Opinion
A167508
11-15-2023
In re A.M., a Person Coming Under the Juvenile Court Law. v. J.M., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J2100243
BANKE, J.
J.M. (father) appeals from an order terminating his parental rights to his child, A.M. (minor). Father asserts the juvenile court erred in not finding the beneficial parent-child exception applicable. We affirm.
Background
After a positive toxicology report revealed mother had THC, methamphetamines, and amphetamines in her system, and one-day-old A.M. had amphetamines and methamphetamines in his system, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (j). The petition alleged, among other things, a failure to protect due to father's substance abuse, which impaired his ability to provide care and proper supervision for minor; a failure to comply with father's intensive family services case plan; and an abuse of a sibling because mother and father had placed minor's two-year-old sibling J.M. at substantial risk of harm and neglect by engaging in a physical altercation in the presence of the sibling.
Mother is not a party to this appeal, and we recount only those facts relevant to the issue on appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Bureau had received prior referrals in May, August, and November 2020. The first was determined to be unfounded. However, the second and third referrals-which were for "general neglect" stemming from a report of a physical altercation occurring between mother, father and paternal step grandparent while in front of minor's sibling-were found to be substantiated. These allegations ultimately resulted in parents being "invited to participate in [a] voluntary Intensive Family Services" case plan. As part of the plan, the Bureau requested that parents drug test, which father had been unable to do because of a trip. Although the case "was progressing," parents "were not making significant progress," as they were "engaged in services, but not making the appropriate behavioral changes" the Bureau "needed to see to close the case to address the concerns about their domestic violence and substance use."
In its detention and jurisdiction report, the Bureau recommended the court sustain the allegations in the petition as to father. Initially, father denied any substance use, other than marijuana, and also denied mother had used substances. He suggested her positive test for methamphetamines and amphetamines "could have been from marijuana that they bought." In a subsequent interview, father admitted he "did lie" when he told the social worker "mother may have smoked marijuana laced with methamphetamines." He maintained "he and mother were 'at their lowest of lows' when the[y] made the choice to consume methamphetamines." He explained they had been "spending time with friends and that he had a 'moment of weakness,'" but that it" 'was the only time'" they had used "during mothers' pregnancy."
The court found there was a substantial danger to the physical health of minor, there were no reasonable means by which minor's health could be protected without removing him from parents' physical custody, and reasonable efforts to prevent or eliminate removal had been made. The court ordered alcohol and drug testing, substance abuse treatment, parenting education, and domestic violence services for father, and supervised in-person visitation between minor and father. The court set the matter for a jurisdiction hearing.
At the subsequent jurisdiction hearing, the court sustained the amended counts as to father and set the matter for a disposition hearing.
The original section 300, subdivision (b) count as to father read, "The child's father . . . has a serious substance abuse problem that impairs his ability to provide care and proper supervision to the child in that, on or about April 2021, the child's father failed to comply with the Intensive Family Services case plan that included random drug testing and the child's father is actively using THC and methamphetamine." This count was amended to strike the word "serious" and the portion of the allegation that reads "and the child's father is actively using THC and methamphetamines" from the count. The original section 300, subdivision (j) count as to father read, "The child's father . . . has placed the child's sibling at substantial risk of harm and neglect by engaging in multiple acts of physical violence with the child's mother and paternal relatives in the presence of the child's sibling." This count was amended to read, "The child's father . . . has placed the child's sibling at substantial risk of harm and neglect by engaging in a physical altercation on or about 8/27/20." (Boldface added.)
In its disposition report, the Bureau recommended the court order reunification services for father.
The Bureau explained both A.M. and his sibling J.M. were "placed into protective custody due to concerns regarding both parents' sobriety and substance abuse issues, and lack of engagement in their [Intensive Family Services] Case Plan revolving around domestic violence." Accordingly, the Bureau had provided father with referrals to parenting education classes, counseling services, domestic violence/anger management services, drug testing, and substance abuse treatment. Father was pursuing another "avenue for therapy," but had not yet provided verification to the Bureau of his enrollment.
Father denied "having a current substance abuse issue" or "a history of substance use, outside of marijuana." He explained he is drug tested for his employer, and that his employer "would not let him work if he did have a substance abuse issue." Of five scheduled drug tests for the Bureau, father had not shown for two, canceled one, tested negative once, and shown up for one but reported "he felt sexually harassed by the observer" and refused to test.
