Opinion
A164214
07-27-2022
In re W.W., a Person Coming Under the Juvenile Court Law. v. A.W., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J19-00115
Banke, J.
A.W. (mother) appeals from orders denying a hearing on her petition for modification under Welfare and Institutions Code section 388 and terminating her rights under section 366.26 to her child, W.W. (minor). She contends the juvenile court erred in finding the petition did not state a prima facie case of changed circumstances or that the proposed change would be in the child's bests interests. Additionally, mother asserts the court erred in concluding the beneficial-relationship exception to termination did not apply because it did not conduct the section 366.26 hearing in conformance with the principles articulated in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).
Father is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm.
Quoted portions from the factual background come from our prior opinions In re Baby Boy W. (Jan. 22, 2021, A159211) 2021 WL 220077 [nonpub. opn.] and A.W. v. Superior Court (Sept. 27, 2021, A162985) 2021 WL 4396375 [nonpub. opn.]. We take judicial notice of the records in case Nos. A159211 and A162985. (Evid. Code, §§ 452, 459.)
Petition and Detention
"In February 2019, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition alleging Mother was unable to provide regular care for the minor, then 21 days old, due to her history of substance abuse and because the minor's umbilical cord tested positive for methamphetamines, and further alleging Mother's parental rights had been terminated as to minor's half-sibling, C.W. ([] § 300, subds. (b) &(j).)" (In re Baby Boy W., supra, at p. *1.)
"At the detention hearing, the court . . . ordered minor detained, ordered supervised visitation for mother, and ordered services for mother pending further proceedings. Those services included a psychological evaluation and substance abuse treatment...." (A.W. v. Superior Court, supra, at p. *1.)
Jurisdiction and Disposition
At the jurisdiction hearing, the court sustained the petition.
"At the disposition hearing, the court adjudged minor a dependent of the court, found by clear and convincing evidence there was a substantial danger to minor's physical health, safety, and protection or physical or emotional well-being, if he were returned home, ordered services and supervised visitation for both parents, and set the matter for a six-month review hearing." (A.W. v. Superior Court, supra, at p. *1.)
Reunification Period
"In its six-month status report, the Bureau recommended an additional six months of services for mother. Mother had since had another child, S.W., who remained 'in her care under a court-ordered Family Maintenance plan,' and she had obtained housing. Minor remained in foster care.... Mother began attending 'NA/AA Zoom meetings.' Mother 'complied with [the] majority of [drug] testing requirements.'" (A.W. v. Superior Court, supra, at p. *2.) Additionally, supervised visitation had been going well, and the "Bureau therefore requested 'authority to transition to unsupervised visits' with mother. The social worker noted mother had 'made a lot of progress,' had 'engaged in her sobriety and ha[d] begun to build a supportive team of individuals,' and had 'demonstrated some new skills and behaviors . . . consistent with case plan objectives.'" (Ibid.)
"The court continued minor as a dependent child, ordered continued reunification services, found mother had 'made significant progress in resolving problems that led to the child's removal from the home,' ordered 'consecutive overnight visits with mother . . . and set the matter for a 12-month review hearing. However, because of the time elapsed between hearings, the 12-month review hearing became an 18-month review hearing." (A.W. v. Superior Court, supra, at p. *2.)
By the time of its 18-month review hearing report, mother began exhibiting behavior that made the Bureau concerned about her" 'spiraling mental health.'" (A.W. v. Superior Court, supra, at p. *2.) Mother had "informed a social worker that the Bureau had 'stalked on her in the past, stole her son, and had doctor's [sic] lie about the result of a drug test "from her umbilical cord which we stole."' Additionally, there had been several incidents involving mother 'making threats.'" (Ibid.) Paternal grandmother reported that mother had, on "several occasions and 'at various hours, at 2:00 a.m. and 3:00 a.m.,'" come to her home and "would be 'hostile, yelling and screaming' and accused grandmother 'of being a child trafficker.'" (Ibid.) Mother had "followed minor's caregivers from the courtroom to the parking lot and stated 'they were liars, horrible people, and that everything they put in the paperwork was a lie.'" While mother had" 'adhered to the majority of her case plan components,' she had been 'very resistant . . . [to] complete a psychological evaluation.'" (Ibid.)
