Opinion
B333188
09-30-2024
In re M.G., a Person Coming Under the Juvenile Court Law. v. M.S., et al., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant M.S. Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant F.G. 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NOT TO BE PUBLISHED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 an order of the Superior Court of Los Angeles County, Nos. 17CCJP02830, 17CCJP02830A Tiana J. Murillo, Judge.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant M.S.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant F.G.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
WILEY, J.
Mother M.S. and father F.G. appeal the second termination of their parental rights to son M.G. Because neither parent met their burden of showing an exception to adoption applied, we affirm. Citations are to the Welfare and Institutions Code.
I
M.G. was born to the mother and father in 2017. The mother and father both suffer from developmental delays and are Regional Center clients. The mother also suffers from bi-polar disorder and a mood disorder not otherwise specified. The father also suffers from schizophrenia, adjustment disorder, and anger management issues. The mother and father lived with the father's aide, who helped care for M.G.
When M.G. was about six months old, the mother became frustrated and hit the aide, who was putting M.G. in a car seat. At a doctor's appointment a few weeks later, the doctor found M.G. was not thriving and medical staff were concerned about the parents' aggression toward each other and ability to care for M.G. A juvenile court ordered M.G. removed from the parents and placed him in medical foster care with Mr. and Ms. M.
M.G. was a medically fragile child. He received nourishment through a g-tube and was diagnosed with gastroesophageal reflux disease and laryngomalacia. As he got older, M.G. also became a Regional Center client to address his developmental delay and autism. Mr. and Ms. M. were able to meet all of M.G.'s needs.
The juvenile court granted the mother and father reunification services for 24 months, but determined they had failed to progress to a point where they could safely care for M.G.'s special medical needs. The court then terminated their parental rights, finding the parental-benefit exception to adoption did not apply. In so doing, the court relied on a bonding study performed by Dr. Geraldo D. Canul.
The parents appealed the termination of their parental rights. This court reversed the order in In re M.G. (2022) 80 Cal.App.5th 836 (M.G.), finding the juvenile court relied on factors deemed impermissible under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). (M.G., supra, at pp. 841-842.) The Canul study the juvenile court relied on did not provide substantial evidence that a substantial, positive, emotional bond did not exist between the parents and M.G. (Id. at p. 851.) This court faulted the study for failing to provide information about the bond in light of the child's and the parents' various limitations. (Id. at p. 851.) This court remanded the case for the juvenile court to hold another section 366.26 hearing in line with the principles announced in Caden C. (M.G., supra, at p. 852.)
When the juvenile court received the remittitur, it reinstated visitation for the parents and ordered a new bonding study to be performed by an evaluator agreed upon by the parties. The father asked that the study be postponed for four months to allow the parents to redevelop their bond after not having seen M.G. for over a year. The juvenile court declined, stating this court had not required that. In fact, visits resumed at the end of January 2023 and the evaluation took place at the beginning of June, after four months of visits.
The Department established a visitation schedule that allowed the parents one hour of virtual visits Thursdays and two hours of in-person visits on one to two other days depending on M.G.'s school schedule. The Department and caregivers noted it was difficult to provide additional visit time because on weekdays M.G. awoke at 5:30 a.m. to get ready for school and did not return home until 4:00 p.m. Then he had a g-tube feeding, and was in bed by 7:30 p.m.
The parents visited with M.G. at Chuck E. Cheese, a mall, a park, and in the DCFS office. M.G. generally greeted the parents with a hug at the beginning of the visit and would hold their hands to be led to the first activity. Monitors observed that M.G. enjoyed running and having the parents chase him. In many activities, he would lead the way, frequently looking back to ensure his parents were following. The mother in particular was successful at providing a constant warm, affectionate attitude toward M.G. and showing support and love. The parents would bring snacks and activities for M.G. to do. When watching songs or videos on one of the parents' phones, M.G. would sit in between the parents or on his father's lap.
When M.G. became upset during a visit, the parents were sometimes successful in redirecting him. Often, however, they looked to the social worker who was monitoring the visit for help. M.G. engaged in running away and hitting the parents at times. Monitors observed that although the parents appeared in good spirits at the beginning of visits, the father would at times appear frustrated by the end, especially during visits at the park that involved a lot of physical exertion to keep M.G. from running into the parking lot. The mother also appeared frustrated but did not let it affect her interactions with M.G. The father sometimes grabbed M.G. with a firm grip to stop him. Multiple monitors noted that the father at times seemed to need directions from the mother to engage with M.G. During at least three visits, when M.G. became upset and was crying, the mother terminated the visits early.
The parents missed the majority of the virtual visits.
Dr. Inez Gonzalez conducted a second bonding study. Her report was intended to determine the relationship between the parents and child, whether there was a positive bond between the parents and child, and whether the child would suffer a detriment if the bond was severed. She was to take the parents' and child's special needs into account in her study. She reviewed the detention report, the jurisdiction/disposition report, recent status review reports, and the minute order ordering the study. She observed a monitored visit between M.G. and his parents at a park on June 4, 2023. She also spoke with the social worker monitoring the visit.
