Opinion
B310181
03-22-2022
In re George S., a Person Coming Under the Juvenile Court Law. v. E.S., et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant E.S. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant C.O. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Brian Mahler, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 17CCJP01968C Emma Castro, Commissioner and Robin Kesler, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant E.S.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant C.O.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Brian Mahler, Deputy County Counsel for Plaintiff and Respondent.
EDMON, P. J.
E.S. (mother) and C.O. (father) appeal from juvenile court orders terminating their parental rights under Welfare and Institutions Code section 366.26 to George S., contending they established that the beneficial parental relationship exception to adoption applied. Mother also appeals orders denying her section 388 petitions requesting reunification services and liberalized visits. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
I. Detention and petition
The family consists of mother, father, and their son, George (born September 2014). Mother also has two other minor children whose father is Edel M. and who are not subjects of this appeal. When the family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS), only George lived with mother, and her other two children lived with Edel M.
In 2017, a DCFS investigation revealed that mother was abusing drugs and appeared to be psychologically unstable. After mother tested positive in November 2017 for amphetamines, methamphetamine, and cannabinoids and was under the influence of drugs while caring for three-year old George, DCFS filed a petition under section 300, alleging that her drug abuse and mental and emotional problems constituted a failure to protect George (§ 300, subd. (b)). That month, the juvenile court detained George, removed him from mother, placed George with Edel, and ordered monitored visits for mother once she was located.
The petition also alleged counts against Edel, but they were ultimately dismissed.
Later, the petition was amended to include allegations as to father; namely, he and mother had a history of domestic violence and he used marijuana, which rendered him unable to care for George.
II. January to May 2018: jurisdiction report and hearing
The jurisdiction/disposition hearing was not held until May 2018. In the meantime, maternal aunt reported that mother was living with friends and had been told to call DCFS. Once, when the social worker was speaking to maternal aunt on the phone, mother could be heard in the background screaming and threatening to break car windows. Maternal aunt thought that mother was having a breakdown or was high on drugs. Father also reported that mother used to hit him when they were in a relationship.
Father had unmonitored visits with George seven or eight hours a day, every other day, and Edel reported that George was happy with father.
At the May 2018 jurisdiction and disposition hearing, the juvenile court sustained allegations concerning mother's drug abuse, her mental and emotional problems, and domestic violence between mother and father, but dismissed the count alleging that father's marijuana use endangered George. George was declared a dependent of the court, removed from mother, and placed with father under DCFS supervision. Father was ordered to submit to six on-demand drug tests, and if his levels spiked above a specified level, then he would have to submit to a full drug program. He was also ordered to attend a parenting program through Project Fatherhood.
No reunification services were ordered for mother, whose whereabouts were unknown. Father was cautioned not to allow mother to have contact with George.
III. Father's violation of court orders and section 387 petition
Father ensured George's needs were met while George was in his care, and they appeared to have a loving, bonded relationship. However, father was not displaying any new parenting techniques and was struggling with being a single parent, as he did not grasp the importance of routine medical examinations, appropriate childcare, and insurance.
Mother still had no contact with George, although father and Edel reported seeing her on the streets.
Father's drug tests for cannabinoids were within acceptable levels, although he did not show up for two tests. Father had enrolled in Project Fatherhood but had attended just one session, in part because of his work schedule.
DCFS learned in March 2019 that father was letting mother see George and live in the alley behind his house. Paternal grandmother said that George was regressing in his behaviors and thought that father was part of the problem. Paternal uncle agreed that George was not developmentally on track and that father needed parenting classes. Father's family described mother and father's relationship as combustible, and they thought that mother was stealing from them because items were missing from the home. Based on this, DCFS removed George from father in April 2019.
DCFS filed a section 387 petition in April 2019 alleging that father had violated court orders by not participating in parenting classes and allowing mother to have contact with George. DCFS reported that due to father's work schedule, father had not visited George since George was removed from his care, but father called him daily. During a call with father, the social worker heard mother yelling at father not to trust "those people." Father confirmed that he was back with mother, and he now denied that any domestic violence had ever occurred between them. Father believed that once mother completed rehabilitation, George should live with them. He admitted that he had let mother see George but did not agree he violated any court order, as he was just trying to make George happy.
In April 2019, the juvenile court sustained an amended section 387 petition, removed George from father, and ordered family reunification services for father. Father was ordered to have conjoint counseling with mother if they were reconciling, to attend parenting classes, and to attend individual counseling to address domestic violence issues. He was given monitored visits twice a week for two hours each visit. The juvenile court did not order reunification services or visitation for mother, who still had not made contact with DCFS. That same month, George was placed with foster parents, and he has lived with them throughout these proceedings.