"Finally, although mother reported minor's overnight visits were 'going very well,' his foster parents reported minor did 'not fare well after visitations.' He had shown 'heightened anxiety,' and 'regressive behaviors' such as 'pulling his hair, kicking, biting, hitting and throwing objects.' Minor had also begun 'experiencing night terrors,' in which he 'screams and thrashes around dangerously and [is] unable to awaken.' Foster parents reported minor often returned from visits with 'a collection of little bites on his back under his diaper,' 'bites on his butt,' and 'smelling strongly of cigarettes.'
"In a February 2021 court memo, the Bureau [now] recommended termination of services to mother and continued to express concerns over mother's 'spiraling mental health.' Mother's individual therapist reported she could no longer speak to the Bureau 'due to directives put in place by [mother]' back in September 2020. After meeting with a social worker, mother had 'stood in front of building and yelled, "Give me my kid back, Children &Family Services are kidnappers."' Mother had taken pictures of an injury minor had sustained and 'posted photos of [minor's] injury on Facebook . . . once again violating [section] 827, the law protecting privacy.'
"Although mother had completed a psychological evaluation, she had used an unapproved evaluator[, Dr. David Dahl]. The Bureau received a consultation in regard to the evaluation. The consulting doctor opined that 'his concern with the psychological evaluation was that even though . . . the evaluator indicated that he had access to and reviewed' the various reports, 'he did not refer to any of the information contained in those reports' nor did 'he specifically address any of the reasons there were concerns about [mother's] psychological stability or well-being in the first place.' The evaluation failed to 'address [mother's] history with mental health, her history with substance abuse, her history with Domestic Violence and Trauma, nor did it address her criminal history.' Finally, mother's evaluator failed to 'consult with the Bureau . . . prior to performing the evaluation' and relied on 'information provided to him from [mother.]' The Bureau did not accept the evaluation and that component of her case plan therefore remained outstanding.
"Mother also repeatedly refused to allow social workers to do home visits.... Due to this, mother's 'unsupervised and overnight visits were terminated,' and mother instead received supervised visitation at the Bureau. Finally, police reports stated there had been 'approximately 9 incidents of domestic violence between [mother] and [father]' within the past four months, including an incident where father had a knife.
"A month later, in another court memo, the Bureau noted that since November 2020 mother had not drug tested, and she stopped sending verification of her 12-step meeting attendance. Mother stated she did not think she needed to continue drug testing because 'her initial case plan required that she only test for six months' and 'she was confused about continuing her case plan services because her attorney told her the case was set for trial.' Mother had also 'called in a false report' on minor's caregivers, necessitating a welfare check by the Sherriff's Department. Because mother refused to complete her court-ordered psychological evaluation through a Medi-Cal-approved provider, the Bureau agreed to pay the cost of the evaluation.... Supervised visitation was going well, and mother was 'age appropriate' and 'affectionate' with minor during the visits." (A.W. v. Superior Court, supra, at p. *3, fn. omitted.)
At the 18-month review hearing, after hearing from the social worker, mother, and mother's therapist, "[t]he court found reasonable services had been offered but mother had made 'minimal' progress with her case plan. The court stated this was not 'a case where [mother] could be characterized as being all noncompliant or all compliant,' rather mother's behavior 'evolved over . . . time.' The court found mother's therapist 'completely lacking in credibility.' The court also found mother lacked credibility because some of [the] things mother denied were 'very simple and very obvious things that are supported by the evidence.' . . . The court found the social worker to be credible, and that mother had not made substantial progress with her case plan, and specifically that mother had missed 24 drug tests since November 2020 and failed to get a psychological evaluation. The court terminated services, finding it would be detrimental to minor if he were returned to mother's care and set the matter for a section 366.26 hearing." (A.W. v. Superior Court, supra, at p. *4.)
