Opinion
B328260 B330519
05-02-2024
In re CONNOR J. et al., Persons Coming Under Juvenile Court Law. v. ERICA G. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant Erica G. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Stephen J. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 20CCJP05142 Hernan D. Vera and Charles Q. Clay III, Judges. Affirmed.
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant Erica G.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Stephen J.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
Six months after the juvenile court terminated reunification services for appellant mother Erica G. as to her son Connor J., the court (Judge Hernan D. Vera) denied her request for two bonding studies: one for the relationship between her and Connor, and one for the relationship between Connor and his brother Kristopher J. (who had already reunified with Mother). One month later, the court (Judge Charles Q. Clay III) terminated Mother's parental rights as to Connor at a hearing held under Welfare and Institutions Code section 366.26, finding Mother had failed to demonstrate the applicability of the parental-benefit exception.
The proceedings below were heard by multiple judges. For the sake of clarity, we parenthetically include the juvenile court judge's name each time "the court" refers to a different judge.
Undesignated statutory references are to the Welfare and Institutions Code.
On appeal, Mother contends the juvenile court erred in denying her bonding study requests because the court needed information from an expert to determine whether Connor would benefit from a continuing relationship with Mother. She additionally contends the court erred in finding the parental-benefit exception inapplicable both because it did not order the bonding studies and because it wrongly concluded that certain evidence was irrelevant. We conclude the court did not abuse its discretion in declining to order the bonding studies and did not err in finding that Mother had failed to demonstrate the applicability of the parental-benefit exception. We therefore affirm.
While Connor's father Steven J. is also a party to this appeal, in his appellate brief, Father simply joined in Mother's arguments and then argued that if the order terminating parental rights as to Mother were reversed, the order terminating his parental rights must also be reversed. Because we reject Mother's arguments and do not reverse the order terminating her parental rights, we also do not reverse the order terminating Father's parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues appellant raises on appeal.
A. DCFS Files a Petition
In September 2020, firefighters summoned to the family home for a medical emergency pertaining to the maternal grandmother reported to the police that "two young minors were being kept in a cage in the kitchen." Police officers responded and found the home to be "extremely dirty," "disgusting," and "dangerous." After a children's social worker (CSW) arrived, a police officer clarified that the "cage" was actually "a jail door blocking the kitchen." One child, Connor (born September 2015), was kept behind the door, and he had "free range of the kitchen that also connects to another room." The other child, Kristopher (born December 2012), was permitted to "roam around the house wherever he wants." Another police officer reported that the maternal uncle, who also lived at the house, had stated the metal door was built two years ago "because Connor would run out of the home." The uncle explained that Connor had been behind the metal door since he was three years old, and "stays there 'from morning to [s]undown.'" Mother told the police that Connor was kept behind the metal door for his own safety, saying that her plan was to wean him off it, and expressing her hope that he would "grow out of it."
The CSW assessed the home, describing it as "in deplorable living condition" because it was "filthy, disorganized and extremely cluttered." The floors were "dirty and stained with a brown sticky residue." In the enclosed kitchen area where Connor was kept, there was "a broken table with broken legs, an electrical outlet with exposed wires and jagged glass on a broken window." There was also writing all over the wall. The kitchen was connected to a living room and a bathroom and the area had a couch and television set. While there was less clutter in this area, "the walls, the floors and the one bathroom in this area were extremely dirty."
Under questioning by the CSW, Mother explained that she lived in the home with the maternal grandparents and the maternal uncle. Besides taking care of the children, Mother also cared for the maternal grandmother, who was disabled and had difficulty moving around the house. Mother claimed that she tried to clean the home as much as possible, but was not permitted to throw away most of the things in the home, because they belonged to the maternal grandmother. Regarding the broken table in the kitchen area, Mother stated that Connor had broken the table a few months ago, and that he had destroyed many other things in the home. While the CSW was present, Connor threw food at her several times, spit out carrots, and spilled water on the floor. Mother stated the bars keeping Connor in the kitchen area were installed a few years ago, after Connor had run out of the house and into the street; Mother asserted that Connor lacked a sense of danger. Mother added that the bars were also there to separate Connor and Kristopher, who fought a lot.
Connor was taken to a medical center for an evaluation. He presented with poor hygiene, wearing wet shorts and a pull-ups diaper wet with urine. When the CSW changed his pull-ups, she noted dry feces around his anus. Connor was "extremely hyperactive" and took Adderall twice daily. While at the medical center, he "ran around uncontrollably," "got on top of chairs [and] tables," "tried to open all doors within his reach," "threw books and food on the floor," and "got into [a] physical altercation with his older sibling." Connor did not follow directions and was uncooperative. He was transported to the emergency room and placed on a 72-hour hold. However, the hospital discharged him the next day and he was transported to shelter care, pending placement with a foster family.