IV. October 2019: six month review hearing
DCFS reported that George was doing well with his foster family but was struggling with his behavior at school. George called foster parents Grandma Roxy and Grandpa Berto. He enjoyed going to the park with them, and foster mother said his behavior at home was improving. A clinical therapist reported that foster mother and George were forming an attachment.
Father had inconsistently visited George since the last hearing and was only minimally compliant with court orders. Foster mother reported that George had a difficult time after father's visits, and for three days after would wet the bed and act out. Father was taking parenting classes through Project Fatherhood but had drug tested only once and was not in therapy. He was still in a relationship with mother, who still had not made contact with DCFS.
At the October 2019 hearing, the juvenile court ordered continued reunification services for father.
V. August 2020: 12-month review hearing
Due to the COVID pandemic, the 12-month review hearing was continued to August 2020. During this lengthy review period, George continued to do well with foster parents and had grown "immensely attached" to foster mother. Their "significant bond" was such that George had opened up to her about his traumatic experiences and, during therapy, would look to her before making disclosures. He continued to have behavioral issues at school, but his foster mother was advocating for him to get help.
Father said he was benefitting from weekly parenting classes. Although father also said he wanted to keep George healthy and safe, he continued to gloss over his tumultuous relationship with mother and lacked insight about how to prevent George from mimicking bad behavior. Father had seven individual counseling sessions. Father had not drug tested since early October 2019.
Father also had not visited George in person from about September 2019 to April 2020 and did not go to George's birthday party, which according to George, made him sad. Father had one monitored telephonic visit in March 2020, during which George noted that father had missed Christmas and Valentine's Day. When the COVID-19 pandemic broke out, father was allowed telephone visits, but foster mother reported that after a phone call in June 2020, George became defiant, and after father missed another call that month, George threw a tantrum and injured himself. The behaviors stopped after the family worked with George, and father was cooperative and supportive in encouraging George to do his schoolwork and to follow his routine. Father was generally consistent with telephonic visits and video chats, although he missed two visits.
Mother had contacted DCFS in June 2020 and told the social worker that she had completed rehabilitation and had moved to a residential care facility. She also had weekly drug tests, which were positive for THC in the month of June 2020 but negative thereafter except the first week of July 2020.
At the August 2020 review hearing, the juvenile court found that father had made substantial progress in his case plan and continued reunification services for him.
Although the minute order from the hearing states that mother appeared, it does not appear the juvenile court made any orders as to her, and the record on appeal does not include the reporter's transcript of that hearing.
VI. October and November 2020: 18-month review hearing
For the first time since the dependency began, mother appeared in the action and began having DCFS-approved visits once a week with George in September 2020. Mother was affectionate with George during visits and dedicated to what he wanted to do, although she had difficulty providing structure and would let George do what he wanted, even if unsafe. She did not know what was age-appropriate for George and struggled with her emotions when George couldn't recall past events. Foster parents reported that mother and father let George have his way, which made him expect the same at home.
Father was also visiting George twice a week. George reported that during a visit with father, they went to a house where people were" 'smoking drugs, '" and he saw his mother on FaceTime. During another visit, George came home upset. Father had told George not to say what happened during visits and that George was going to live on the streets because of his big mouth. And father had kicked George while they were walking. George ate very little after the visit and required a lot of hugs. Also, a caregiver reported that father's car smelled of marijuana, and father explained it was because he had not emptied his ashtray.
George said he liked living with foster parents, and he had opened up to foster mother about the yelling and hitting he saw while in father's care. Although George said he wanted to reunite with his parents, he also wanted to remain with foster parents.
Father was still attending weekly parenting classes at Project Fatherhood. Father's marijuana usage continued to be within acceptable limits. He and mother had three sessions of couples therapy but had not touched on domestic violence issues.
At the contested permanency plan hearing in October and November 2020, the juvenile court concluded that father was unlikely to reunify with George within the next six months, terminated father's reunification services, and set a section 366.26 hearing. Father was allowed monitored visits twice a week for two hours each visit.
VII. October to December 2020: interim review period
George continued to say he liked living with foster parents because he felt safe and taken care of. He was happy and excited to see mother. However, she also upset him by insisting on hugging and kissing him when he just wanted to bump elbows with her because of the virus. He inconsistently said he wanted to live at father's home with mother and his caregivers, that he wanted to have the foster family's last name, and that he wanted to remain in his caregivers' home because they loved him and were his family.
