event not determinative. (See In re E.T. (2018) 31 Cal.App.5th 68, 77 [where children had spent 24 months with current caregivers and 22 months with mother, "difference of a couple of months is not so significant here that it would be determinative in favor of termination"].) The Agency also argues that "the court also appropriately considered Z.C.'s actions during the visits in determining whether the visits with Mother had a positive or negative overall impact," pointing to the court's mention of mother's testimony that Z.C. was "confused" when together with mother and the caregiver. But this was the same testimony that the court dismissed as "speculation." Beyond this, the record does not support the Agency's argument that the court gave any consideration to the "positive or negative overall impact" of mother's visits.
We reject the Agency's argument that any error was harmless because substantial evidence supports a finding that the second and third prong of Caden C.'s test were not satisfied. As we have discussed, the juvenile court's ruling appears to be based on improper factors, and the record contains evidence supporting application of the exception. We cannot say that there was no reasonable probability of a different result if the court had conducted a proper analysis under Caden C. And even if there is otherwise substantial evidence in the record that would support a finding that the exception does not apply, the juvenile court still abuses its discretion by relying on improper factors. (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"].)
Finally, because we conclude that the order terminating mother's parental rights with respect to Z.C. must be reversed, we will reverse the order as to V.C. as well in order to permit the juvenile court to consider the children together, and should the court find the exception applicable to Z.C. at the new section 366.26 hearing, to consider the effect on that finding on V.C.'s dependency as well. (See, e.g., § 366.26, subd. (c)(1)(B)(v) [child-sibling relationship exception to termination of parental rights].)
For these reasons, and because the parties and the juvenile court did not have the benefit of recent cases interpreting the 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.
Given our conclusion, it is unnecessary for us to reach mother's argument that the Agency's section 366.26 report did not provide adequate information about the emotional attachment between mother and the children.
DISPOSITION
The order terminating mother and 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: Miller, J. Mayfield, J. [*]
[*]Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.