Gonzalez provided a report on July 31, 2023. After receiving it, the mother's counsel filed a walk-on request and asked the judge to provide an additional bonding study as this one did not analyze interactions between M.G. and his caregivers. The court clarified that inclusion of observations of interactions with the caregivers was permissive, not mandatory, but ordered Gonzalez to do follow up to include further details on the family's disabilities and the special needs of M.G.
Gonzalez submitted a revised study on August 22, 2023. In discussing the issue with a social worker, Gonzalez stated, "[T]he truth of the matter is that he's not attached to them." In her report, Gonzalez concluded that M.G. had an ambivalent attachment to his parents. She noted that although there were positive aspects of the relationship and times where he accepted contact, at other times he resisted contact. Gonzalez reported there were moments of positive bonding between M.G. and the parents, but the parents primarily initiated these. Gonzalez explained that M.G.'s diagnoses meant it would be easier for him to form a secure attachment with someone he found consistent and predictable. Gonzalez further explained how the mother's and father's own diagnoses likely made it difficult for them to be consistent and predictable. Gonzalez noted that the father, although pleasant at the beginning of the visit, seemed less so by the end, possibly because of his physical ailments and his frustration with trying to problem-solve when M.G. misbehaved. Similarly, although the mother was loving throughout, she had difficulties responding to M.G.'s outbursts and misbehaviors. As with the father, her own limitations likely make it more challenging to problem-solve and respond appropriately when M.G. acted out. The family's collective diagnoses suggested it would be hard for them to be attuned to each other's needs and engage when M.G. is misbehaving.
Because M.G. was ambivalently attached, Gonzalez opined that severing the relationship would not be as detrimental to M.G. as if he had a secure attachment. She also stressed the importance of M.G. forming secure attachments because ambivalent attachments could lead to increased aggression, defiance, anxiety, and other issues.
The mother filed a 388 petition, which the court denied.
At the second section 366.26 hearing, the father testified that M.G. hugged him and wanted the father to pick him up during visits, his physical ailments did not keep him from bonding with M.G., and that M.G. would be sad if their relationship ended. The mother submitted stipulated testimony that M.G. called her mommy and is always affectionate and happy to see her at visits. A parent partner for the father testified as to the positive emotional bond she observed when monitoring visits. The juvenile court had each party submit a written closing brief in lieu of closing statements.
The juvenile court terminated parental rights again. The court found the parental-benefit exception did not apply. Although the parents had consistently visited M.G. overall, there was not evidence of a substantial, positive, emotional bond. The court noted that it found Gonzalez's study and the reports from the DCFS monitors more credible than those submitted by the parents' witnesses because they included accounts of positive and negative aspects of the visits.
The parents appeal.
II
Substantial evidence supported the juvenile court's finding that M.G. does not have a substantial, positive, emotional bond with the parents. We affirm.
A
Once a court determines a child cannot be reunified with the parents, it must select a permanent plan for the child. (Caden C., supra, 11 Cal.5th at pp. 630-631; § 366.26.) If the court finds by clear and convincing evidence that the child is likely to be adopted, the court must select this option unless one of certain enumerated exceptions applies, including the parental-benefit exception. (Caden C., supra, 11 Cal.5th at pp. 630-631; § 366.26, subds. (b) &(c)(1)(B)(i).) Parents seeking to apply the parental-benefit exception bear the burden of showing: 1) they maintained consistent visitation to the extent permitted; 2) a relationship exists which benefits the child; and 3) the detriment of losing the relationship would not be outweighed by the benefits of the stability and permanency of adoption. (Caden C., supra, 11 Cal.5th at p. 631.)
We review a juvenile court's findings under the first two prongs for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) Because the final prong involves a mixed question of fact and law about a particularly nuanced and subtle determination, we apply an abuse of discretion standard. (Caden C., supra, 11 Cal.5th at pp. 640.)
While the parents cite the appropriate standard of review, the mother misapprehends its application. She asserts the question is whether substantial evidence showed she had a beneficial relationship with M.G. This is inaccurate. We review the record as a whole, viewing the evidence in the light most favorable to the judgment, to determine if substantial evidence supports the trial court's conclusion. (Caden C., supra, 11 Cal.5th at p. 640.) It is irrelevant whether there is substantial evidence that could support a different finding. (Ibid.) Importantly, we do not reweigh the evidence or make credibility findings. (Ibid.)
B
The juvenile court found the parents maintained consistent visitation. This finding is unchallenged.
C
The juvenile court found a substantial, positive, emotional bond did not exist between M.G. and his parents. In making this determination, the Caden C. court identified "a slew of factors" courts can consider, including the child's age, how much of the child's life was spent in the parent's custody, the positive and negative effect of interaction between the parent and child, the child's particular needs, and how the child feels about, interacts with, or talks about the parent. (Caden C., supra, 11 Cal.5th at p. 632.)