The next day, the CSW received text messages from the maternal uncle, stating that he was being thrown out of the home because Mother claimed he "called the police on her." The uncle informed the CSW that Mother typically "yells and screams [at] those kids from the morning till night" and that rather than take care of them, she was "online with some boys or whatever." He opined that Mother was "not mentally capable of taking care of those kids" and the children "should not be with her."
DCFS filed a petition under section 300, subdivisions (b)(1) and (j), on behalf of both children. Counts b-1 and j-1 identically alleged that, for three years, Mother endangered the children by keeping Connor behind a locked door made of metal bars for extended periods of time, in an area that contained a broken table, an electrical outlet with exposed wiring, and jagged glass from a broken window. Count b-2 alleged that the children's home was in a "filthy, unsanitary and unsafe, hazardous condition," including a "brown sticky residue and feces throughout the home." Additionally, the children were filthy and appeared not to have bathed for days; Connor had dried feces in his anus and a soiled diaper. The court (Judge Pro Tempore Emma Castro) ordered both children detained from Mother.
B. The Court Removes the Children and Orders Reunification Services
In an interview with a dependency investigator (DI), Kristopher reported that Mother placed Connor in the kitchen area after he awoke because Connor did not listen and would run into the street. Connor confirmed Kristopher's account. Connor was frequently distracted during the DI's interview and the DI observed that "sometimes Connor misbehaves to get a reaction out of the caregiver or adults in the home."
Mother reported that she was often overwhelmed caring for the children and the maternal grandmother. She reiterated that Connor was kept in the kitchen area because otherwise "he would constantly destroy things, hit and fight with his brother, draw all over the walls, and would leave through the front door into the street." Mother told the DI that Connor had been diagnosed with ADHD and ODD (Oppositional Defiant Disorder) and had been taking medication since he was four. Mother said she was willing to do whatever was necessary to have the children reunified with her.
A home inspection revealed that while there had been some improvements-the feces and sticky residue appeared to have been cleaned up-the floors were still dirty and the house "remained in a somewhat hoarder type condition." In the bedroom where Mother and the children slept, at the end of the bed, there were "a pair of shoes, [a] toy metal trumpet, and a pile of dry dog poop."
At the October 2020 jurisdiction hearing, Mother pled no contest to an amended count b-1, which alleged that, without proper training, Mother had a limited ability to provide appropriate care and supervision for Connor due to his behavioral issues, including diagnoses of ADHD and ODD, which endangered both children. The court dismissed the remaining counts. Turning to disposition, the court removed both children from Mother. Mother was ordered to take a parenting class for children with special needs as well as to undergo individual counseling. The court also appointed a Court Appointed Special Advocate (CASA) for Connor.
C. Six-Month Review Hearing
In an April 2021 status report, DCFS noted that, mostly due to behavioral issues, Connor had been moved several times, and was now in his sixth foster home. DCFS reported that Connor was "finally stabilized in the home of [his] current caregiver" and was "showing great progress with his behavior." Kristopher was on his third foster home.
Mother completed her parenting classes. When asked what she had learned, she responded that timeouts needed to take place in an area without distraction and have a duration commensurate with the child's age, that she should tell the children she loved them, and that she should use positive reinforcement. A CSW observed that it did not appear Mother gained "any new skills or insight as to how to work with her children that do have special needs."
Additionally, Mother was "inconsistent" with statements made to the CSW and to caregivers. For example, Kristopher had informed a CSW that Mother had told him his father tried to kill him. When the CSW asked Mother about this allegation, she denied it. But when a caregiver was monitoring a phone call between Mother and Kristopher and Kristopher asked about this statement, "[M]other would quickly change the subject but would not deny she had disclosed said information to the child." Mother stated that the children enjoyed watching the television show Supernatural. When told the show was inappropriate for the children's ages, Mother stated the boys never watched it. Mother was seen by Connor's Intensive Field Capable Clinical Services team leaving the home of one of Connor's caregivers but, when asked about this, claimed she would never go to the caregiver's home. Finally, during a visit with Kristopher's newest caregiver, Mother stated that Connor's caregiver would just drop him off for visits, and suggested that Kristopher's new caregiver do the same. When the CSW confronted her about this statement, she admitted it was a lie. When the CSW spoke with Connor's caregiver, that caregiver reported that Mother had told her the same thing about Kristopher's caregiver.
Mother visited with both children. In the one visit monitored by a CSW, Mother was observed "to be very kind but unable to adequately supervise both boys at the same time. During the visit monitored by [the] CSW, the child Connor continuously eloped and both CSW and Mother had to chase after him." While they were doing this, "Kristopher would be observed to also ignore the mother's directions." The remainder of Mother's visits were monitored by each child's caregiver and only consisted of Mother and one child at a time. Both caregivers reported that Mother appeared to be a "trigger for each respective child to misbehave." Moreover, despite Mother being told to not spend her time with the children offering gifts, but instead to talk and play with them, the caregivers observed that during visits and calls, Mother would constantly ask what new toy the child wanted or discuss the plan to buy the toy. They also reported that Mother was unable to manage the children's tantrums, and Mother had commented that "buying the child what he requests is easier th[a]n him having a tantrum."
