Opinion
H051064
02-20-2024
In re A.G., a Person Coming Under the Juvenile Court Law. v. T.G., Defendant and Appellant. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 19JD000073)
ADAMS, J. [*]
Under the parental-benefit exception (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i)), a juvenile court exercising dependency jurisdiction should not terminate parental rights to allow for adoption if "the parent has maintained regular visitation and contact with the child, the child would benefit from continuing the relationship, and termination of that relationship would impose a detriment on the child." (In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).) In this case, T.G. (Mother) appeals from the juvenile court's order terminating her parental rights and selecting adoption as a permanent plan. She contends the juvenile court did not conduct a proper analysis of the parental-benefit exception. Because we agree, we reverse the order terminating parental rights and remand the matter to the juvenile court.
All statutory references are to the Welfare and Institutions Code, unless otherwise stated.
I. Factual and Procedural Background
This is Mother's fifth appellate case arising from the dependency proceeding involving A.G. On our own motion, we take judicial notice of the dockets and records in the four prior cases: H048774, H048778, H049216, and H049678. (Evid. Code, §§ 452, 459.)
In 2019, the Monterey County Department of Social Services (the department) received referrals that Mother was neglecting her then three-year-old son, A.G. The department attempted to informally intervene and provide Mother with voluntary family maintenance services but she was uncooperative. A passerby subsequently found A.G. wandering, unsupervised, in the street and approximately two miles from his home and contacted police. When police and social workers returned A.G. to Mother, she said that she was unaware A.G. had left the home.
A. Section 300 Petition
The department filed a section 300 petition on behalf of A.G., and the juvenile court ordered him detained. At the combined jurisdictional and dispositional hearing, the court sustained the department's petition, declared A.G. a dependent of the court, and ordered him removed from Mother's custody with reunification services. A.G. was three and a half years old at the time. The department attempted to place A.G. with a foster home, but the first two homes terminated the placement due to A.G.'s behavioral issues. A.G. was then placed with a third foster home, where he stayed for three years. A.G. was later diagnosed with "autism, food aversion, language delay, asthma, and tip toe walking."
B. The First Section 366.26 Hearing and Placement with Maternal Aunt
After Mother received reunification services for 18 months, the juvenile court found that Mother "failed to participate regularly in court-ordered treatment programs" and that her "progress toward alleviating or mitigating the causes necessitating placement of [A.G.] in foster care has been minimal." The court terminated further services for Mother and set the matter for a section 366.26 selection and implementation hearing.
Mother filed a notice of intent to file a writ petition (case no. H048774) and an appeal (case no. H048778) from the order terminating reunification services and scheduling a section 366.26 hearing. However, Mother did not ultimately file a writ petition and later requested dismissal of the appeal.
At the first section 366.26 hearing on May 11, 2021, the court found that A.G. had a probability of adoption. Mother appealed from that order. While the appeal was pending, the parties jointly moved for summary reversal based on their agreement that the juvenile court erred by finding A.G. was adoptable. (In re A.G. (Mar. 10, 2022, H049216) [nonpub. opn.].) This court granted the motion and remanded the matter "for the limited purpose of vacating the finding of adoptability and holding a new permanency selection hearing to consider long-term foster care as a permanent plan." (Ibid.) Thereafter, the juvenile court found that A.G. was not adoptable and ordered that he remain in foster care "with a permanent plan of adoption or legal guardianship."
Mother also appealed from this order (case no. H049678). This court dismissed the appeal after Mother's counsel filed a letter brief stating the case but raising no specific issues. (See In re Phoenix H. (2009) 47 Cal.4th 835.)
In June 2021, A.G.'s maternal aunt requested placement of A.G. with her in Idaho. The department facilitated video visits between maternal aunt and A.G., and maternal aunt visited A.G. in California. At the conclusion of the visit, A.G. clung to maternal aunt, did not want to let her go, and said "I want to go with you." A.G. also cried for 20 minutes while holding onto maternal aunt, continued crying on the drive back to his foster home, and repeatedly told the social worker that he "wanted to go with his aunt."
In June 2022, A.G. was placed with maternal aunt. According to the social worker, A.G. was "happy to go with [maternal aunt] to Idaho," and it was the "easiest transition" the social worker had ever seen. A.G. "settled in right away" to maternal aunt's home and appeared "very happy" and "thriving" in his new surroundings. A.G. did well in school and participated in therapy and services for autism, including occupational therapy, physical therapy, and speech therapy. Maternal aunt helped A.G. with his appointments and took steps to ensure that he received educational and behavioral support.
Maternal aunt eventually indicated she wished to adopt A.G. At the plan review hearing on November 8, 2022, the juvenile court determined foster care was no longer appropriate in light of maternal aunt's willingness to adopt A.G. and set a second section 366.26 hearing. In its report prepared in advance of the hearing, the department opined that adoption was in A.G.'s best interest because A.G. had an "immediate attachment" to maternal aunt, and maternal aunt was committed to securing ongoing supportive and therapeutic services for A.G. The department recommended the court find A.G. adoptable, terminate Mother's parental rights, and select adoption as the permanent plan. Mother opposed adoption and expressed a preference for legal guardianship.
