Opinion
B325390
11-21-2023
In re S.G., a Person Coming Under the Juvenile Court Law. v. S.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP03215A, Phillip L. Soto, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
ADAMS, J.
S.G. (mother) appeals from an order terminating her parental rights under Welfare and Institutions Code section 366.26. She contends the juvenile court erred in finding that the parental benefit exception to adoption did not apply because it inappropriately considered whether mother would have visits with daughter, S.G., after her adoption. We find no prejudicial error and affirm the juvenile court order.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Petition, Jurisdiction, and Disposition
In May 2020, S.G. came to the attention of the Los Angeles Department of Children and Family Services (DCFS) when it received a referral alleging a physical altercation between mother and S.G.'s father's girlfriend inside father's home. During the altercation, then 16-month-old S.G. was outside the home with father. DCFS removed S.G. from mother's home and placed her with a paternal aunt.
DCFS filed a petition alleging S.G. was a person described by section 300, subdivisions (a) and (b), due to mother and father's history of engaging in violent altercations with each other in the presence of S.G., mother's altercation with father's girlfriend, and father's history of engaging in violent altercations with his girlfriend. The petition further alleged that father's history of substance abuse and his current use of methamphetamine and amphetamine rendered him incapable of providing adequate care for S.G., and mother failed to protect S.G. from father.
At the June 2020 detention hearing, the juvenile court ordered S.G. detained from her parents. S.G. remained with paternal aunt. The court granted mother monitored visitation and directed DCFS to provide referrals for services to the parents.
At the October 2020 adjudication and disposition hearing, the court sustained the allegations in the petition and removed S.G. from her parents. The court ordered DCFS to provide reunification services to the parents. Mother was to have unmonitored visits in paternal aunt's home and monitored visits outside of the placement. Mother was not to visit S.G. with father.
Reunification Period
At the April 2021 six-month review hearing, the juvenile court continued reunification services. In a last minute information report, DCFS informed the court that mother and S.G. were attending their court-ordered joint therapy sessions, which were "going very well." DCFS reported that mother and S.G. had a positive bond, and mother was caring and attentive with S.G. DCFS liberalized mother's visitation to unmonitored visits in a public setting. DCFS also reported that father had been seen leaving mother's apartment complex. The court found that both parents had partially complied with their case plans and ordered mother to "ensure she is not in a relationship with father."
In a September 2021 last minute information report, DCFS reported that mother and father had been seen together at a mall. When confronted, mother initially denied seeing father, but after being shown a photo of the incident, she told the DCFS social worker she had only seen father on that one occasion. DCFS reported it was concerned about mother's contact with father because he had engaged in a recent domestic violence incident with another woman, he had not progressed in his case plan, and his substance abuse issues remained unresolved. The juvenile court ordered mother and father to stay at least 100 yards away from each other and to not engage in any direct or indirect contact.
At the October 202112-month review hearing, the court found the parents in partial compliance with their case plans. The court ordered mother to continue unmonitored visits, and again ordered that the parents not be in contact. The court continued reunification services and set an 18-month review hearing.
At the January 2022 18-month review hearing, the juvenile court found the parents had failed to make substantial progress, terminated reunification services, and scheduled a section 366.26 hearing. In advance of the hearing, DCFS filed a last minute information report stating that mother had not made herself available to meet with the social worker or to participate in a child-family team meeting. Mother had also been withdrawn in therapy sessions and appeared to be withholding information about her relationship with father. The court ordered mother to continue unmonitored visits with S.G. It also ordered a bonding study regarding the relationship between mother and S.G. for the section 366.26 report. The court granted paternal aunt de facto parent status.
Section 366.26 Hearing and Related Reports
Dr. Inez Gonzalez conducted the court-ordered bonding study in April 2022. Her assessment took place during a single four-hour visit at a public park and burger stand. At the time of the study, S.G. was three years old. Dr. Gonzalez found that mother and S.G. had a "strong, healthy, and affectionate bond," and severing that bond "will adversely impact the course of [S.G.'s] social, emotional, and behavioral functioning." Dr. Gonzalez reported that at the end of the visit, S.G. asked her mother, "[P]retty please can I stay with you."
In a May 2022 review of the permanent plan report, DCFS reported that paternal aunt continued to provide proper care and supervision to S.G. S.G. was bonded to paternal aunt and was in good physical and emotional health. S.G. told DCFS she wanted to continue living with paternal aunt, with whom she felt safe and happy.
The May report referenced a letter from S.G.'s therapist stating that both mother and paternal aunt were attentive to S.G. and validated her feelings when she was anxious or angry. S.G. sought and received comfort and affection from both of them. Both paternal aunt and mother were open to feedback and worked collaboratively with S.G.'s therapist.