Father denied any "active domestic violence" between him and mother, although admitted they "do argue and have disagreements, but it has never been in the presence of their children." Father explained parents had had a "good relationship" until 2018, when he was arrested for a "hit and run incident." After the incident, father felt maternal relatives began to discriminate against him, which "would lead to arguments" between mother and father. Father was nevertheless "willing to engage in services to learn about the impacts of domestic violence" and how to prevent it from occurring.
The Bureau observed A.M. and J.M. were now placed with a maternal relative-their third placement since coming into foster care.
Minors were moved from their first placement because of the Bureau's concerns about the foster parent's ability to provide care for the children. The second placement had recently given 14-day notice for the children to be moved because of J.M.'s "behavioral issues."
The court found minors to be persons described by section 300, subdivisions (b) and (j), adjudged minors dependents of the court, ordered reunifications services, and set the matter for a six-month review hearing.
In its six-month review report, the Bureau recommended termination of services to father and that the court set a section 366.26 hearing.
The Bureau had received verification that father had attended four sessions with a counselor, although it had not received information regarding father's "participation during sessions." Father then reported he was seeing two new therapists. However, the first stated he had only spoken with father "for an intake but only half of it was completed," and father never returned, and the second stated "she does not know who [father] is as he is not on her caseload."
In August 2021, mother had left father after "two domestic violence episodes." The first had occurred in the Children and Family Services parking lot before a scheduled visit with the children. The social worker noted she had attempted "to problem solve with the parents" during the first incident but mother "chose to leave with her husband."
In the second incident, on the same day, parents were in the car and mother was on a "Zoom meeting for her outpatient substance use program." While on the call, mother's counselor "called police after she witnessed [mother] being hit by another individual in the car." Father was taken into custody but not charged, and an "Emergency Protection Order was granted to [mother.]" Parents disagreed on what happened, with mother reporting father as "the aggressor" in both incidents, while father reported mother was "the aggressor." Mother later filed for and was granted a temporary restraining order. Father also filed for a restraining order, and when he served mother "another confrontation occurred." Although it was unclear "who instigated the conversation," both parents reported "yelling was present" and that "they each . . . felt they were being threatened."
A domestic violence assessment was scheduled but not completed because father had been placed on a psychiatric hold. After a rescheduled assessment, the therapist concluded this "case is a concerning one" and reported father's" 'functioning seems clearly problematic . . . [and his] behaviors may have a mental health genesis, or be byproducts of methamphetamine related influence, addiction, acute withdrawal, and/or post-acute withdrawal.'" Father alternatively told the therapist he did not use methamphetamines and he may have accidentally ingested the drug, "stating that his marijuana may have been laced with the drug." The therapist opined that "without treatment for his mental health and substance usage reunification with the children could not be endorsed." Father then enrolled in "two online domestic violence classes."
Father reported he was staying in several different places, first with his parents, then in his car. He also reported he had been placed on a psychiatric hold but after he was released was staying at a church. Father also stated he was "being protected by the witness protection program for outing a drug lord and could not disclose his address."
Although he maintained he was employed, father's purported employer stated father had only worked "a couple of days" then he "got COVID and he never returned." Father then reported "he was starting his own business," however, the social worker noted it had "been very difficult to follow-up with all of [father's] claims," and she had been unable "to find any real accuracies in his timelines."
Additionally, although father maintained he had completed his parenting education classes, the program coordinator for the classes stated father had only attended five of the eight sessions, at which time she terminated services "when it appeared that he needed more mental health services." Father then enrolled in a different program, and that program coordinator indicated father had once again only attended five out of eight sessions due to father's psychiatric hold. At the time of the report, father had "re-enrolled in the class and was informed that he would need to attend all of the meetings to get full credit for completing the course."
The Bureau reported father "has gone back and forth in his statements about using drugs." For instance, after father was released from his psychiatric hold, he informed the Bureau he "wanted treatment for his drug use." However, after a substance abuse counselor reached out to him in response, he told the counselor "he does not use drugs." Therefore, "no treatment plan was offered to him." Additionally, although father reported he was "actively participating" in Narcotics Anonymous, he stated it was "for using Benadryl one time." However, father's sponsor stated father had "admitted to using methamphetamines." Of the 23 drug tests, father had tested negatively 13 times and missed nine tests (one of which was excused), and one result was pending.