One of the children's caregivers reported to a CSW that Mother appeared to be "coaching" the kids at times and had said she could get Connor to "do and say what she wants." DCFS also reported that Mother lacked insight into why a case was open, and took no responsibility for the issues that occasioned the case. Mother blamed the dirty home on the maternal grandmother and failed to acknowledge the children's behavioral issues "were created due to the mother's home having no structure and the mother not setting boundaries."
At the six-month review hearing, the court (Judge Pro Tempore Diane Reyes) acknowledged Mother's completion of parenting classes but found that "those parenting classes clearly ha[ve] not helped the mother gain any insight as to how these children were traumatized and how to better parent them." The court also found that "the extent of progress made towards alleviating or mitigating the causes that necessitated placement for the mother is very minimal." The court ordered continued reunification services.
D. Twelve-Month Review Hearing
Mother continued visiting with the children separately. At almost every visit, Connor would throw a tantrum when Mother told him "no." Mother was advised not to engage with Connor during these tantrums; when she followed the advice, Connor seemed to have fewer tantrums. Mother's visits with Kristopher went well.
In June 2021, Mother visited both children at the same time. The visit was mostly appropriate, and Mother was able to set "small boundaries" for Connor and to follow through on those boundaries. When Kristopher was caught "assaulting" Connor, Mother was able to place Kristopher in a time-out.
In an October 2021 status report, DCFS reported that both children again had to be moved multiple times due to inappropriate behavior; Connor had been placed in his tenth foster home, and Kristopher his sixth. Connor continued to be destructive, to spit, to curse, and to damage his caregivers' property. DCFS noted that, with one caregiver, Connor had made significant progress-saying "please" and "thank you" and becoming potty-trained-but after "a special visit with [M]other on his birthday," he "was observed to revert to past behavior." A week after Mother's visit, Connor began following the rules again. While the trigger for Connor's reversion was undetermined, the caregiver admitted she had permitted Mother to take Connor to the bathroom on her own, as well as take him to her car to retrieve a gift.
The report also stated that Mother consistently visited both children but "continues to have difficulty in regards to setting boundaries with the children, reprimanding and following through with redirecting the children." While Mother appeared open to accept help for the children, she "commented that she is scared that the children will resent her if she reprimands them." Because the children had been placed geographically far apart, Mother visited the children separately. With Connor, Mother tended to "revert to giving the child her phone to keep him occupied during visits" and needed cues on when to discipline him. When a "Parent Partner" attempted to speak with Mother about this issue, Mother "responded stating that she was a great parent, only had a case with the Department because of her brother's disclosures and was not going to listen further to Parent Partner Virginia's recommendations." The day after Mother visited Connor on his birthday, Connor informed his caregiver that "my mom is the devil and I don't believe in God." He also "once again began urinating on the carpet and drawing all over the walls."
With Kristopher, Mother was "observed to be appropriate," though Kristopher did not seem interested in engaging with her beyond showing interest in what she might be bringing him (e.g., gifts or special food). When Mother needed to reprimand Kristopher, she would talk to him about his behavior and then place him in time-out. This would cause Kristopher to throw a tantrum and call attention to himself and Mother but, if Mother did not engage, Kristopher would stop.
In a December 2021 twelve-month review hearing, the court (Judge Pro Tempore Gabriela H. Shapiro) ordered reunification services to be continued.
E. Eighteen-Month Review Hearing
In a March 2022 status report, DCFS informed the court that Connor was still behaving in destructive ways at his caregiver's home and the caregiver reported she could not leave Connor alone. DCFS provided a "1:1 for the overnight hours." Mother still consistently visited with the children, and was still observed "to have difficulty in regards to setting boundaries with the children, reprimanding and following through with redirecting the children." In visits with Connor, it was observed that Mother continued "to struggle with giving in to all of Connor's requests as she states that she gives into most of his requests so that he doesn't have a meltdown or tantrum." However, in contrast to the previous report, DCFS stated Mother now appeared to be "open and willing to accept help in regards to the special needs of her children."
In a March 2022 report filed by Connor's CASA, Connor's caregiver noted that "Connor loves to be the center of attention, which often results in behavior issues at home and at school." The CASA observed that Connor was "in a stable foster placement where he is learning and respecting boundaries," that the caregiver was "nurturing yet firm and extremely consistent, and Connor is doing well with the structures and routines in [her] home," and that Connor showed the caregiver "love and affection" and "obey[ed] her directions."
In April 2022, Connor's caregiver discussed with a CSW his weekly visits with Kristopher. It was reported that the goal was to increase the visits to twice weekly "once the children can demonstrate that they can get along without always fighting."
In an April 2022 review hearing, the court (Judge Charles Q. Clay III) ordered that both reunification services and the eighteen-month review hearing date would be continued until September 2022, noting that, as of the next hearing date, the children would have been in "protective custody" for two years.