As of May 2022, Mother continued to have twice weekly unmonitored visits with S.G. When DCFS made an unannounced observation of a visit, mother was appropriate and attentive with S.G. Father had monitored visits with S.G. at paternal aunt's home.
Paternal aunt reported that if she adopted S.G., she would allow both parents to visit S.G. so long as their contact was positive and appropriate.
In a July 2022 letter, the director of S.G.'s school reported that S.G. "ha[d] come a long way" since starting the school in September 2020 in terms of socialization, language, and following directions. The director attributed S.G.'s progress to the routines and consistency paternal aunt provided. The director also reported that S.G. looked to paternal aunt for comfort and security.
S.G.'s July 2022 Multidisciplinary Assessment Team report stated that S.G. thrived with consistency, boundaries, and autonomy. The report indicated that paternal aunt had been "understanding and respectful of these needs." S.G. looked to paternal aunt for support, guidance, and soothing, and she often sought hugs or other forms of affection from paternal aunt when she was upset or physically hurt.
In a last minute information report dated November 2022, DCFS reported that during a visit, mother transported S.G. on an electric scooter without having her wear a helmet. Mother had also returned S.G. from a visit sick and feverish, but mother had not stopped the visit or done anything to address S.G.'s apparent sickness. Paternal aunt also reported that the parents did not respect S.G.'s boundaries when S.G. asked them not to hug her during visits. This upset S.G. and caused her to display aggressive behavior at home and at school when classmates hugged her. S.G. told the social worker she sometimes felt mad at her mother for hugging her, but sometimes the hugs made her happy or sad. DCFS also reported that paternal aunt still said she would let mother visit S.G. if S.G. were adopted, as long as mother remained "cordial and respectful."
At the November 2022 section 366.26 hearing, mother argued the beneficial parental relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) Dr. Gonzalez testified that severing the relationship between S.G. and mother would be detrimental. The court asked Dr. Gonzalez whether she was aware that if paternal aunt adopted S.G., paternal aunt would allow mother to visit S.G. Dr. Gonzalez replied she did not know this, and explained that the impact of these visits on S.G.'s bond with mother would depend on their frequency.
The court found mother met her burden of establishing the first two of the three requirements for the parental benefit exception to apply, finding evidence of regular visits and a "very positive bond" between mother and S.G. The court told the parties that the issue they should address in their arguments was the third requirement: "[I]s it more detrimental to break up that bond than it is to benefit the child from adoption?"
In response, S.G.'s counsel asserted S.G.'s bond with mother was not so strong that it would be detrimental to S.G. to sever it when balanced against the permanence of a home with paternal aunt. S.G.'s counsel emphasized that S.G. had been detained from mother at 16 months old and she was now 46 months old, so she had spent the majority of her life with paternal aunt. Counsel also cautioned, "I don't want to put too much emphasis . . . on whether any sort of post-adoption contact or continued visitation may or may not occur, should we terminate parental rights. I think that the courts have found that terminating those parental rights eliminates any legal basis for the continuance of any sort of relationship. And so that shouldn't be taken into consideration ...."
Mother's counsel argued mother had met her burden of establishing prong three of the parental benefit exception based on the evidence of her strong bond with S.G. Mother's counsel also informed the court, "I agree with [S.G.'s counsel] that the caretaker has indicated that she may continue contact [with] the parents if the court terminates parental rights. But the appellate courts are very clear . . . that can't be a consideration ...."
DCFS urged the court to terminate parental rights, maintaining that mother's twice a week visits were like those of "a friendly visitor," and S.G. had lived with paternal aunt for more than half of her life. DCFS also argued that the bonding study was inadequate to prove detriment because it was only based on four hours of observation. DCFS reminded the court that Dr. Gonzalez testified the mother-child bond could be maintained with visits, and paternal aunt indicated she would allow mother to visit.
The court concluded mother had not established the parental benefit exception applied. The court explicitly recognized that under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), it was "supposed to assume terminating parental rights would terminate the relationship." It acknowledged "that's what normally happens[,] [b]ut that's not what's proposed to happen by the caretaker in this case." The court observed that although the mother-child bond would not be "absolutely severed" by adoption in this case, mother's counsel had not produced evidence that "harm would occur even if [S.G.] didn't see mother at all ...." The court explained it needed evidence of detriment to S.G. "if she didn't see her mother again in the future because I declared the parents' rights terminated. There has to be evidence to that effect." The court rejected the findings by Dr. Gonzalez because she only witnessed one four-hour visit and did not consult with the social worker or paternal aunt. The court summarized, "Is there harm that's going to be done to [S.G.] by her severing this bond [with mother]? I don't think I have the evidence to say that it is. And especially not if the caretaker is willing to make arrangements for post-adoptive visits ...." The court continued, "I do not have the legal evidence to show harm if the child were not . . . able to maintain visits with the mother.... we really don't have evidence that the child is being parented by the mother," such as by taking her to appointments and school, "[t]hings that parents normally do. [¶] She's acting as a very high-level playmate ...." The court again noted paternal aunt said she would continue to allow mother to visit with S.G., but reasoned "[t]hat doesn't mean ipso facto that it's going to be harm to the child if she doesn't. But she recognizes that it's better for the child's emotional well-being to maintain this connection. So more power to her. I give her credit for that." The court concluded: "There has to be evidence that [there] will be a harm. And I don't see that evidence." The court found the benefits of adoption outweighed the other options, and terminated parental rights.