The Bureau described father as "appropriate" during visits with his sons in that he "could care for them and interact with them." While he "did not always change their diapers when they were dirty," "he did always bring food." During many of the visits, father would "speak to the individual supervising the visits about additional issues with his life or the case and would need to have his attention redirected to the children."
The Bureau reported there was not a substantial probability of return of the minors to either parent. Beyond regular visitation and "some attempts at working on his case plan," father had been "unable to fully achieve any of the objectives" of his case plan. Additionally, father had "struggled since [mother] left him," attempting "suicide on three different occasions," and continuing to contact mother despite the temporary restraining order. For the first few months post-separation, father had been unable "to think of anything beyond his wife." And while he had recently "been able to redirect some of his energy into the case plan and needs of his children," he continued "to struggle with his feelings."
Father requested a contested review hearing, and the court found good cause to set that hearing beyond the six-month review date and ordered all orders remain in effect until the continued hearing date.
In its memorandum filed prior to the contested hearing, the Bureau continued to recommend termination of reunification services. Father had reenrolled in parent classes but had "only completed a couple of sessions." Father stated he had "missed a session because his car caught on fire," however, the social worked noted the sessions were done remotely and he never attended any more sessions. Father felt he "was being targeted," and was planning "to take the car to get analyzed for arson." Despite father being placed on multiple psychiatric holds, the Bureau was able to confirm he had attended seven individual therapy sessions from September 2021 through February 1, 2022. Additionally, father had been assessed by "clinical staff" and was "found to have Major Depression."
Although father continued "to state he is the victim and has not hit [mother,]" the Bureau noted in the recent August incidents, "it appeared that [mother] was hit repeatedly by [father.]" Additionally, although father completed "some online classes for domestic violence," he only reported learning "he is not alone in being abused." He did not acknowledge "any lessons he learned of being the abuser in a relationship."
Both parents claimed the other continued to contact them, and the Bureau had been unable to "completely decipher what the truth is" but noted "it is clear" both parents were "still in communication with each other," "the relationship continues to be abusive," and they "have not been able to practice any safety regarding the domestic violence."
Father had been consistent with visitation, although the visits had "become difficult" for J.M. who wanted "to end each visit early." During one visit, J.M. yelled at father," 'You hit Mommy!'" and then "growled at his father." Father "did not try to calm [J.M.]" but instead told him "that he shouldn't say things like that and that it isn't true." J.M. repeated "this a couple of times" during the visit, and the social worker was "concerned" that father had not "tried to discuss the situation with [J.M.]" After visits, J.M. was "often more irritable." Despite the fact A.M. was also present at the visitation, the memo did not note how visits were going with him, although it did note both children were "doing very well in their current placement" and A.M. continued to reach "more of his developmental milestones" and was an overall "very happy child."
The court found minors continued to be persons described by section 300, continued to be dependent children, and found by clear and convincing evidence reasonable services had been provided, that return of the children to parents' custody would create a substantial risk of detriment, and parents had failed to regularly participate in their court-ordered plans. The court terminated reunification services and set the matter for a section 366.26 hearing.
A month before the section 366.26 hearing, J.M.'s placement requested that they be granted Prospective Adoptive Parent Designation so that they could keep A.M. in his current placement with them. They explained J.M. needed to be separated from A.M. because he had "developed extremely violent behaviors, often directed at [A.M.]" The foster parent noted J.M.'s doctor recommended the separation and that J.M. be placed in an only-child home "so that he does not inflict harm to another younger child." J.M. had stated he" 'hates' [A.M.]; he has hit him in the face; he has grabbed a screwdriver and threatened to harm other relatives"; he had been violent to himself, "hitting himself in the head so violently that the caregivers are extremely concerned for his well-being."
Eight days before the section 366.26 hearing, father filed a section 388 petition requesting the court change its orders terminating reunification services as to A.M. Father stated he had been "very active in the recovery community," participated "in a weekly therapy group," and "gained significant insight regarding the cycles of domestic violence." Additionally, father noted minors "love their father and have a close relationship with him. There is a strong bond," and father has "raised his sons up until the time of removal," participated "in services and has made significant changes so he could be a parent for his children."