In a September 2022 status report, DCFS informed the court that Kristopher seemed to be doing well in his caregiver's home, but Connor was still exhibiting challenging behavior. Specifically, "Connor continues to be destructive in the home including scratching the television, breaking a Ring doorbell camera, has broken the toilet, repeatedly throwing various items on the roof of the home, removed the smoke detector from the ceiling, repeatedly breaking the screen to his bedroom window and his closet door. [His caregiver] reported that Connor continues defecating in his underwear on almost a daily basis and has hidden his feces in his room. [His caregiver] has reported that in the past month[,] Connor has begun wetting the bed and peeing on the floor. When [his caregiver] attempted to have Connor clean up after himself for defecating in his underwear, he smeared his feces on the wall. [His caregiver] reports that outbursts happen daily and sometimes multiple times within a day and his triggers are unknown." The report noted that Connor had been placed in 14 different homes since detention. He had been with his current caregiver since January 2022.
Mother was still reported "to have difficulty in regard to setting boundaries with the children, reprimanding and following through with redirecting the children." On a recent visit with Connor, he ran into a parking lot and was almost hit by a car. Although Mother instructed Connor to hold her hand in the parking lot, he refused. He also had a hard time sitting still, jumped around while holding his food, and ate food that he had dropped on the floor. Mother instructed him not to, but he again ignored her. Throughout the visit, he yelled and cursed and, when Mother attempted to put him in a time-out, ran to a playground area. When the son of Connor's caregiver arrived to pick him up, it was observed that Connor complied with his instructions. In contrast, Mother's visits with Kristopher had gone so well that DCFS liberalized them to unmonitored; his caregiver reported that Kristopher now seemed happier. DCFS recommended that Kristopher be returned to Mother, but that reunification services be terminated as to Connor, and that the court set a hearing under section 366.26.
At a September 2022 review hearing, the court (Judge D. Brett Bianco) released Kristopher to Mother on an "extended visit," and continued the hearing until November 2022.
In a November 2022 last minute information, DCFS informed the court that Mother had enrolled in a parenting class for children with special needs. The review hearing was continued until December 2022.
In a December 2022 last minute information, DCFS informed the court that Connor was still exhibiting extreme behavioral issues. Mother was attending a parenting class for children with special needs and had attended one session so far. DCFS reported a "slight improvement in regards to the visitation as Connor is able to be redirected from cursing with a couple of prompts and reminders throughout the visit." However, Mother continued to "struggle with consistency of disciplining Connor during the visits when he is behaving in negative manner and . . . [M]other has needed the support of the monitor to redirect Connor and model being consistent."
At the December 2022 eighteen-month review hearing, counsel for DCFS asked that Kristopher be released to Mother, but that family reunification services be terminated as to Connor and that the court set a hearing under section 366.26. Connor's counsel agreed, arguing that if, after two years of services, visits with Connor still needed to be monitored, matters were clearly not at a juncture where Connor could be released to Mother. Kristopher's counsel added that one reason she was comfortable with the release of Kristopher to Mother was because Connor would not be there.
Mother's counsel agreed that Kristopher should be released to Mother but argued that Connor should also be released to her, citing her completion of all court-ordered programs and the lack of a substantial risk to Connor. Acknowledging the difficulties Mother had with disciplining Connor, Mother's counsel pointed out that these issues were not "specific to Mother."
The court (Judge Clay) released Kristopher to Mother, but terminated reunification services as to Connor, finding that "essentially, we're out of time." The court remarked that Connor could not be released to Mother because he "would not be safe at home, that Mother is unable to keep him safe." The court set a hearing under section 366.26 for April 2023.
F. The Court Refuses to Order Bonding Studies
In an April 2023 status report, DCFS reported that Mother visited Connor regularly. Connor's caregiver reported that she had recently monitored a visit between Mother and Connor "does not have any connection with the mother. Connor does not anticipate the visits, does not ask for the mother when there is no contact with her and seems disinterested when he is told that there will be a visit." The caregiver stated that Connor was "ok[ay]" whether Mother visited or not, and opined that there was no "substance" to Mother's visits, and that Mother could not control Connor. She reported that Mother would bring Kristopher to the visits "so the first hour is spent on trying to stop the siblings from arguing and fighting with each other because Connor gets 'bullied.'" The caregiver said that Connor would act disrespectfully toward Mother, requiring the caregiver to intervene to correct his behavior. In a supplemental report, the caregiver expressed her commitment to adopting Connor. Connor was reported to be happy in the caregiver's home, and stated, "I am happy here. [The caregiver] is my mom and I like my family." A social worker observed the two's interaction and judged it "very loving, nurturing and appropriate."
In April 2023, the court continued the section 366.26 hearing to July 2023, finding that while notice of the hearing to Mother was proper, notice to Father was not.