In December 2020, foster parents reported that mother behaved inappropriately during visits, which had recently become virtual. Mother was telling George he could come and live with her, which made George feel conflicted, because while he liked visiting her, he did not want to live with her. Mother would also probe George about what he ate, becoming upset when he couldn't remember and accusing foster parents of not feeding him properly, which in turn made George sad. During video calls, mother interacted little with George other than to ask inappropriate questions about the foster home or to make promises about the future. Foster parents were having an increasingly difficult time consoling George after visits, and he was refusing to do his schoolwork. Due to mother's behavior during visits and her actions toward the caregivers, George's placement was in jeopardy.
VIII. Mother's first section 388 petition
Mother filed a section 388 petition in October 2020 seeking reunification services and liberalized visitation. Neither DCFS nor George's counsel opposed the petition.
Mother testified at a hearing on the petition. She was not initially engaged in the case because it was hard for her to understand her feelings, but now she was committed to the case. She had enrolled in a residential drug treatment program from June to August 2, 2020, where she took anger management classes, domestic violence classes, cognitive behavior therapy, parenting classes, alcohol and drug education, group counseling, individual counseling and therapy, relapse prevention, and classes about dealing with trauma.
After completing her inpatient program, mother began an outpatient program on August 6, 2020 that included classes on parenting, healthy relationships, awareness, life skills, self-esteem, relapse prevention, individual counseling, and conjoint counseling with father. She developed coping skills and was working on her impulsivity. She had a sponsor and was on the third step of her 12-step program. To be a better parent, she was learning to listen, not to make demands, and to make amends for what she had done. She had addressed domestic violence, including taking responsibility for her behavior. She was in the process of finding a mental health therapist.
Mother was visiting George once a week for one hour. They played, ran, watched the ducks, and she was teaching him how to play basketball. Mother said she stopped asking George questions that upset him, and she denied promising that he could come and live with her. She agreed to abide by all court orders, even if it meant George could not see father.
At the time of the hearing, mother was 32 years old, and she said she had started using drugs when she was 16 years old. She admitted having a problem with marijuana but said she used methamphetamine only "a little bit," the last time in December 2017.
The trial court denied mother's section 388 petition on January 4, 2021, finding that mother had not met either prong of section 388. The juvenile court said that mother's circumstances were changing, not changed. It noted that mother had failed to appear for over three years in the case and had not visited George from November 2017 until at least June 2020. And once visits began, they were for one hour, once a week, monitored. Mother and father were back together, and they had violated numerous court orders that were in place to ensure George's safety and emotional wellbeing. Mother had only recently completed a drug program, had no permanent housing, and had no mental health therapist despite the sustained allegation that she had mental health issues. Further, George had been in a stable placement for two years and was being negatively affected by his parents' comments about getting custody of him. The juvenile court thus found that it was not in George's best interest to grant mother's petition.
IX. George's progress in 2021
George remained emotionally attached to foster parents, who wanted to adopt him. He sought their attention and appeared very happy in their presence. George was attending kindergarten remotely but was having difficulties coping. In January 2021, he had trouble getting up for school and cried when he logged into class. Foster mother attributed this to his anxiety surrounding visitation, and she was teaching George deep breathing exercises to address anxiety.
Since November 10, 2020 father had opted for virtual visits with George, although father had an in-person visit with him in November. During an in-person visit with father on January 19, 2021, father gave George his Christmas presents, which did not include a toy car that father had promised George. Father then took George's presents with him at the end of the visit. The next day, George wouldn't get up for school and then cried during class, saying he was upset because father had lied to him. Because George was going to visit mother that day, the social worker told mother that George was having a bad day and not to ask him about school or how the morning went. Instead, mother was told to play with him and to do his favorite activities. Mother, however, asked George if he wanted to live with her and father at their new apartment. Mother then played with the toys that father had given to George but taken back. At the end of the visit, mother asked George to tell her how much he loved and missed her, but he said he was just going to say goodbye and that was it. George reported that he was confused why his mother had his toys.
After January 19, 2021, George chose to visit parents virtually rather than at a park. He explained he was afraid his mother would take him to her apartment and that his father would yell at him because George had complained about the toys. George also said that he liked speaking to his father" 'only sometimes'" and did not want to speak to mother, so he would just say hi and bye to her at visits. After visits, foster parents and George's teacher reported that George was difficult to manage. His teacher was concerned because in March 2021, he told her about a scary dream and then said he was scared to go to the park to see mother and father. He also did not like his mother kissing him on the mouth with her tongue. George said father was mean to him, hit his face, and George did not like that father failed to give the toys to him.
An investigation into these allegations was inconclusive.
During virtual visits, mother ignored advice to play games, dance, and sing with George-things he enjoyed-and instead asked him questions, reminisced about the past, and spoke about the future, although George was not engaged. When mother asked George if he thought about her, he said" 'no.'" Father visited consistently and was able to engage George. Still, George did not want to continue visits after the allotted time.