After the court terminated parental rights, minor's counsel inquired, "I just want to clarify that the court's finding is that the benefits of adoption outweigh any detriment to terminating parental rights regardless of whether any visits take place after the termination of parental rights; correct?" The court responded, "That's true. Yes, I do find that."
The court declared paternal aunt the prospective adoptive parent. Mother timely appealed.
DISCUSSION
Mother contends the juvenile court erred in finding the parental benefit exception to adoption did not apply because it relied on evidence that paternal aunt would allow mother to visit S.G. if she were adopted. We find no error.
DCFS argues mother forfeited this argument by failing to raise it below. We disagree. After minor's counsel cautioned the court not to consider post-adoption visitation, mother's counsel told the court: "I agree with [minor's counsel] that the caretaker has indicated that she may continue contact for the parents .... [b]ut the appellate courts are very clear as to that can't be a consideration that your Honor looks at. That's In re Caden C., In re J.D." (Italics added.) Mother's counsel therefore expressly indicated disagreement with any ruling premised on post-adoption visitation, citing relevant caselaw. After the court announced its ruling, minor's counsel clarified that the court's decision did not rest on any future visits. Given this clarification, there was no need for mother's counsel to object again.
I. The Parental Benefit Exception
At the section 366.26 hearing, the juvenile court must select a permanent plan for a dependent child with the purpose of providing the child a "stable, permanent" home. (§ 366.26, subd. (b); Caden C., supra, 11 Cal.5th at p. 630.) If the court finds by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights unless the parent establishes that termination would be detrimental to the child for one of the reasons set forth in section 366.26, subdivision (c). (Caden C., at p. 630.)" '[T]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' [Citation.]" (Id. at p. 631.)
Under section 366.26, subdivision (c)(1)(B)(i), the parental benefit exception applies when the court finds termination of parental rights would be detrimental to the child because the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. In Caden C., our high court explained that a "parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
We review the first two elements for substantial evidence and the third for abuse of discretion. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We find an abuse of discretion "only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.] But '" '[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"' [Citations.]" (Id. at p. 641.)
The juvenile court found mother met her burden as to the first two elements of the parental benefit exception. Only the third element of the exception is at issue here.
In assessing the third element of the exception, courts must determine "whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.] 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[ ]' the child, the court should not terminate parental rights. [Citation.] That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 633.)
II. The Court Did Not Err in Terminating Parental Rights
A. The court did not abuse its discretion in finding mother did not establish prong three of the parental benefit test
In reaching its decision, the juvenile court properly engaged in the weighing process set forth in Caden C. and did not rely on the possibility that mother would be able to visit S.G. after adoption.
The court first considered the relationship between mother and S.G., finding they shared a "very positive bond." It addressed the bonding study and found it unpersuasive because it was based on a single four-hour visit. While Dr. Gonzalez reported S.G. did not want to leave her mother at the end of their visit, the court found it common for a three-year-old child to want to be with her mother, particularly one that has a "positive influence" on her life. Considering all the evidence, the court concluded: "I do not have the legal evidence to show harm if the child were not to be able to maintain visits with the mother.... [¶] She's acting as a very high-level playmate .... [¶] . . . [¶] There has to be evidence that [there] will be a harm. And I don't see that evidence." (Italics added.)
While it is undisputed that mother and S.G. shared a positive bond, there is little specific evidence of detriment to S.G. if the relationship was permanently severed. This case therefore presents facts unlike those of Caden C., in which an expert opined that severing the relationship between the mother and child would "compound Caden's other traumas leading to significant emotional fluctuation, confusion, and acting out in the near term and in adolescence." (Caden C., supra, 11 Cal.5th at p. 628, italics added.)
Here, Dr. Gonzalez testified that, in general, if children lose contact with an individual with whom they have a secure attachment, they can lose their ability to connect with others, feel emotions, and have a "relationship" with themselves. Dr. Gonzalez also testified that S.G. viewed mother as her "mother" and paternal aunt as her "aunt." She concluded that "both [will] have a significant [e]ffect" on her relationships in the future, but mother has "the most [e]ffect on [S.G.] right now" because S.G. viewed mother as her "parental figure." But Dr. Gonzalez admitted she came to this conclusion without any observation or knowledge of S.G.'s relationship with paternal aunt. Dr. Gonzalez further testified that S.G. was "anxious" to say goodbye to her mother, and, when asked why, and S.G. replied: "Because that's my mom[,] [a]nd I don't want to go with [paternal aunt]." However, there was no evidence that S.G. suffered when away from mother, whom she saw only twice a week, or that she ever asked to see mother more frequently. Moreover, it is undisputed that S.G. told DCFS she wanted to live with paternal aunt.