Section 388 Petition
Six days before the scheduled section 366.26 hearing, mother filed a petition under section 388 requesting family reunification services or return of minor to her care. Mother stated she had "completed a hair follicle test, testing a full year (6") which shows [she] has been drug free for the past 12 months (October 2020 through October 11, 2021)." Additionally, she had an "updated psych. eval. from Dr. Dahl showing court documents etc. reviewed/considered." Mother maintained it would be in minor's best interest to reunify with her "to be with his birth parent, as well as being able to know and grow up with his siblings, which are in her care."
The court denied the petition, without a hearing, because (a) the request did not state new evidence or a change of circumstances and (b) the proposed change of order was not in minor's best interest.
Subsequent Proceedings
In its section 366.26 report, the Bureau recommended the court terminate mother's parental rights and find adoption the appropriate plan for minor. Minor, who was then two years old, had been detained at two months old, and had been in his current placement since he was nine months old. Minor was "generally adoptable" and his "prospective adoptive family is committed to providing him with a nurturing, safe, stable, and permanent home."
The court ordered minor detained from mother in early February 2019. Mother refused to "provide [minor] to [Child family Services]," and the court issued an arrest warrant for mother and a protective custody order for minor. Minor was not detained and placed in a licensed foster home until two months later in April 2019.
Visitation between mother and minor had initially gone well, and mother was eventually given unsupervised, overnight visits. However, those were suspended in December 2020 "due to concerns with mother not being cooperative by not allowing Children &Family Services staff to enter [her] home during unannounced visits . . . for welfare and safety checks." Mother then continued with supervised visitation. After termination of services in June 2021, the court ordered monthly supervised visits with minor.
Mother was "affectionate, attentive, engaging and interactive" with minor during visits, and he "appear[ed] to enjoy" the visits. However, in the Bureau's opinion, terminating parental rights would not "interfere with an existing parent/child relationship," and although minor had "some visits with his sibling, S.W., during visits with mother as well as overnight visits," he had "never resided with [S.W.] for any lengthy period of time" and therefore "d[id] not have a sibling bond that would outweigh the benefit of legal permanence for him through adoption."
In its addendum report, the Bureau noted it had since filed petitions for minor's sibling S.W. after mother's one month old, M.W.-minor and S.W.'s sibling-had died in her care.
The court ordered S.W. detained from parents in October 2021. Parents refused to comply with the court's order, and the court issued arrest warrants for both parents and a protective custody warrant for S.W. Dublin police officers arrested mother and detained S.W., two weeks later.
The petition alleged M.W. had "suspicious bruises on his back, suspicious blood from mouth and nose, bruising on right arm, and discoloration around right ear and neck; causing his death."
As to minor, the Bureau explained mother had been "inconsistent in her visits, especially starting in June 2021," after services were terminated. That "inconsistency had a negative effect on [minor]." The Bureau asserted the "relationship between [minor] and his mother is more of a friendly/familiar relationship than of a parent/child relationship." Minor had been out of parents' care "since he was 10 weeks old," in his current placement for over two years, and had "developed a strong attachment to the prospective adoptive parents." The Bureau stated "severing parental rights in order for the child to be adopted will not interfere with any existing parent/child relationship," and therefore recommended the court terminate parental rights, find that adoption is the most appropriate permanent plan for minor, and set a six-month review hearing.
At the section 366.26 hearing, the court stated it had received and reviewed the section 366.26 report and the addendum report. No witnesses testified and, instead, the court heard argument from counsel.
Mother did not testify, but the court allowed her to speak. She complained the minor was injured while in the foster parents' home and claimed she "never missed any . . . visits except for when my car got busted."
Mother's counsel objected to the termination recommendation based on the parental-benefit exception (§ 366.26, subd. (c)(1)(B)). Counsel maintained that mother had "regular visitation and contact with the child, and the child would benefit from continuing the relationship." Mother had unsupervised and overnight visits and minor "is very bonded to her, which can be seen from the visitation notes." The visits were "very positive," the Bureau stated mother "is affectionate, attentive, engaging and interactive with [minor]," and minor "enjoys these visits and he's bonded to and loves his mom."