Foster parents reported that George had difficulty controlling himself when he knew he was going to visit parents. In March 2021, George broke a speaker at home and said he'd been thinking about his parents, which caused him to worry. He said his parents fought a lot and made bad choices. In April 2021, George made himself throw up when told his parents would be at his dentist appointment.
When interviewed in May 2021, George said he loved foster mother, whom he described as" 'my best grandma Roxy, '" and he felt "great" about foster father. George would be sad if he didn't live with them. He did not like visiting his parents. He did not like his father, who he said smoked and smelled because he did not shower. George said his mother was not a cool person. He did not like her love, saying" 'it gives me too many problems; something about her.'" He also said that mother's problems were giving him a heart attack and that he did not want to feel the way he did. He just wanted to be happy. George did not want mother in his life, explaining that she did not listen to him, and he did not like her questioning him. He wanted to have a different last name than mother.
When interviewed, mother said visits had been going well until January 2021, when George stopped wanting to visit her and stopped being affectionate with her. Mother thought it was something in the foster home because" 'I know it's nothing I did.'" Mother wanted to reunify with George and said she would break off her relationship with father, even though she was pregnant with father's child.
X. Mother's second 388 petition and section 366.26 hearing
Mother filed a second section 388 petition in April 2021, again seeking reunification services and liberalized visits. In support, mother declared that in addition to having completed residential and outpatient treatment programs, she was in couples counseling with father, attending a 12-step program, and was in a sober living facility. DCFS and George's counsel opposed the petition. The juvenile court continued the hearing on the petition so that it could be combined with the section 366.26 hearing.
At the combined hearing in June 2021, mother and father both argued that the beneficial parental relationship exception applied, while DCFS and minor's counsel argued that parental rights should be terminated.
In support of her section 388 petition and her argument that the exception applied, mother testified. She again referred to the inpatient program she had completed, adding that she had been discharged from the outpatient program when she got pregnant. Mother said she had been sober for a year and 11 days and had been seeing a therapist since May 2021. She was on step eight of a 12-step program.
Mother now admitted there had been domestic violence in her relationship with father, explaining that her recent parenting class had helped her identify abuse. Although she had remained in a relationship with father and was seven months pregnant with his child, mother claimed she had recently ended their relationship because she needed to focus on George.
As to George, her visits with him had been virtual as of January 2021. George's therapist had told her that George was working on his issues with her, and mother and the therapist had discussed how she could make visits better by focusing on George's interests. Mother added that George had recently started calling her by her first name, but when she told him it was not proper to do that, he resumed calling her mom or mommy. To fix her relationship with George, mother wanted to do joint counseling with him. And although mother did not have educational rights as to George, she had participated in George's individualized education program in March 2021.
Father also testified. He too had virtual visits with George twice a week since January 2021, at George's request. Visits had been for an hour, although recently George wanted to just say hi and bye, so they lasted five to 25 minutes. During visits, father and George talked about toys and the tooth fairy because George had just lost some teeth. Father felt that George was being coached by the foster parents' daughter because he would say things that were atypical of a six-year-old. George would have a "straight face" while the foster parents or their daughter were present, but then would put on a big smile when they left.
Although the social worker reported that father had not visited George between George's birthday in September 2019 and April 2020, father said he had but could not recall when. When asked why he did not go to George's birthday party in September 2019, father said he was not invited.
The juvenile court first ruled on mother's section 388 petition, finding it was not in George's best interest to grant it. The juvenile court first noted that George was doing really well in his placement and in school. Although mother attended one IEP conference, she did not understand George's behavioral struggles. Mother was unable to control her emotions during visits, and her behavior had, at one time, put George's placement in jeopardy. The juvenile court also expressed doubt that mother had ended her relationship with father because mother had known father since middle school, had maintained the relationship throughout the dependency, got engaged to father in May 2021, and was now pregnant with father's child, which caused mother's removal from her outpatient program. Mother also minimized the domestic violence in her relationship with father, and although she might have discussed domestic violence issues in her classes, she had not taken a domestic violence program. The juvenile court therefore denied the petition.
Turning to the section 366.26 hearing, the juvenile court found that the beneficial parental relationship exception did not apply, stating that neither parent had "a parental relationship" with George. Mother in particular had not "exhibited a parental relationship" since the petition had been filed and had only "stepped up" in the past six months. Mother's behavior was so poor during some visits that it had jeopardized George's placement. The juvenile court also did not believe that parents were no longer in a relationship. Although father said he wanted George to be safe and healthy, father continued to involve himself with mother. Father also continued to test positive for marijuana, he took George to a party where people were smoking drugs, and father's car had one time reeked of marijuana. Father then yelled at George for reporting some of this. Also, father's telephonic visits had been restricted due to his inappropriate behavior.