At the scheduled section 366.26 hearing, the court granted a continuance at the request of the Bureau, set hearings for father's section 388 petition and the foster parents' request to grant prospective adoptive parent status, and set a new date for the 366.26 hearing.
In the meantime, mother also filed a section 388 petition requesting the court change its order terminating reunification services as to A.M. and J.M. At the hearing on the matter, the court was "informed . . . Mother is in the process of relinquishing her parental rights" to A.M. so that he "can remain with his placement," and mother withdrew her petition as to A.M. Mother subsequently relinquished her parental rights to A.M. in February 2023. As to J.M., it was the Bureau's intent to transition mother and J.M. to unsupervised visitation, eventually place J.M. with mother, and convert mother's case plan to family maintenance.
In a memorandum in response to father's section 388 petition, the Bureau recommended the court deny the petition. Father had attended all of his monthly meetings, but when J.M. "became upset with [A.M.] and acted out," father was unable "to redirect [J.M.]" and the visit supervisor had to remind father "to be watchful of [J.M.'s] actions." During the May, June, and July visits, father "followed a pattern." A.M. would begin each visit by crying for the "first few minutes" but would then settle down, father would interact with both children and offer food, after "about 10 minutes, father put on a video and [J.M.] watched the video for the remainder of the visit" so "there was not a lot of interaction." The August visit went well, and the Bureau noted father "does love and care for his children as seen with his consistency in his visits."
Although father reported he had "gained significant insight regarding the cycles of domestic violence" he continued to state he "was the victim of the domestic violence that occurred between him and the children's mother," despite the fact the court had denied his restraining order against mother and granted mother's restraining order request against father. In February, mother called the police because father "was violating" the restraining order by "texting her repeatedly." When contacted by the police, father denied sending any messages and "claimed [mother] hacked his phone." In June, father contacted the police to report mother and her partner had tried to" 'run me off the road and purposely tried to ram my vehicle but did not make contact.'" Brentwood Police Officer Devin Hidalgo responded, taking statements from mother, her partner, and father. Officer Hidalgo noted father's story" 'did not make sense . . . and I did not feel that he was being truthful.'" Father eventually admitted he had lied but maintained he" 'made up the story . . . because he wanted [mother] in trouble, to feel bad, to stop lying and tell the truth.'" Father was arrested for knowingly making a false police report and for violating a restraining order "by driving near [mother's] residence and then following her to a gas station." Finally, although father "has stated that he fears for his life from [mother]," he continued "to frequent areas where [mother] is and attempts to contact her." Father reported he was working with a victim witness program to obtain a restraining order against mother, but the Bureau was unsure if the program knew of father's "violation of the restraining order against him."
The Bureau concluded, while it was clear father "cares deeply for his children," the evidence shows he has "not made the changes needed to provide for his sons' safety and well-being." After a two-day hearing, the court denied father's section 388 petition.
In its section 366.26 hearing report, the Bureau recommended the trial court terminate father's parental rights to A.M. and find adoption to be the most appropriate plan. Father had attended 32 out of 32 visits. He "expressed affection both verbally and physically," and J.M. "would greet his father warmly and at times embrace him." Father would "routinely make [A.M.] a bottle, feed him, and check/change his diaper." However, father "ended visits when he was uncomfortable with [J.M.'s] behavior or his own emotional issues." Additionally, father "often discussed inappropriate issues during the visit" and "had to be redirected by the visitation supervisor."
For example, during one visit he informed the visitation supervisor he "went to the police after receiving gun threats from [mother's boyfriend]." (Italics omitted.) The supervisor redirected father's attention to the visit. During another visit, father informed the visitation supervisor that "while he was on his way to the office, somebody hit and ran his vehicle" and the police were "unhelpful." At the same visit, father also "began talking about how he is being accused of being a domestic violence aggressor, when the mother was actually the aggressor and on one occasion attacked him with a pitchfork." (Italics omitted.) The supervisor informed father it was "not appropriate to discuss this in front of the children," but father "began talking about how the mother is a drug addict and her boyfriend is a drug dealer." (Italics omitted.) The supervisor once again redirected father's attention back to the visit.
The Bureau determined A.M. was generally adoptable. He was placed in maternal aunt and uncle's home (in which he had been placed for 16 months). Maternal aunt and uncle had been approved as a resource family home and wished to adopt him.