Minor's counsel asserted mother's rights should be terminated and he did not believe the beneficial-parental exception "has been established here." Counsel noted there had been "positive interaction, a series of good visits, but this is not a situation where [minor] has looked to mother as his caregiver.... Mother and [minor] have a happy relationship and, as evidenced by the reports of visitation, they go well." However, minor had "been out of Mother's care for the great vast majority of his life, since he was about 10 weeks old," and while he looked to "mother for his enjoyment" he looked to the de facto parents "for his needs." And any bond minor had with mother was "not the kind of bond that can outweigh the benefit of permanence for a child as young as [minor]."
Counsel for the Bureau urged the court to find, by clear and convincing evidence, that minor will likely be adopted. Counsel went on to argue, citing Caden C., supra, 11 Cal.5th 614, the parental-benefit exception to the termination of parental rights did not apply. While mother initially made "progress in her visits, elevating herself to overnight and unsupervised visits," that "ended shortly after they started because of Mother's case plan compliance and other reasons." Since termination of services at the end of June, mother had only seen minor three times (in July, October, and December). Counsel agreed mother is "affectionate, attentive, engaging and interactive with [minor] during his visits" and that minor "appeared to enjoy the visits until [mother] stopped visiting," but over "the last six months, the mother has not had regular and consistent visitation . . ., and it's had a dramatic impact on [minor's] relationship with her." And while the last visit, "did go smoothly, it didn't rise to the level where the Court can find that [minor] has such a substantial positive and emotional attachment . . ., the kind of attachment applying that, without that relationship, would be detrimental to his life." There was, in short, "not a parental relationship here or anything beyond a friendly visitor." Additionally, minor "finds his sense of security and comfort with the foster parents and not through Mom."
The court noted there were two prongs it needed to address: visitation and whether mother's relationship with minor “outweighs the benefit of him being adopted and the permanency that comes with that.” While the court stated it could be “debated” whether mother maintained regular visitation, it continued that even assuming she had done so, the second prong was not met. The “reports are very clear,” minor “is bonded to and very much loves the prospective adoptive parents" and mother had "not presented evidence that would cause me to find that the benefits of your relationship outweighs his right[s] and the benefits of adoption."
The court then terminated the parental rights of mother and father.
Discussion
Section 388 Petition
Under section 388, an interested party may petition the juvenile court to change or set aside a prior order "upon grounds of [a] change of circumstance or new evidence." (§ 388, subd. (a)(1).) The petition must allege why the requested change is "in the best interests of the dependent child." (Id., subd. (a)(2).) The court may deny a section 388 petition without holding an evidentiary hearing if the petitioner fails to make a prima facie showing of either factor. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) "Thus, the [petitioner] must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.).)
"Once reunification services are terminated . . ., the focus of the proceedings changes from family reunification to the child's interest in permanence and stability." (G.B., supra, 277 Cal.App.4th at p. 1163.) This "focus on the child's best interests remains in place whether or not a parent seeks additional services under section 388." (Ibid., italics omitted; see Edward H., supra, 43 Cal.App.4th at p. 594.) Thus, at the post-reunification stage, "a parent's petition for . . . an order . . . reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Moreover, for children under three years of age at the time of removal, as W.W. was in this case, the juvenile court law recognizes that the"' "unique developmental needs of infants and toddlers"' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.) We review the summary denial of a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Mother contends she made the requisite two-part showing-a substantial change in circumstances and that the requested orders were in minor's best interests. Specifically, she points to a "revised psychological evaluation," which "showed she did not suffer a mental disorder and could safely care for [minor]," and a hair follicle test, which "showed she had been drug free for twelve months," and asserted the evidence "showed [minor] was bonded with his Mother, and therefore, it was in his best interests to continue the relationship."