In a June 2023 status report, DCFS reported that Connor's behavior had improved but he was still in need of constant supervision. Mother had weekly, monitored visits with Connor. DCFS noted that "Connor continues to display misbehaviors during visits and [Mother] continues to struggle with managing Connor's behavior as well as managing the sibling, Kristopher, when they are together. During visits, Connor has been observed to hit his sibling, hit [Mother], curse, and attempt to run away from [Mother] and the monitor. Connor and Kristopher have a tendency to play aggressively with each other[,] with each being the aggressor at times. Kristopher tends to be more aggressive with Connor and will take items away from Connor." Mother was observed to discipline Kristopher more than Connor because Kristopher would act out when Mother paid more attention to Connor than him. This in turn upset Connor, who did not want Kristopher to be in trouble. The monitor observed it was difficult for Mother to handle both children at the same time. The report concluded that Mother "continues to struggle with consistency and boundaries during visits with Connor and Kristopher," and stated that, while Mother had improved on putting Connor in time-outs during visits, she also "reward[ed] Connor with items such as candy during the same visits that he was put on time out for a negative behavior" and gave Connor "hugs and a blanket while Connor is in time out." DCFS found Mother "struggled to be consistent with discipline and following through" with Kristopher since his return home-despite Kristopher being "more receptive" and displaying "less negative behaviors than Connor"-and opined that Mother was incapable of caring for both children on her own.
At a June 2023 review hearing, Mother requested the court (Judge Hernan D. Vera) order bonding studies for Connor and her, and for Connor and Kristopher. Connor's counsel asked the court to deny the request, noting the court had a section 366.26 hearing scheduled in a month, and that it was too late to be making such a request. Counsel added that the reports from DCFS were sufficiently detailed to judge the interaction between Mother and Connor. The court denied the bonding-study request, stating:
"In light of the facts that minor's counsel -- that Connor's counsel pointed out relating to the delay in making this argument and the fact that this has been a continued [section 366].26, the court is denying the request for bonding study or for any briefing schedule on that. That's without prejudice. And if a [section 366].26 comes up and there are further delays, Judge Clay can decide if that is needed. And if further facts come up, the court would invite a [section] 388 [petition] on this if there are additional facts that mother's counsel wants to bring to Judge Clay's attention. [¶] But with what I see today and my review of the record, I don't believe that a bonding study is needed or warranted given the record." The court also stated that adoption would be Connor's permanent plan.
Ten days later, Mother filed a section 388 petition, again requesting the court order bonding studies. Mother's counsel attached a screenshot of a text message purportedly from Connor's caregiver to her, telling Mother that she could not handle both Connor and Kristopher and was unable to keep them from fighting; that she was a "Trigger" for Connor because she allowed him to do unsafe things and refused to listen or follow directions; that she failed to keep Connor in a safe environment and lacked a support system; that all communication from that point forward needed to go through the CSW; that Mother was not a victim, and had never owned up to her part in the situation; and that while the caregiver was originally going to permit visits with Mother, she now believed it would cause "to[o] much emotional damage." However, the petition contained no testimony or declaration from Mother or anyone else laying a foundation for this text message.
One week later, the court (Judge Clay) summarily denied the petition, finding "the request does not state new evidence or a change of circumstances."
G. The Court Terminates Mother's Parental Rights
In late June 2023, Connor's CASA filed a report opining that "Connor is in a stable foster placement where he loves his foster family and usually respects the boundaries and rules in the home. [The caregiver] is nurturing yet firm and extremely consistent, and Connor continues to do well with the structure and discipline in [the caregiver]'s home."
At the July 2023 section 366.26 hearing, Mother testified that recently, she and Kristopher had been visiting with Connor weekly for three to four hours per visit. Connor was always excited when the visits commenced; he would embrace Mother and tell her that he missed her and loved her, and then would "go after" Kristopher. The boys would play with each other and Connor would be sad when the visit would end. Connor exhibited some behavioral problems during the visits (cursing and running away) but Mother would address them (tell him it was not nice to curse and walk calmly after him, get him to calm down, and see what triggered him to run). Connor would not want the visits to end, and would tell Mother he did not want to return to the caregiver, although he would not explain why.
Although Mother testified that both Kristopher and the CSW heard Connor say these things, neither was called to testify.
When Mother's counsel asked her what diagnoses Connor had, the court sustained a relevance objection. When asked about her relationship with Connor, Mother testified that they had a "great relationship," and that it had "always been like that since he was a baby." She claimed they would "always be together . . . singing or watching cartoons or doing something." She added she had always been by his side and "he never wanted to leave my side either." When asked why she did not want her parental rights terminated, she responded: "because then that means that I believe that I have failed, that I didn't do what I was supposed to do to keep my child in my life, and I believe that that will take everything completely away from me, that he will not be my son anymore."