The juvenile court observed that after four years, parents were not in a position to have even unmonitored visits. The juvenile court also found mother's description of her visits with George as "just playing, not occupying a parental role." The juvenile court referred to George's request that visits be only virtual and that he felt safe with foster parents as reasons for its finding that the exception did not apply. It repeated that mother and father had not "occupied a parental role" and that it was in George's best interests to have permanency. Accordingly, the juvenile court terminated parental rights. Mother and father timely appealed.
Although the juvenile court did not say at the hearing whether mother and father regularly visited George, the minute order includes findings they had not and that parents had not established a bond with George.
DISCUSSION
I. Mother's section 388 petitions
Mother first contends that the trial court abused its discretion in denying her two section 388 petitions seeking reunification services and liberalized visitation. After describing what section 388 requires a parent to show and the standard of review, we discuss each petition and why the trial court properly denied each.
A. Section 388 and the standard of review
Section 388 accords a parent the right to petition the juvenile court to modify any of its orders based on changed circumstances or new evidence. To obtain the requested modification, the parent must demonstrate by a preponderance of the evidence both a change of circumstance and that the proposed change of court order is in the child's best interests. (§ 388; In re Alayah J. (2017) 9 Cal.App.5th 469, 478; In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) The change in circumstance must be such that the problem that brought the child into the dependency system has been removed or ameliorated; the change must therefore be significant or substantial. (In re Mickel O., at p. 615.) Circumstances must have changed and not be merely changing. (Ibid.) To determine whether this showing has been made, the juvenile court may consider the entire factual and procedural history of the case. (Id. at p. 616.)
Whether to modify an order under section 388 rests in the juvenile court's discretion and will not be disturbed on appeal unless there has been a clear abuse of discretion. (In re Mickel O., supra, 197 Cal.App.4th at p. 616.)
B. Mother's first section 388 petition
We cannot find that the trial court abused its discretion in finding that mother failed to meet her burden of proving either prong under section 388 as to her first petition, which she filed just one month after she began visiting George and several months after completing an inpatient program.
The circumstances that brought George into the dependency system included mother's abuse of drugs, her emotional and mental health issues, and domestic violence. When her section 388 petition was heard in January 2021, mother had completed one short inpatient drug program and had been sober for about seven months. However, mother's drug problem spanned half her life, as she was 32 years old at the hearing and her problem began when she was 16 years old. In view of mother's lengthy history of drug use, the juvenile court did not abuse its discretion by concluding that a showing of materially changed circumstance required more than such a relatively brief period of sobriety. (In re N.F. (2021) 68 Cal.App.5th 112, 121; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety insufficient to show changed circumstances given parent's history].)
In addition to only having a brief period of sobriety, the juvenile court did not find mother's testimony about her drug usage credible. Mother said she primarily used marijuana, minimized her methamphetamine use, and denied using any other drugs. But the juvenile court noted that mother had tested positive for cannabinoids, methamphetamines, and amphetamines. The evidence therefore suggested that mother was still denying the extent of her problem.
As for mother's mental health issues, at the time of the section 388 hearing, mother still did not have a therapist. She therefore failed to show that she had addressed her mental and emotional problems. Thus, this circumstance was not even changing, which was significant because the record shows that mother's drug and mental problems were extreme, having led to strife with her family and with father's and Edel's families, separation from not just George but mother's two other sons, homelessness, and criminal behavior, i.e., stealing from father's family.
Finally, the juvenile court did not abuse its discretion by finding that mother failed to establish that it was in George's best interest for her to have reunification services and liberalized visitation. By the time mother's section 388 petition was heard, neither parent was receiving reunification services, and a rebuttable presumption thus arose that continued foster care was in George's best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) George was in a stable placement with foster parents who wanted to adopt him and to whom he was emotionally bonded. Although mother was in a sober living facility that she said allowed children, she had no plan for the future.
Mother appears to suggest in her opening brief that she appeared in this case at its outset and yet was never offered reunification services. Her citations to the record do not support that she appeared in the case at its outset, and there is no real dispute that mother did not make an appearance in the action until late 2020.
Mother's self-motivation and initiative-even if late-were admirable. However, her completion of a two-month program and several months of short, monitored visits with George amounted to changing, not changed, circumstances. And given that George was in a supportive, loving environment with foster parents, it was in his best interest not to upset that in the absence of changed circumstances.