The Bureau stated the "current parent child[] relationship does not outweigh the benefits of adoption," and A.M. had "resided with his prospective adoptive parents" since he was 34 days old. At the time of the report, A.M. was 18 months old.
The court held the contested section 366.26 hearing as to A.M. in February and March 2023, at which it heard from father and the social worker.
The court initially began the section 366.26 hearing in December 2022. But after father made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, which the trial court granted, the parties stipulated "to starting father's .26 contest anew."
Father testified that he began visiting A.M. "a couple days after" the minors were removed and had been visiting during the entire dependency proceedings, with his last visit occurring the Friday before the hearing. He began the visits by seeing if minors were hungry, and then he would "sing, dance, um, laugh with both of them." He showed the court several pictures of him with minors during the visits.
Father stated A.M. deserved "to be with his biological father" and he would "benefit out of . . . being with the biological father, me, and because I love him, and I care for him."
Father acknowledged A.M. had never lived with him, that he had never had visits outside of the Bureau, and that he never had unsupervised or overnight visits. But father maintained, "There is a bond that cannot be explained with words, and that bond has been there since day one....But it's, like, emotional, but also a sentimental type of bond between me and him since, you know, when he was born." Father said A.M. acted "Caring, loving" toward him and that he "comes to me" during visits, and called him "Dada." Father stated A.M. "doesn't want to go" when the visits are over.
The social worker testified A.M. did not go to father during visits. That at the last visit, the visitation supervisor brought A.M. and tried to hand him off to father, and A.M. "wouldn't go to him" initially. According to the supervisor, this was a "typical occurrence." The social worker stated A.M. called his caretakers "Mommy" and "daddy." The social worker did not believe there was a "reciprocal bond" between father and A.M. She explained, "father definitely tries to interact with [A.M.]," and A.M. "allows [father] to pick him up, but he is not touching father like a normal child when you pick them up, if you are their parent." When interacting with his caregivers, A.M. "is very comfortable, he is very active, mobile, . . . stays close to mom....Sorry. Um, he calls her mama, looks to her for every-most things, seeks her out." Whereas during visitation, A.M. is "very quiet," he does not "really engage much, . . . and I didn't hear him say anything in the- my last visit." She had "never heard" A.M. call father "father, or daddy," and father had never progressed beyond supervised visitation.
After hearing from counsel, the court terminated father's parental rights, determining the beneficial parent-child relationship exception was inapplicable. In doing so, the court thoroughly explained all "three prongs to that parental exception," which we quote a length:
As to the first prong, regular visitation and contact, "This prong weighs heavily in the father's favor. The father did attend 100 percent of his visits . . . which is significant."
The second prong-whether the child has a "substantial, positive, emotional attachment to the parent"-the court stated, prior to Caden C.,"one part of the process of consideration was whether the child view[s] the parent as a parent, as opposed to a visitor. That is no longer the main focus of the law. Although, that is something to take into consideration. And it is clear that, at this point, [A.M.] does not view [father] as his father, but more as an occasional visitor. [¶] . . . [A]fter . . . Caden C...., the [Supreme] Court clarified that the salient issue is whether there is some indication of a substantial, positive, emotional attachment from the child to the parent, and there is no indication that such a bond exists. [¶] In this case, the child is very young. He has never lived in the home of his parents and has lived in his prospective adoptive parents' residence since he was 34 days old. [¶] [A.M.'s] visits with father, while the father held and played with him at times, sometimes ended early or were disruptive. And the visits . . . described in the report, and by [the social worker], do not convey a bond from . . . the child to the parent.
In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
"[A.M.] did not appear to be more easily comforted by father than by the caregivers or the [visitation supervisor]. He did not readily go to father at the start of visits. Even when he was questioned . . . about proof of this bond that father says that he has with his son, at one point, . . . he said something along the lines of a bond cannot be explained in words, which may be true. However, evidence of a bond should be capable of being observed by outside parties. It appears that mainly father is trying to convey something about a blood relationship being significant. And while I understand that it is a significant relationship to father, and that he loves his son very much, the fact is that the relationship is not significant from the perspective of the child, and that is the lens . . . by which the Court must look and view this particular prong."