Both parents' counsel argued that the court should find the existence of the parental-benefit exception to terminating parental rights and instead order a legal guardianship. Mother's counsel argued that there was strong evidence of a loving bond between Mother and Connor, the severance of which would be detrimental to Connor. Connor's counsel asked the court to terminate parental rights, pointing out the evidence that Connor had no connection with Mother, that the first hour of the visits with Mother and Kristopher were spent trying to get the boys to stop fighting, that Connor was disrespectful to Mother in the visits, and that Connor reported being happy with his caregiver, whom he considered his "mom." Counsel opined that, given the history of Connor's placement with multiple foster families, the willingness of the current caregiver to adopt Connor outweighed any detriment of severing the parental relationship. DCFS's counsel agreed with Connor's counsel, adding her opinion that Mother's testimony was "self-serving," pointing out that the record did not support the picture of the "amazing relationship from day one" that Mother had attempted to paint.
The court began its ruling by denying Mother's request to admit as evidence the text message allegedly sent to her by the caregiver, finding that Mother had failed to lay a foundation for it. It then declined to find the parental-benefit exception, finding that while Mother visited Connor regularly, she had not established the existence of a bond with him; the court stated Mother's testimony on the matter was "self-serving." The court additionally found that any benefit of the continued relationship with Mother was outweighed by the benefits Connor would receive through the permanency and stability of adoption, and that adoption was in his best interest. It therefore terminated Mother's parental rights.
The court had previously declined to admit a letter from the Jeffrey Foundation, which confirmed Mother's enrollment in a parenting class for children with special needs. The court stated that the exhibit was "hearsay without exception" and also found it irrelevant to the "Caden C. factors."
Mother timely appealed the termination of parental rights as well as the court's denial of her request for bonding studies.
DISCUSSION
A. The Court Did Not Err in Refusing to Order Bonding Studies
Mother contends the juvenile court (Judge Vera) erred in refusing to order a bonding study regarding both the relationship between her and Connor, and the relationship between Connor and Kristopher. While our Supreme Court has opined that "[t]rial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony" when deciding on the termination of parental rights, it is undisputed that the decision of whether to order such a study lies in the sound discretion of the juvenile court. (In re Caden C. (2021) 11 Cal.5th 614, 633, fn. 4; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341 ["it is difficult to envision how the court abused its discretion by not ordering a bonding study in this case. The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court's action, the juvenile court could have reasonably refrained from ordering a bonding study"].)
"A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. The appropriate test is whether the court exceeded the bounds of reason." (In re L.W. (2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Thus, our task is not to determine whether the bonding studies could have provided the court with useful information, or whether we would have ordered the bonding studies, but whether the juvenile court's decision not to order them was arbitrary, capricious, or patently absurd. We conclude it was not.
1. Bonding Study Regarding the Relationship Between Mother and Connor
Mother contends the court should have ordered a bonding study regarding the relationship between her and Connor because Connor had previously voiced a desire to reunify with her and enjoyed spending time with her; because Mother remained "devoted" to Connor; because the court needed "expert assistance" to understand how a child like Connor would demonstrate and communicate to others about who was important in his life; and because the information that Connor had no connection with Mother came from the caregiver, who was hostile toward Mother. Mother adds that the court also erred because its denial was based partly on "its belief that mother could obtain an order for a bonding study if the section 366.26 hearing were to be delayed for some reason or if 'further facts came up.'" We conclude that, under all the evidence viewed in a light most favorable to the juvenile court's action, the court did not exceed the bounds of reason when it declined to order a bonding study.
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court terminated reunification services for Mother and Connor in December 2022 and set a section 366.26 hearing for April 2023. Mother was properly notified and appeared at that hearing. It appears that had notice been proper for Father, the court would have proceeded with the section 366.26 hearing, without the benefit of a bonding study. Yet it was not until June 2023 that Mother made her request for a bonding study. "Bonding studies after the termination of reunification services would frequently require delays in permanency planning. Similar requests to acquire additional evidence in support of a parent's claim under section 366.26, subdivision (c)(1)(A) could be asserted in nearly every dependency proceeding where the parent has maintained some contact with the child. The Legislature did not contemplate such last-minute efforts to put off permanent placement." (In re Richard C., supra, 68 Cal.App.4th at p. 1197, fn. omitted.) Neither in the proceedings below nor on appeal does Mother explain why she waited six months to make her request.
At this time, section 366.26, subdivision (c)(1)(A), was substantively equivalent to today's section 366.26, subdivision (c)(1)(B)(i). (In re Richard C. (1998) 68 Cal.App.4th 1191, 1194, fn. 1 ["Subdivision (c)(1) requires the juvenile court to terminate parental rights if it determines by clear and convincing evidence that the child is likely to be adopted, 'unless the court finds that termination would be detrimental to the minor due to one of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. . .' "].)
Further, it was reasonable for the court to conclude that whatever extra information may have been gleaned from a bonding study was not worth the delay a bonding study would have required. The record contained numerous descriptions over an extended period of time of Connor's visits with Mother, the opinions of Connor's caregiver, and Mother's own testimony on the issue.