On appeal, mother's first response to all this is that DCFS supported the petition. While we do not dismiss that fact, it is insufficient to show that the juvenile court abused its discretion, and the trial court had no obligation to follow DCFS's recommendation. Mother's second response is a vague reference to the COVID-19 pandemic and that it created problems for George. While we agree it created problems for George-and all children-it is unclear how the pandemic specifically relates to mother's petition, and it was mother's burden to make any such connection.
C. Mother's second 388 petition
Mother filed her second section 388 petition in April 2021, and it was heard in June 2021. It too asked for reunification services and liberalized visitation.
We focus on whether mother satisfied her burden of showing that reunification services and increasing visitation were in George's best interests and find that the juvenile court did not abuse its discretion in finding that she did not. Other than a bare statement in her petition that a change in order would foster a sense of security for George, promote his development, and was imperative for his development and emotional health, mother introduced no evidence to support the assertion.
Further, the weight of the evidence was to the contrary. George had lived half his life with foster parents and was emotionally attached to them. George, foster parents, and George's teacher all said that visits with mother traumatized George. Mother engaged in behaviors that upset George: she asked questions he did not want to answer, she told him he would come and live with her, she could not control her emotions, and she did not respect or understand his needs, including that he did not want to call her mom or mommy or hug and kiss her. Since January 2021, George had asked that all visits with mother (and father) be virtual. Mother completely lacked insight as to why George might have made this decision, insisting it was" 'nothing I did.' "
Mother responds by repeating that DCFS supported her first petition. As unpersuasive as that fact was in our analysis of the first petition, it is even less so here. We therefore find that the juvenile court did not abuse its discretion by denying the petition.
II. The beneficial parental relationship exception
Both mother and father contend that the juvenile court erred in not applying the beneficial parental relationship exception to termination of parental rights, primarily because the juvenile court misapplied the law. We do not agree.
A. The elements of the exception and standard of review
Section 366.26's express purpose is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the juvenile court has decided to end reunification services, adoption is the legislative preference. (§ 366.26, subd. (b)(1).) When the juvenile court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates terminating parental rights unless the parent can demonstrate an exception applies. (§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 625.)
The exception at issue is the beneficial parental relationship, which asks whether any harm from severing the parent-child relationship outweighs the benefit of placing the child in an adoptive home. (In re Caden C., supra, 11 Cal.5th at p. 632.) The parent bears the burden of establishing by a preponderance of the evidence (1) regular visitation and contact with the child, (2) a relationship, the continuance of which would benefit the child, and (3) terminating parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i); In re Caden C., at p. 631.)
The first element requires consistent, not sporadic, visitation. (In re Caden C., supra, 11 Cal.5th at p. 632.) The second element involves numerous factors, such as the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, the child's specific needs, and how the child feels about and interacts with, looks to, or talks to the parent. (Ibid.; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) The child must have a substantial, positive, emotional attachment to the parent. (In re Caden C., at p. 636.) The attachment must be significant and something more than the incidental benefit that interaction between a parent and child will always confer. (In re Autumn H., at p. 575.) The third element considers how losing the parental relationship would affect the child. (In re Caden C., at p. 633.) Would the benefit of a new adoptive home outweigh the harm to the child from losing a significant, positive relationship with the parent? (Id. at pp. 633-634.) The overall inquiry thus is a "subtle enterprise." (Id. at p. 634.)
In considering these elements, the juvenile court should not compare the "parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (In re Caden C., supra, 11 Cal.5th at p. 634.) That is partially because nothing that happens at a section 366.26 hearing allows the child to be returned to the parent. (Ibid.) The comparison is also unfair because a noncustodial parent, due to court orders, may not be able to perform traditional parental roles, for example, taking a child to school or medical appointments, and overseeing educational progress.
The first two elements of the exception are reviewed for substantial evidence. (In re Caden C., supra, 11 Cal.5th at p. 639.) The third element involves factual determinations reviewed for substantial evidence, but the ultimate decision, whether terminating parental rights would be detrimental to the child, is reviewed for abuse of discretion. (Id. at p. 640.)
However, in contrast to In re Caden C., the juvenile court here found that parents did not carry their burden of proving the exception. In such a case, where the trier of fact has "expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of a witness, even if that testimony is uncontradicted])." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, overruled on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.) Where, as here, the issue turns on a failure of proof, we determine whether the evidence compels a finding in appellants' favor as a matter of law, asking whether that evidence was uncontradicted and unimpeached and of such a character and weight as to leave no room for a judicial determination it was insufficient to support a finding. (In re I.W., at p. 1528.)
As we now explain, the evidence does not compel a finding in either mother's or father's favor.
B. Mother did not meet her burden of proving the exception.
We first note that mother does not address how she established each element of the beneficial parental relationship exception. Accordingly, she has forfeited the contention on appeal. (See, e.g., City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 [we disregard conclusory arguments unsupported by pertinent legal authority or the reasoning by which appellant reached conclusions]; accord, Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-786.)