At the time the court terminated services to mother, she had undergone a psychological evaluation by an unapproved evaluator-Dr. Dahl-who had not addressed many of the Bureau's concerns. As the social worker explained at the March 2021 review hearing, according to their consultant, Dr. Steve Cloutier, there were several problems with Dr. Dahl's evaluation. She stated, "Dr. Dahl, . . . number, one, he hadn't talked to the Department. He hadn't talked to anyone from the Department.... A number of assessments that we do were not performed, and the psychological evaluation, . . . [Dr. Cloutier] was concerned that a lot of the information that he got to do his psychological evaluation was things that [mother] gave him . . . information she provided him. [¶] . . . He did not address any of the circumstances that led to the removal of her child. He did not specifically address any other reasons that we were concerned for [mother's] psychological stability and well-being. He did not discuss any of the issues with [mother]. Um, from what Dr. Dahl wrote, he did not discuss any of those issues that I just stated. And also, [mother] did not indicate that she understood why [Child Family Services] was involved in her life. [¶] Later on, Dr. Cloutier, I believe around . . . January, informed us that he had talked to Dr. Dahl after trying to contact her [sic] repeatedly. And Dr. Dahl was agreeable to doing initial-to doing further testing if the Department approved him. But by the time we got information on Dr. Dahl and his credibility, and we were like, no, we are not going to accept this psychological evaluation or him as an evaluator. Mom was told that repeatedly via e-mail, in person, at court. It was stated that we did not accept the psychological evaluation at the court date on November 9th, and she still continued to go see Dr. Dahl, even though she was told we would not accept him as an evaluator."
The court accordingly rejected Dr. Dahl's evaluation and it was not admitted into evidence.
Yet, in support of her petition, mother submitted another evaluation from Dr. Dahl, even though it was clear any evaluation by Dr. Dahl would not be accepted by the court.
Additionally, mother had previously submitted hair follicle tests of which the court was well aware, and it had taken those tests into consideration before terminating mother's reunification services. In stating why, at that time, it found mother's testimony not credible and the social worker's credible, the court stated, "I'm giving you [(mother)] examples of how and why I'm finding that you are completely lacking in credibility. And so I was talking about you and [the social worker].... [¶] [The social worker] testified on the very first day of this trial, on March 1st. She talked about the case plan, when it became effective. She went back into-all the way back to your hair follicle test, the NA, AA. Your, what I will call your evolution in this process.... [¶] So, although [the social worker's] style may not be something you may prefer, . . . I find her to be credible. Again, you don't have to like her, she doesn't have to like you, but in my assessment of who I would believe when there is conflicting testimony, I believe [the social worker's] testimony."
Mother contends the hair follicle test she submitted with her section 388 petition showed she "was negative for all drugs through October 2021." However, mother had been previously told that the Bureau "requires parents to test through the County's contracted labs so that the Bureau could verify the results," and her reliance on an unauthorized test appears to have been an attempt to circumvent Bureau procedures by submitting unapproved testing and evaluations.
The court was previously aware of mother's "adamant denial" that minor's umbilical cord tested positive for methamphetamines, her prior hair follicle tests, and her "positive progress" with drug testing. However, the court weighed this against her refusal to have minor tested after birth, her drug use history, including three convictions for being under the influence, and her failure to drug test and had concluded services should be terminated. In short, the court was not presented with substantial evidence of a change in circumstances.
Nor did mother's petition make a prima facie showing that reinstating reunification services and/or returning minor to her care would be in his best interest. (G.B., supra, 227 Cal.App.4th at p. 1157.) Indeed, given the evidence before the juvenile court, mother could not overcome the "rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
The court did not abuse its discretion in summarily denying mother's section 388 petition.
The Parental-Benefit Exception
"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. (Ibid.) "[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., supra, 11 Cal.5th at pp. 630-631.) One of those exceptions is the parental-benefit 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, 637.)
" '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 parentchild 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. 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 different 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.)
"In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.'" (Caden C., supra, 11 Cal.5th at p. 640.)
"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.)
Regular Visitation and Contact
In terminating mother's parental rights, the juvenile court stated it could be "debated" whether mother maintained regular visitation with the minor. Mother reads this comment to mean "the court basically found [she] had maintained regular visitation." That is not, however, what the court stated. But even assuming the court did make a favorable finding as to visitation, mother did not meet her burden on the other two elements, as we now discuss.