On appeal, Mother claims that, when she made her request, the section 366.26 hearing was not scheduled for another month, and therefore there was sufficient time to complete the study. We find her assertion dubious at best. (See, e.g., In re M.V. (2023) 87 Cal.App.5th 1155, 1167-1168 [bonding study ordered on November 9, 2020, initial report filed two-and-a-half months later, on January 21, 2021]; In re M.G. (2022) 80 Cal.App.5th 836, 845 [bonding study "completed over a year after it was ordered"]; In re Mickel O. (2011) 197 Cal.App.4th 586, 590 [parties agreed to participate in bonding study on May 22, 2008; report submitted to social worker three months later, on August 21, 2008].)
Mother contends the court needed "expert assistance" to understand Connor's actions and statements, but Connor had been regularly meeting with therapists as part of his Wraparound team. Mother could have subpoenaed either therapist to testify, but did not do so. Mother also points to statements Connor made about wanting to "be with brother, dad and mom" but, in March 2023-three months before Mother made the request for the bonding study-he was reported to have said that he was happy with his caregiver and that the caregiver was "my mom."
The record reflects that Connor had two different therapists, one from the inception of the case until approximately March 2022, and one from April 2022 onward.
It is unclear from the reports in the record whether DCFS asked the children about their desires for each report, or whether they copied and pasted previous statements. For example, in the October 2021 status report, Kristopher was reported to have said, "I don't want to leave my placement and they can't make me." In the March 2022 status report, he was reported to have made the exact same statement. It seems unlikely Kristopher would have said exactly the same thing- complete with "and they can't make me"-four months apart. Connor's statement that he wanted to be with "brother, dad and mom" appeared verbatim in the April 2021, October 2021, March 2022, and September 2022 status reports.
Mother additionally contends that a bonding study was warranted because of the "extreme animosity" harbored by the caregiver to Mother. However, the only evidence Mother cites to support her claim of hostility is a text message purportedly sent by the caregiver to Mother. Nothing in the record indicates Mother ever provided any foundation for this text message. Moreover, even had the text message been properly authenticated, it established no more than the caregiver's frustration with Mother's behavior; it was not evidence the caregiver lied in her statements to DCFS.
In fact, when Mother attempted to introduce the text message at the section 366.26 hearing-a hearing at which she testified-the court refused to admit it because Mother failed to lay a foundation for the exhibit.
On this record, we conclude the court did not exceed the bounds of reason by declining to order a bonding study as to the relationship between Mother and Connor.
Mother also contends the court erred because its denial was based partly on "its belief that mother could obtain an order for a bonding study if the section 366.26 hearing were to be delayed for some reason or if 'further facts came up.'" We reject the premise of Mother's argument. Taken in context, it is clear that the court did not deny Mother's request because she could request the same relief later on if time permitted (e.g., if the section 366.26 hearing were delayed again) or if there were new facts that might change the court's ruling. Rather, the court was simply informing Mother that, although it was denying her request, she was not precluded from making the same request of Judge Clay (who appears to be the judicial officer who had handled most of the hearings on this case since 2022, and who presided over the section 366.26 hearing) if time permitted or there were new facts to bring to the court's attention. Neither statement indicated the court denied Mother's request because she could raise it in front of Judge Clay at another time.
2. Bonding Study Regarding the Relationship Between Kristopher and Connor
Mother argues additionally that the court erred in denying her request for a bonding study between Kristopher and Connor because such a study was necessary for the court to determine the applicability of the sibling exception to the termination of parental rights.
(§ 366.26, subd. (c)(1)(B)(v) [court shall terminate parental rights unless "[t]here would be substantial interference with a child's sibling relationship . . ."].)
First, this issue appears to be moot. The court did not find the sibling exception applicable, and no party on appeal argues it erred in doing so.
In any case, the court did not abuse its discretion in declining to order a bonding study for Kristopher and Connor for the same reason it did not abuse its discretion in declining to order one for Mother and Connor: the eleventh-hour request would almost certainly have caused a delay in Connor's section 366.26 hearing, and the court reasonably determined there was sufficient information in the record regarding the boys' relationship.
We also note that the request for a bonding study between Kristopher and Connor came not from Kristopher's counsel, but Mother's, indicating that Kristopher's counsel did not think the study was beneficial or necessary for her client. Kristopher is also not a party to this appeal.
B. The Court Did Not Err in Finding the Parental-Benefit Exception Inapplicable
"Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental- benefit exception." (In re Caden C., supra, 11 Cal.5th at p. 629.) Our Supreme Court articulated "three elements the parent must prove to establish the exception: (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." (Id. at p. 631, emphasis in original.)
(§ 366.26, subd. (c)(1) ["If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless . . . [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child" because "(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].)