The juvenile court here noted M.G. had been out of his parents' custody for "virtually his entire life." While his parents argue this is an unfair element to consider because it is not their fault, Caden C. explicitly identifies this as a proper factor. (Caden C., supra, 11 Cal.5th at p. 632.) Throughout their arguments, parents protest consideration of things out of their control. This misunderstands the focus of the analysis. Blame is irrelevant. The court must determine if there currently exists a bond worth saving. That is the extent of the inquiry under the second prong.
The juvenile court noted the record was full of efforts by the parents, especially the mother, "to be loving and appropriately attentive" and "positive moments" between M.G. and the parents. The court further noted that Gonzalez's report "provides detailed information about the nature of the child's relationship with his parents and the context of the family's particular needs and disabilities," distinguishing it from the previous study. The court concluded the "interactions between the child and the parents do not demonstrate a substantial, positive, emotional attachment," but rather one that is "undeveloped given the observation that he shows an ambivalent attachment among other observations including those of the social workers." The court found that the observations of Gonzalez, a neutral party, were corroborated by the reports of multiple other monitors over the course of many visits. As the Caden C. court notes, the focus is always on what is in the best interests of the child. (Caden C., supra, 11 Cal.5th at pp. 632-634.) As loving as a parent may be, the court must inquire how the child feels. Thus, the juvenile court appropriately found the parents had not met their burden under the second prong.
The parents attack the juvenile court's reliance on the Gonzalez report, but their challenges are meritless. Gonzalez did as the court asked and provided information about the nature of M.G.'s relationship with his parents, including information about the family's limitations and particular needs.
The parents' principal complaint is that Gonzalez's study did not include information about whether M.G. is capable of forming a secure attachment. They argue she should have observed M.G.'s bond with his caregivers to provide a baseline. While both this court and the juvenile court suggested such an observation might be useful in evaluating the bond, neither required it. (M.G., supra, 80 Cal.App.5th. at. p. 850.)
Here, Gonzalez was able to evaluate the bond without such comparison. Moreover, to some degree, whether M.G. is capable of forming a secure bond may be beside the point. The juvenile court must determine if M.G. will suffer a detriment if his relationship with his parents is severed. Whether he is equally ill-bonded to others does not affect that question. Gonzalez evaluated M.G., taking into consideration his particular needs and abilities, and found he is not bonded to his parents. That answers the relevant question before the juvenile court.
The parents also fault Gonzalez for finding M.G.'s running away and hitting behaviors mean he does not have a secure attachment. They note he acts the same way with others and it is part of his disability. This does not stop it from being a relevant consideration. The father points out M.G. also hits the social worker and the caregivers, suggesting he does not have a secure relationship with them. As noted above, that may be true. It would not change the analysis here. But, in fact, the record supported that M.G. engaged in these behaviors less with his foster family.
The parents complain neither the juvenile court nor Gonzalez gave enough credit to previous reports of positive visits or the parents' monitors' reports. Again, the juvenile court focuses on whether there is a positive substantial bond now. And, as the court explained, it found the reports of the parents' monitors less credible because they were uniformly positive, even though it was unlikely any visit with a child with M.G.'s particular needs would be. The juvenile court stated Gonzalez, a neutral party, gave an account very similar to that provided by the Department's monitors. Thus the court found those reports deserved more weight. Gonzalez explicitly documented there were positive moments and identified the types of behaviors the parents' monitors described, such as hugs, holding hands, and sitting near the parents. But these behaviors were not the only relevant ones and did not tip the balance in finding a secure attachment.
The mother also faults the juvenile court for focusing on whether M.G. had an "emotional" bond with parents. But this is exactly what the second prong of Caden C. requires: in determining whether there is a relationship the child would benefit from continuing, courts evaluate whether there is a "substantial, positive, emotional attachment to the parent." (Caden C., supra, 11 Cal.5th at p. 636.) The mother incorrectly argues that this court faulted Canul's study for focusing on an emotional bond. In fact, this court faulted it for not focusing on the emotional bond. (M.G., supra, 80 Cal.App.5th at p. 851 [questioning "whether Dr. Canul actually evaluated the parties' emotional bonds"]; ibid. [criticizing "Dr. Canul's repeated concerns about M.G.'s other, nonemotional issues"].)
The parents finally fault the juvenile court for crediting the caregivers' statements that M.G.'s behaviors were worse after visits with the parents. The parents point to evidence in the record that he engaged in such behaviors before visits started again. While the parents are correct M.G. did engage in such behaviors before, the caregivers stated the behaviors were worse after visits. The record shows that after one visit, M.G. had a particularly bad day at school, hitting other students and throwing things.
Substantial evidence supports the juvenile court's finding that the parents did not meet their burden under the second Caden C. prong. We need not reach the third prong.
DISPOSITION
We affirm the order.
We concur: GRIMES, Acting P. J., VIRAMONTES, J.