Relationship That Will Benefit the Minor
Mother claims that while the juvenile court "conclusively found [she] did not present evidence that would cause the court to find the benefits of their relationship outweighed the benefits of adoption," it failed to address "exactly what that relationship was."
We first observe that"' "[w]e 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 (A.L.).) We assume the lower court" 'kn[ew] and applied the correct statutory and case law in the exercise of its official duties.'" (People v. Bankers Ins. Co. (2020) 57 Cal.App.5th 418, 425.)
Moreover, a court is "not required to state its findings in concluding that the parental-benefit exception [does] not apply." (A.L., supra, 73 Cal.App.5th at p. 1161; see In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [appellate record supported implied finding by juvenile court that parents failed to establish parental-benefit exception].) Therefore, absent any affirmative indication that the juvenile court erred, we will not presume it did so based on the brevity of its ruling, which was understandable given the factual record.
As we have recited, the juvenile court's inquiry in connection with the second element is as follows: "[T]he focus is [on] 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.' [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child...." (Caden C., supra, 11 Cal.5th at p. 632.)
As pertinent, both minor's counsel and the Bureau's counsel agreed that while mother "loves her child very much" and while she and minor had "a series of good visits," this "didn't rise to the level where the Court can find that [minor] has such a substantial positive and emotional attachment to [mother], the kind of attachment applying that, without that relationship, would be detrimental." Minor looked to his foster parents to "meet[] his needs," and found "his sense of security and comfort" with them. Both counsels urged the court to look at minor's age, with minor's counsel adding, "[t]he reality is, [minor] has been out of Mother's care for the great vast majority of his life, since he was about 10 weeks old." Mother's relationship with minor was not "a parental relationship here or anything beyond a friendly visitor," and their bond was "not the kind of bond that can outweigh the benefit of permanence for a child as young as [minor]."
The juvenile court did not make any express finding as to the second element. Rather, it echoed counsel's sentiments in stating it had "no doubt" mother loved minor and that his last visit with mother was "[f]riendly," "fun" with "positive engagement." However, the court went on to find that while mother had "more contact and involvement than Father," mother's relationship with the minor did not outweigh the benefit of the minor having the permanency of adoption.
Read in context, including against the backdrop of the arguments made by counsel, we consider the court to have made an implied finding that mother did not meet her burden of proof on the second element (a relationship that would be of benefit to the minor) and an express finding she did not meet her burden on the third (termination of parental rights would be detrimental to the minor).
The record supports such an implied finding as to the second element.
The juvenile court had descriptions of the interactions between mother and minor during supervised visits and the assessment of the social worker as to the nature and quality of their relationship in the section 366.26 and addendum reports.
While the social worker previously opined, in the section 366.26 report, that mother "is affectionate, attentive, engaging and interactive with [minor] during . . . visits" and minor "appears to enjoy these visits," by the time of the addendum report, the social worker stated the "relationship between [minor] and his mother is more friendly/familiar . . . than of a parent/child."
The social worker went on to state that minor seeks out foster parents "when he is hurt," "cries for the foster parents when he has to separate from them," and calls them "mommy" and "daddy." For example, the October visit began with minor "crying loudly" when mother picked him up. He "cried and called for mommy and daddy (referring to the foster parents)." After foster parents left, mother was able to calm him down by "hug[ging] him and rub[bing] his hair." When mother later asked if he needed to use the bathroom, he said "no, mommy[, meaning his foster parent,] told him he could pee in his pull-up." Toward the end of the visit, mother asked if minor wanted her to come see him again, and "He said yes." But at the end of the visit, minor ran toward foster father.
Mother points to instances where she told minor she loved him and he said he loved her too, where minor appeared "comfortable around [her]," and where minor previously called her" 'mommy' during the visits." But this is not enough to overturn the court's implied finding that mother failed to show a "substantial, positive[,] emotional attachment."