Although mother has forfeited any other argument regarding the beneficial parental relationship exception, we nonetheless discuss why she did not meet her burden of establishing any of the exception's three elements.
First, mother did not regularly visit George. George was removed from mother in November 2017, when he was three years old. She did not have any DCFS-approved contact with George for almost three years, until September 2020. While mother did have unapproved visits with George while he was in father's physical custody, mother cites no authority that it is proper to consider such unapproved, unmonitored contact in analyzing the beneficial parental relationship exception. For the next year and a half, from April 2019 to September 2020, mother had no contact with George. From September 2020 going forward, mother maintained regular visits with George within the parameters set by DCFS and by George, who asked visits to become virtual in January 2021. Thus, in the four years George has been a dependent of the court, mother had monitored, weekly visits with George for about nine months, and the nature of those visits deteriorated from in-person to virtual. Given that mother did not visit George for most of the dependency, the evidence does not compel a finding she regularly visited him.
Mother also failed to show she has a relationship with George, the continuance of which would benefit him. (See, e.g., In re Caden C., supra, 11 Cal.5th at p. 632.) There was little to no evidence that the relationship between mother and George was substantial and positive and that he was emotionally attached to her. (Compare with In re J.D. (2021) 70 Cal.App.5th 833, 856-858 [significant evidence of bond between mother and child, including encouragement and support during visits, intimate moments and exchanges, and child's desire for mother's attention].) At the section 366.26 hearing, George was almost seven years old and had spent over half his life out of mother's care. When she became involved again in his life, she exhibited little understanding of his needs, ignoring advice to play with him and not to ask him upsetting questions or to suggest he would live with her and father, and failing to respect that he did not want to call her mommy or hug her.
And although George was very young and his feelings were undoubtably complicated, he was nonetheless clear, in his words and in his behavior, that he did not want to have a close relationship with mother: he stopped calling her mommy, asked for virtual visits, made himself throw up when told she and father would be at a dental appointment, and said that her problems were giving him a heart attack. There is no evidence that he, for example, confided in her, as he did to foster mother, to whom he opened up about the trauma he suffered in mother and father's care. There is no evidence he sought comfort from mother, craved her attention, or that she was able to soothe him when he was upset, as foster mother was able to do. Instead, the evidence falls well short of showing a "significant attachment" resulting from a parent's attention to the child's "needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother similarly did not meet her burden of proving the third element of the exception, that terminating her parental rights would be detrimental to George. Instead, the evidence we cited above shows that maintaining the relationship was detrimental to him. After visits, George would act out, at home and at school, and it would take days to calm him down. And a reason George asked that visits be virtual was his fear mother would take him to live with her and father at an apartment. This fear speaks not only to how he felt about mother but also to the safety and love George felt in foster parents' home.
Mother provides little response to this, except to say she and George would have benefitted from joint therapy. That may be, but it overlooks why joint therapy did not happen: mother did not appear in the dependency action until two years had passed. Consequently, she was not given any reunification services which might have included therapy.
C. Father did not meet his burden of proving the exception.
Turning to father, he too has failed to address how he satisfied the individual elements of the beneficial parental relationship exception, thereby forfeiting the issue on appeal. (See, e.g., City of Santa Maria v. Adam, supra, 211 Cal.App.4th at pp. 286-287.) Nonetheless, as we did with mother, we address the elements in brief.
We will assume without deciding that father satisfied the first element of the exception, regular visitation. However, even so assuming, we cannot find that father met his burden of establishing the second element, a relationship the continuance of which would benefit George. George was removed from father in about April 2019, when George was four years old. By the time of the section 366.26 hearing in June 2021, George had been out of father's care for over two years and George was almost seven years old. Undoubtably, father and George had positive interactions over the course of their relationship, but they also had negative ones, such as when father took George to a place where people were smoking drugs, yelled at George when he reported it, and told George that his big mouth would cause him to be homeless. And by the time of the section 366.26 hearing, George was distancing himself from father by requesting virtual visits, limiting even those visits, and by declaring he did not want to see or to live with father. Thus, the evidence shows at most that interaction between father and George conferred "some incidental benefit" but stopped short of a "significant attachment." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The final element of the exception, a detriment finding, is based on the child's best interest, and requires the juvenile court to "decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home." (In re Caden C., supra, 11 Cal.5th at p. 632.) Father made no attempt to show any detriment to George from severance of their relationship. (See, e.g., id. at p. 633 [expert suggested that severing relationship would lead to emotional instability, acting out, difficulties in school, insomnia, anxiety, or depression].)