In determining whether a beneficial relationship exists, the court considers "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 Caden C., supra, 11 Cal.5th at p. 632.) In deciding whether termination of parental rights would be detrimental to a child, a juvenile court must consider "what life would be like for the child in an adoptive home without the parent in the child's life." (Id. at p. 633.) "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)." (Id. at p. 634.) "[T]he 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." (Ibid.)
While "[a] substantial evidence standard of review applies to the first two elements," "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." (In re Caden C., supra, 11 Cal.5th at pp. 639-640.)
1. Beneficial Relationship
The court (Judge Clay) found that Mother failed to demonstrate a beneficial relationship, finding her testimony on the subject to be "self-serving and from her perspective." Mother contends the court erred in this finding because it was based on an erroneous exclusion of evidence. Specifically, Mother argued that the court erred in: (a) refusing to admit as evidence a letter from the Jeffrey Foundation confirming her participation in a parenting class for children with special needs; and (b) sustaining an objection on relevance grounds to a question to Mother about what Connor's diagnoses were. Mother argues such evidence is relevant because, under Caden C., "a parent's understanding of her child's needs, and willingness to better that understanding, is relevant to the beneficial parental relationship exception."
We need not consider whether the court erred in refusing to admit the letter from the Jeffrey Foundation. While the court did mention its belief that the letter was irrelevant, it also found it to be "hearsay without exception." Mother does not contend the court erred in this determination, and thus the exclusion of the letter from evidence would be proper even if it were relevant.
As for Connor's diagnoses, they were contained within the record. Mother was permitted to testify as to Connor's behavior during the visits, as well as how she dealt with any misbehavior. Thus, whether she knew the specific names of Connor's diagnoses had no relevance as to whether she and Connor had a beneficial relationship. As our Supreme Court instructed, "the focus is the child." (In re Caden C., supra, 11 Cal.5th at p. 632.) Courts consider "how children feel about, interact with, look to, or talk about their parents." (Ibid.) Mother's knowledge of medical terminology would not help the court in this inquiry. Mother has failed to demonstrate the court erred in finding that she and Connor lacked a beneficial relationship.
Mother contends "Connor had diagnoses of Autism, ADHD, Oppositional Defiant Disorder, Other Health Impairment, and Bipolar Disorder." However, her citations to the record support only that the Downey school district stated that his primary disability was "Other Health Impairment" and that Kristopher, not Connor, met the criteria for the following diagnoses: "Bipolar II Disorder (by history); Attention-Deficit/Hyperactivity Disorder, Combined Presentation (by history); Oppositional Defiant Disorder (by history)."
While Caden C. did find that the issues that occasioned the dependency case could be relevant, it also made clear that "the parent's struggles with issues such as those that led to dependency 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?" (In re Caden C., supra, 11 Cal.5th at p. 638.)
2. Detriment
Because "[i]nteraction between natural parent and child will always confer some incidental benefit to the child," "we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the wellbeing the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, the court found that any benefit Connor would derive from a continued relationship with Mother was outweighed by the benefits that he would receive through the permanency and stability of adoption. Mother contends the court abused its discretion because it "dismissed mother's testimony as expected and self-serving, yet refused to obtain or consider objective evidence that was relevant and necessary for it to properly analyze the exception and determine whether adoption would, on balance, result in harm to this complex young child." We discern no abuse of discretion.
First, Mother's testimony was self-serving. She testified that her relationship with Connor was "great" and had been since he was a baby. She claimed he never wanted to leave her side, and they would always be together, singing, watching cartoons, or otherwise interacting. But a dependency case was brought because Mother claimed she needed to lock Connor up in the kitchen area of her home because otherwise, he would run out the door and into the street. When Connor was first detained from the parents, he presented with poor hygiene, wearing wet shorts and a pull-ups diaper wet with urine, and had dry feces around his anus. Mother's brother claimed Mother typically "yells and screams [at] those kids from the morning till night" and that rather than take care of them, she was "online with some boys or whatever." Mother told a DI that she was overwhelmed caring for both children and her mother. Connor himself reported that he would be locked in the kitchen area after he awoke and would be left in there "[t]ill it gets dark sometimes," and that he would watch TV while confined. Given the contrast between the known facts and Mother's testimony about her relationship with Connor prior to the dependency case, the court had ample reason to question Mother's testimony regarding her visits with Connor during the pendency of the case. In evaluating the court's decision, it is not our function to reweigh the evidence. (In re Caden C., supra, 11 Cal.5th at p. 640 ["In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' . . . Uncontradicted testimony rejected by the trial court' "cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved"' "].)
Second, as discussed above, the court did not err in either electing not to delay proceedings to order bonding studies, in rejecting the Jeffrey Foundation letter, or in finding Mother's knowledge of Connor's diagnoses to be irrelevant. Mother has failed to show the court abused its discretion in finding that any benefit Connor derived from a continued relationship with her was outweighed by the benefits of adoption.
DISPOSITION
The court's orders are affirmed.
We concur: BENDIX, Acting P. J. WEINGART, J.