Indeed, substantial evidence supports the finding, including the traumatic October visit, as well as the facts that the minor had been removed from mother's care when he was 10 weeks old, he had been in his current placement for over two years, and except for the brief period of time when mother had overnight visits, the minor had never spent any significant time in mother's presence. (See In re Eli B. (2022) 73 Cal.App.5th 1061, 10731074 (Eli B.) [while mother stressed evidence that in many visits her children were happy to see her, engaged with her, and even competed for her attention, she ignored "other evidence the juvenile court was entitled to credit that paint[ed] a much more complex picture, 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, minor hardly knew her mother, having been detained at the age of two and been in foster care for four years]; Katherine J., supra, 75 Cal.App.5th at pp. 319-320 ["father's unresolved issues with substance abuse and violence had consistently destabilized [minor's] life for years, fatally compromising father's attempts to maintain a strong, positive emotional attachment with her"]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [parents who have essentially never had custody of children will have a difficult time establishing the exception], disapproved on another ground as stated in Caden C., supra, 11 Cal.5th at p. 636, fn. 5; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [parents "must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parents and child find their visits pleasant"].)
Citing In re D.P. (2022) 76 Cal.App.5th 153, 168 (D.P.), In re J.D. (2021) 70 Cal.App.5th 833, 859 (J.D.), and In re S.B. (2008) 164 Cal.App.4th 289, 298-300 (S.B.), mother asserts a child can have attachment with both their caregiver and their parents, thus it is not necessary that the child be primarily bonded with the parent for the exception to apply.
These cases-in which the underlying juvenile court cases all predated Caden C.-discuss, among other things, the fact that the parental-benefit exception can apply even when a child has bonded to alternative caregivers. However, they are distinguishable because in each of these cases, the parents presented substantial evidence of the second element-a relationship, the continuation of which would benefit the child.
In D.P., there was "evidence supporting the second element, that the children would benefit from continuing the relationship" with their parents. (D.P., supra, 76 Cal.App.5th at p. 167.) There, the five minors had lived with parents for their entire lives until their removal at ages 16, 15, 14, three, and two, respectively. (Id. at p. 158.) Mother testified "they "were very close- waking up together and doing everything together. Mother said the kids also loved her, called her mom, ran to her when they started the visits, routinely asked when they would be coming home with her, and they were happier with her than with the caretakers." (Id. at p. 167.)
In J.D., the mother presented a wealth of evidence supporting a finding that J.D., who was three years old at the time of removal and five and half years old at the time mother's rights were terminated, "has a 'substantial, positive, emotional attachment' to her sufficient to meet the second element." (J.D., supra, 70 Cal.App.5th at p. 855.) That evidence included: the Agency's reports "consistently describ[ing] J.D.'s attitude toward mother in a positive light"; the family therapist reports that mother and J.D. had a" 'positive and affectionate relationship' "; the caretakers "acknowledge[ment of] the positive bond J.D. had with mother"; and the "visitation logs" which the appellate court described as "intimate, personal and touching. It is hard to do justice to the picture that emerges from them; neither space nor words suffice," but they provided "an extremely telling glimpse of how J.D. 'feel[s] about, interact[s] with, look[s] to, [and] talk[s] about' his mother," and J.D.'s frequent references to mother as "his 'mommy,'" his "affection toward mother during visits," J.D. telling mother he loved her, telling her he missed her, and "expressing] a desire to go to mother's house." (Id. at pp. 855-858.)
Finally, in S.B., the father presented evidence of, and the juvenile court found father had," 'an emotionally significant relationship'" with S.B. who was three years old at the time of her removal and five years old at the time parental rights were terminated. (S.B., supra, 164 Cal.App.4th at p. 298.) The father had been S.B.'s primary caregiver until removal, and for the first year after removal, S.B. was "unhappy when visits ended and tried to leave with [father]," S.B. initiated "physical contact" with father, at the bonding study the doctor observed S.B." 'ran into [father's] arms" and "spontaneously" said she wished she lived with father. In short, the record showed "S.B. loved [father] and wanted their relationship to continue." (Ibid.)