Nor could he. A parent who has met the first two elements of the exception may still lose on the third. In In re A.L. (2022) 73 Cal.App.5th 1131, for example, the father established he consistently visited his daughter and that they had a significant bond. Even so, the child had been with a prospective adoptive family for 19 months, the placement was stable and loving, the child had adjusted and blossomed, she was close to a baby the family was caring for, and she wanted to live with them. (Id. at 1158.) The child had no difficulty separating from father after visits, and the social worker opined that the benefit the child received from father was outweighed by being in a structured loving home with the adoptive family. Under such circumstances, the juvenile court properly found that father had not met his burden of showing detriment. Even where a parent clearly loves his child, that will not be enough to meet the parent's burden of establishing detriment when the benefits of maintaining the parent-child relationship do not outweigh the harm from losing a secure and stable new home. (Id. at pp. 1158-1159.)
Such is the case here. While we have no doubt father loves George, father did not show that severing their relationship would harm George. Father cites no evidence, and we discern none, that George would suffer, for example, difficulties in school, anxiety, acting up, or emotional instability if separated from father. To the contrary, it appears that a continued relationship with father was creating such difficulties. Otherwise, the evidence was overwhelming that George was in a loving, stable home with foster parents who met all his needs and with whom George wanted to live. Any harm from severing George's relationship with father was outweighed by the benefit of placement in his adoptive home.
D. Harmless error
Notwithstanding the foregoing, both parents contend that the juvenile court misapplied the law because it improperly focused on whether they had a parental relationship with George. That is, in reliance on In re Caden C., some courts have held it is improper for a juvenile court to rely on a parent's failure to occupy a "parental" role in the child's life in determining whether the beneficial parental relationship exception applies. (See, e.g., In re B.D. (2021) 66 Cal.App.5th 1218, 1230; In re J.D., supra, 70 Cal.App.5th at pp. 863-865.) The Court of Appeal in In re J.D., at page 834, for example, reversed an order terminating parental rights in part because the juvenile court had found that the parents did not have a "parental relationship" with the children, whose grandmother was meeting their daily needs and to whom they turned for protection and care.
While In re Caden C., supra, 11 Cal.5th at page 634, found it is improper to require a noncustodial parent to perform the "parental" functions that a custodial caregiver performs, the court did not say it is improper to describe the type of bond the exception requires as parental. (See In re A.L., supra, 73 Cal.App.5th 1152.) In many cases, as in this one, the term "parental" simply is shorthand for the type of substantial, positive, emotional bond that must exist for the beneficial parental relationship exception to apply. As such, "the strength and quality of the parent's relationship with the child, including whether that parent has a parental role, is a relevant consideration to the court's detriment finding." (Id. at p. 1157.) We therefore do not agree that the juvenile court's mere reference here to a parental relationship or role shows a misunderstanding of the law.
Nor do we agree that the juvenile court rested its decision on a finding that parents' failure to address the issues leading to the dependency barred the exception's applicability. (See generally, In re Caden C., supra, 11 Cal.5th at p. 637.) While such failure, standing alone, is not a bar to the exception, the issues leading to the dependency remain relevant to the exception's application. (Ibid.) In In re Caden C., at pages 637 to 638, for example, mother's unresolved mental health issues were relevant because they caused her to undermine her son's placement, which had a negative effect on him.
Here, although the juvenile court commented on mother's failure to finish programs that would allow George to reunify with her, the totality of its comments suggest it was tying any such parental failures to the negative effect they had on George. Hence, the juvenile court also commented that mother had absented herself for the majority of the proceedings and that her behavior during visits had jeopardized George's placement. The juvenile court also noted that although father said he wanted George to remain healthy and safe, father continued to be in a relationship with mother that had been characterized by domestic violence. By this, we infer the juvenile court was commenting on evidence that mother had a negative impact on George's health.
Even if the juvenile court erred in considering whether mother and father occupied parental roles or otherwise failed to engage in the analysis In re Caden C. requires, the error was harmless for the reasons described above, i.e., mother and father failed to meet their burden of establishing the exception's applicability. (See In re B.L. (2012) 204 Cal.App.4th 1111, 1116 [we review court's ruling, not its rationale, and affirm if correct on any ground]; see also In re J.P. (2017) 15 Cal.App.5th 789, 798 [harmless error applies in dependency proceedings even when error is of constitutional magnitude]; In re Celine R. (2003) 31 Cal.4th 45, 60 [error reversible only if reasonably probable result would have been more favorable but for error].)
DISPOSITION
The orders denying mother's Welfare and Institutions Code section 388 petitions and terminating mother's and father's parental rights and setting adoption as the permanent plan are affirmed.
We concur: EGERTON, J., LIPNER, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.