While the court was required to consider" 'the strength and quality of the natural parent/child relationship'" to determine how detrimental it would be to lose that relationship, the relationship had to be weighed against the benefits of an adoptive home with paternal aunt. (Caden C., supra, 11 Cal. 5th at p. 634.) The court considered that paternal aunt had taken care of S.G. most of her life. By the time of the hearing, S.G. had lived with paternal aunt for two and a half years.
There was also evidence of the significant benefits S.G. received in paternal aunt's home. She attended regular therapy, and her behavior had improved at school. S.G.'s teacher reported S.G. looked to paternal aunt for comfort and security. There was evidence that S.G. thrived from a consistent schedule, boundaries, and autonomy, and paternal aunt had been "understanding and respectful" of those needs. DCFS reported S.G. was bonded to paternal aunt, received proper care from and was happy with paternal aunt, and S.G. wanted to remain living with paternal aunt. (In re A.L. (2022) 73 Cal.App.5th 1131, 1158 (A.L.) [in evaluating the third prong of the parental benefit exception, considering that minor had done well in the 19 months she lived in prospective adoptive family's home, and minor told social worker she did not want to be moved].)
In sum, there was considerable evidence of the advantages S.G. had already derived from her home with paternal aunt. While there was also evidence that mother and S.G. were warm and affectionate with each other, there is no evidence that S.G. routinely had difficulty separating from mother at the end of visits or suffered from mother's absence between visits. There is also evidence that at times S.G. wanted some distance from mother during visits. At least on some occasions, S.G. did not want mother to hug her because the hugs made her mad or sad. She also subsequently displayed aggressive behavior. The evidence mother presented does not establish that mother's relationship with S.G. was "so important to [S.G.] that the security and stability of a new home wouldn't outweigh its loss." (Caden C., supra, 11 Cal.5th at p. 633; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316 ["frequent and loving contact was insufficient to show the requisite beneficial parental relationship"].) On the record before us, we cannot conclude the court" '" 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Caden C., at p. 640.) The juvenile court did not abuse its discretion by finding mother did not establish the third prong of the parental benefit exception to adoption.
B. The court did not base its conclusion on postadoption contact
Mother argues the juvenile court committed reversible error because it considered that paternal aunt would allow mother to visit S.G. after adoption. In Caden C., "[t]he Supreme Court made clear . . . that the juvenile court . . . is not permitted to consider the possibility of any postadoption contact between parent and child." (In re J.D. (2021) 70 Cal.App.5th 833, 866.) A court "[c]onsidering a potential future relationship between the parents and the minors, for any reason, is impermissible at a section 366.26 hearing." (In re D.P. (2022) 76 Cal.App.5th 153, 169, citing Caden C., supra, 11 Cal.5th at p. 633 ["courts must assume that terminating parental rights terminates the relationship"]; cf. In re C.B. (2010) 190 Cal.App.4th 102, 127 [reversing where court reached conclusion based on "expectation that the children's aunt and uncle would permit the children to have continued contact with mother"].)
However, we find no such error here. While the juvenile court acknowledged that paternal aunt offered to allow mother to continue visiting S.G. after adoption, it did not rely on this fact in finding that mother had failed to establish that terminating parental rights would be detrimental to S.G. The court properly recognized that it needed evidence of harm to S.G. "if she didn't see her mother again in the future because I declared the parents' rights terminated. There has to be evidence to that effect." The court explained mother had not produced any evidence "that would lead me to believe . . . harm would occur even if [S.G.] didn't see the mother at all ...." It concluded, "I do not have the legal evidence to show harm if the child were not to be able to maintain visits with the mother. [¶] . . . [¶] There has to be evidence that [there] will be a harm. And I don't see that evidence." Additionally, at the end of the hearing, minor's counsel clarified that the court's ruling did not rest on whether any future visits took place, and the court confirmed this fact.
Not only must we" 'presume'" that the juvenile court"' "knows and applies the correct statutory and case law" '" (A.L., supra, 73 Cal.App.5th at p. 1156, citing People v. Thomas (2011) 52 Cal.4th 336, 361), but also the juvenile court's statements and references to Caden C. during the section 366.26 hearing indicate it considered the evidence and adhered to Caden C. We have no basis to conclude the juvenile court applied an incorrect legal standard or otherwise abused its discretion in finding the parental benefit exception did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: EDMON, P. J., LAVIN, J.