Finally, as to the third prong-"whether the termination of parental rights would be detrimental to the child, weighing the detriment of severing the bond with the benefit . . . against the benefits of the adoptive home"-the court stated, "the question that the Court must ask is whether the child would be affected by losing this parental relationship. Based on the evidence presented to this Court in the reports and through father's testimony, there is no such proof. [¶] There is some evidence of their relationship being detrimental. The father continued throughout the visits to harbor and express his belief that the foster family was mistreating the children and undermining him with no evidence of that. He let his concerns get in the way of healthy visits by discussing inappropriate topics during visitation...."
The court also took into account father's refusals to allow minors to get a haircut as showing a "desire to control the process" and as putting "his desires ahead of the best interests of the child"; father's exposing J.M. to domestic violence; and father's "continued lack of insight into his own actions" in determining "whether a relationship would be more beneficial than not." The court determined this factor "does not weigh in the father's favor."
Finally, the court noted A.M. "is clearly thriving in his current home." He was a "happy, active toddler," who referred to "his foster mother as 'mother' and father as 'dada.' "
Accordingly, the court found the "parental bond exception does not apply," and by "clear and convincing evidence that it is in the best interest of [A.M.] to be adopted." The court then terminated parental rights.
Discussion
"At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child." (Caden C., supra, 11 Cal.5th at p. 630.) Instead, the purpose of a section 366.26 hearing, is to select and implement a permanent plan for the child. (Caden C., at p. 630.) "[T]he court must first determine by clear and convincing evidence whether the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A).)" (Caden C., at pp. 630-631.) One of those exceptions is the beneficial parental-child relationship exception. (Id. at p. 631.)
The proponent of the exception must establish, by a preponderance of the evidence three elements: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at pp. 631, italics omitted.)
" 'The first element [of the exception]-regular visitation and contact- is straightforward. The question is just whether "parents visit consistently," taking into account "the extent permitted by court orders." '" (In re Katherine J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.), quoting Caden C., supra, 11 Cal.5th at p. 632.)
"The second element, in which the court must determine whether the child would benefit from continuing the relationship with her parent, is more complicated. '[T]he 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." [Citation.]' (Caden C., supra, 11 Cal.5th at p. 632.) '[C]ourts often consider how children feel about, interact with, look to, or talk about their parents.' (Ibid.) Caden C. instructs us that 'it is not necessary-even if it were possible-to calibrate a precise "quantitative measurement of the specific amount of 'comfort, nourishment or physical care' [the parent] provided during [his or] her weekly visits." [Citation.]' (Ibid.) Expert opinions or bonding studies provided by psychologists who have observed and/or reviewed the parent-child relationship are often 'an important source of information about the psychological importance of the relationship for the child.' (Id. at pp. 632633, fn. omitted.) Ultimately, the court's role is to decide whether the child has a' "significant, positive, emotional relationship with [the parent.]"' (Id. at p. 633.)" (Katherine J., supra, 75 Cal.App.5th at pp. 316-317.)
"The third and final element asks the court to ascertain whether severing parental ties-and thus 'terminating [the] parental' relationship- would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 633.) 'What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life.' (Ibid.) Because any harm caused by loss of this relationship may be significantly mitigated by the child's adoption into a stable, loving home, the court must then perform a delicate balancing act. The 'subtle, case-specific inquiry [that] the statute asks courts to perform [is]: does the benefit of placement in a new, adoptive home outweigh "the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]"' (Ibid.) 'When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be "detrimental to the child due to" the child's beneficial relationship with a parent.' (Id. at pp. 633-634.)" (Katherine J., supra, 75 Cal.App.5th at p. 317, fn. &italics omitted.)
"In addition to these substantive clarifications, Caden C. also establishes a hybrid standard of review for the beneficial relationship exception. The first two elements, which require the juvenile court to 'make a series of factual determinations' regarding visitation and the parent-child relationship, 'are properly reviewed for substantial evidence.' (Caden C., supra, 11 Cal.5th at p. 640.) These determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a difference result had it believed other evidence.' (In re Dakota H. (2005) 132 Cal.App.4th 212, 228....)" (Katherine J., supra, 75 Cal.App.5th at pp. 317-318.)