The records in those cases stand in stark contrast to the record here. While it is true a child's "emotional attachment [is] not a zero-sum game" (J.D., supra, 70 Cal.App.5th at p. 859), and mother showed she had had some friendly and positive interactions with minor, she did not show as a matter of law that she had a "substantial, positive, emotional attachment" to minor. (See Eli B., supra, 73 Cal.App.5th at p. 1075 [mother did not show on appeal that "she proved the second element of the beneficial relationship exception as a matter of law"].)
Detriment to Minor
Mother maintains the juvenile court "improperly focused on the relationship [minor] had with the foster parents" as opposed to his relationship with mother. Mother is correct that in assessing whether a parent has shown the requisite beneficial relationship-that is, the requisite second element-the juvenile court should not "consider the suitability of [a child's] current placement." (J.D., supra, 70 Cal.App.5th at p. 864.) However, as we discuss, the juvenile court's reference here to the minor's foster parents pertains to the third element, namely whether terminating any such relationship with mother would be detrimental to the minor.
As mother notes in her closing brief, the Bureau failed to address this specific complaint in its respondent's brief. However, contrary to mother's suggestion, a respondent does not concede an issue in an appellant's opening brief by failing to address it. (People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046 ["A failure to respond to an opponent's argument may be unwise as a tactical matter," but such a failure does not concede the argument.].)
"Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, court must assume that terminating parental rights terminates the relationship. [Citations.] 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.... [¶] In each case, then, the court acts in the child's best interest in a specific way: it decides whether the harm of severing the relationship [with the parent] outweighs 'the security and the sense of belonging a new family would confer.' [Citation.] 'If severing the natural parent/child relationship would deprive the child of substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child, the court should not terminate parental rights." (Caden C., supra, 11 Cal.5th at p. 633.)
Here, in referring to the foster parents, the juvenile court stated mother had not established that the "benefit of maintaining your relationship with [minor] outweighs the benefit of him having the permanency of adoption," that minor was bonded with them, and that they were "offering the permanency that he deserves," and "that is a permanent, stable, familial relationship." This comparison of the benefit to minor from continuing his relationship with mother to the benefit of remaining in his foster parents' care is precisely what the third element requires. Although the court in Caden C. warned the analysis of the third element is "not a contest of who would be the better custodial caregiver" (Caden C., supra, 11 Cal.5th at p. 634), the juvenile court said nothing to suggest it was comparing mother's parenting abilities to that of the foster parents.
Furthermore, as the record shows, mother's sporadic visitation had, in fact, begun to negatively impact minor. For example, his therapist had seen minor on the day of the October visit, and stated he" 'was acting like a different little kiddo. He usually engages very well and wants to show me everything and anything he can find, but that Thursday he threw himself on the floor and he was hiding behind the couch.' The therapist stated that she believes [minor] dissociated himself when the foster mother informed him that he would be visiting with his mother. Furthermore, after the visit, the foster mother shared with the therapist and social worker that [minor] was dysregulated when she left him at the visit and when she picked him up after the visit. Additionally, [minor] had a difficult time staying asleep and wakes up crying; has strained bowel movements and only has a bowel movement in his sleep.... The therapist stated that is very difficult for the foster parents to prepare [minor] for the visits with his biological mother due to how inconsistent they are and that the 'inconsistency is also very difficult for him, and is causing his anxiety to increase.'" (Italics omitted.)
While mother acknowledges the therapist's comments, she posits minor's "negative reaction could very well be from [minor] not having enough contact with his mother, as opposed to having contact with his mother." This is sheer speculation and does not constitute evidence, let alone, compel rejection of the therapist's report.
In sum, mother has not shown that the juvenile court erred in its assessment of the evidence in connection with the third element or in concluding that mother did not meet her burden of proving minor's relationship to her was "so important to the child that the security and stability of a new home wouldn't outweigh its loss." (Caden, supra, 11 Cal.5th at pp. 633-634.)
Disposition
The juvenile court's order denying mother's section 388 petition, and its order after the section 366.26 hearing terminating parental rights and declaring adoption to be the permanent plan for the minor, are AFFIRMED.
We concur: Margulies, P.J. Wiss, J. [*]
[*]Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.