"But 'the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion.' (Caden C., supra, 11 Cal.5th at p. 640.) Accordingly, we will not disturb the juvenile court's decision unless it '" 'exceed[s] the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' (In re Stephanie M. (1994) 7 Cal.4th 295, 318....)" (Katherine J., supra, 75 Cal.App.5th at p. 318.)
There is no dispute that the trial court concluded father carried his burden as to the first element.
As to the second element, father contends the "record in this case shows . . . that his relationship with his son is of a character that should be preserved." Father points to the Bureau's reports of his visits with minor as evidence. For example, father notes the reports show father consistently visited A.M., would "bring food and toys for the children," would "feed [A.M.] and change his diaper," A.M. "smiled when he saw father" at one visit, and "cried when father walked away from him to use the restroom" at another visit. Additionally, father cites his and the social worker's testimony, noting father "had always been attentive to [A.M.] during his visits," A.M. "showed that he wanted to interact with father," A.M. would let father carry him, and father was able to soothe A.M.
None of this suggests the court erred in determining there was not a" 'significant, positive, emotional relationship with [the parent.]'" (Caden C., supra, 11 Cal.5th at p. 633.) Indeed, the evidence shows the contrary. As the court noted, A.M. was very young and had never lived with father, moving to his prospective adoptive home at 34 days old. There was simply no evidence of a "reciprocal bond," with the court stating "while I understand that it is a significant relationship to father, and that he loves his son very much, the fact is that the relationship is not significant" for A.M. (See In re Eli B. (2022) 73 Cal.App.5th 1061, 1073-1074 [while the mother stressed evidence that in many visits the minors were happy to see her, she ignored "other evidence the juvenile was entitled to credit . . ., including occasions on which the children did not engage with her favorably, as well as evidence that her interactions with them sometimes had a negative impact on them"; additionally, having been detained at age two and been in foster care for four years, the minor hardly knew mother]; In re Angel B. (2002) 97 Cal.App.4th 454, 459, 467-468 [while evidence showed regular visits with the minor "went well," other evidence showed the minor had "spent relatively few hours visiting with Mother, versus many hours being parented by the foster family"; "nothing in the record indicates, from [the minor's] point of view, the interactions were particularly like those of a child with her mother"; and there was no evidence the minor "has any particular needs that can be met by Mother but not by the foster family"].)
In short, although the Bureau's reports showed father's visits went well for the most part, the evidence falls short of establishing the second element of the parental-benefit exception.
Having failed to carry his burden on the second element, we need not address the third Caden C. element. (Caden C., supra, 11 Cal.5th at p. 636 [Only when a parent establishes the first two elements of the beneficial parental relationship exception does the court proceed to determine whether terminating the attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.].) Nevertheless, even assuming that burden had been met, the trial court did not abuse its discretion in determining termination of father's parental rights would not be detrimental to A.M.
Father asserts (1) "Losing his relationship with father will necessarily cause trauma [to A.M.]," and (2) citing Caden C., that the juvenile court improperly "strayed into th[e] territory" of" 'comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent[],'" when it based "its decision, in part, on its finding [that A.M.] did not appear more comforted by father than the caregivers."
Despite father's assertion that losing this relationship will cause A.M. some trauma, that is not the test. Rather, the determination the court must make is "whether the harm of severing the relationship [with the parent] outweighs 'the security and the sense of belonging a new family would confer.'" (Caden C., supra, 11 Cal.5th at p. 633.) As the court noted, there was "no . . . proof" that A.M. "would be affected by losing this parental relationship." And, this relationship did not outweigh "the very real current benefits of stability and everything that the boy's current home has to offer."
As to father's second assertion, the record makes clear the juvenile court was fully aware of its responsibility under Caden C. It is also clear the court considered all the evidence before it, which included the Bureau's reports, father and the social worker's testimony, and the entire case file. Thus, while father asserts the court based its decision, "in part," upon grounds identified in Caden C. as improper, the record does not support that conclusion."' "We must indulge in every presumption to uphold a judgment, and it is [appellant's] burden on appeal to affirmatively demonstrate error-it will not be presumed." '" (In re A.L. (2022) 73 Cal.App.5th 1131, 1161.) Father has not demonstrated error, and it will not be presumed here.
Disposition
The order terminating parental rights to A.M. is AFFIRMED.
We concur: Margulies, Acting P.J. Getty, J. [*]
[*] Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.