C. The Second Section 366.26 Hearing
1. Reports and Testimony of Social Worker
Mother initially saw A.G. two or three times per week through a combination of unsupervised in-person visitation and video visitation. In December 2020, the juvenile court terminated Mother's in-person visitation and allowed only video visitation because Mother did not communicate with the department and took A.G. to unauthorized locations. A member of Mother's household had also contracted COVID-19. The social worker informed Mother that in-person visitation could be restored when the household member tested negative for COVID-19.
Mother did not provide the department with a negative COVID-19 test for her household member and continued to have only video visitation with A.G. The visits initially took place twice per month but were later reduced to once per month. Mother sometimes showed up late for the visits, and the quality of the visits were "up and down." There were "several months" when Mother missed visits with A.G. altogether. The social worker opined that A.G. was not adversely affected by the missed visits. He stated that A.G. did not often ask for Mother and seemed "fine not seeing her for a period of time."
After A.G. was placed with maternal aunt in 2022, video visitation between Mother with A.G. was facilitated and supervised by maternal aunt. The visits generally went well, and Mother behaved appropriately during the visits. The social worker testified that the majority of visits were initiated by Mother rather than A.G.
The social worker was aware of two in-person visits between A.G. and Mother after A.G. was placed with maternal aunt. Those visits occurred in December 2022 and March 2023, when maternal aunt brought A.G. to California. A.G. "cried for a little bit" at the end of the December visit, but had "no problem" leaving with maternal aunt. Once back in Idaho, A.G. said to maternal aunt: "I'm happy to be home, this is my home." After the March visit, A.G. was "happy to leave again," and told maternal aunt: "I'm happy to be home."
The social worker did not believe A.G. had an emotional connection with Mother. Although he missed her and asked for her, it was the social worker's opinion that A.G. viewed Mother as "a platonic friend" rather than a "parental figure." The social worker noted that A.G. was removed from Mother's custody when he was three and a half years old, and had spent four of the seven years of his life with caretakers other than Mother. He opined that Mother was not in a position to meet A.G.'s needs.
In connection with A.G.'s current placement, the social worker testified that A.G. was "very attached" to maternal aunt and her partner, and that A.G. identified the couple as his parents. He never had to persuade A.G. to move in with maternal aunt, and A.G. communicated on more than one occasion that he "wanted to be with [maternal aunt]." The social worker stated: "[A.G.] is a totally different child than when I first met him. He has more confidence, he is more relaxed, he is more calmer [sic] when I see him; he just seems more at home." The social worker emphasized that due to A.G.'s autism diagnosis, he needed occupational therapy, speech therapy, physical therapy, and had "neurologist appointments, many, many appointments," all of which maternal aunt facilitated.
Finally, the social worker stated that terminating Mother's parental rights would not cause A.G. emotional harm because A.G. saw maternal aunt as his parental figure, not Mother. He opined that adoption by maternal aunt was in A.G.'s best interest.
2. Testimony of Mother
Mother testified she had in-person visitation with A.G. three times a week at the end of the reunification period. After in-person visitation was terminated, Mother had video visits twice per month. Her visitation became "much more frequent[]" once A.G. was placed with maternal aunt. Mother had in-person visits with A.G. in December 2022 and March 2023. The in-person visits occurred at her parents' home in Salinas and took place over the course of several days. Mother played games with A.G., took him to the park and the zoo, made snacks, and planted flowers with him. A.G. referred to Mother as "mom" and looked to her for permission and comfort. Mother testified that during one visit, A.G. wanted to be "held and cuddled and kissed and snuggled all the time," and wanted to share his feelings with her. A.G. would become upset and emotional at the end of their visits, would tell Mother he loved and missed her, and wanted to make plans for future visits. While in Idaho, A.G. would send text messages to Mother from his iPad and write letters saying that he missed her.
Mother testified that she visited A.G. in Idaho several times. While there, Mother volunteered at A.G.'s school, assisted A.G. with homework, spoke with one of A.G.'s teachers, and celebrated A.G.'s birthday and Halloween. Mother disciplined A.G. during one of the visits by giving him a "time-out," and maternal aunt kept Mother involved in disciplinary matters relating to A.G. Mother stated that A.G. would become emotional when she left Idaho. Mother believed that A.G. was emotionally attached to her, and that reducing visitation would have a detrimental effect on him.
3. Testimony of Maternal Aunt
Maternal aunt testified that she supervised in-person and video visits between A.G. and Mother, including the in-person visits in December 2022 and March 2023. A.G. was upset and emotional at the end of the in-person visits, but was able to "jump[] right back" into his routine in Idaho. Maternal aunt stated that while A.G. missed Mother after each visit, he was also happy and relieved to return home.
Maternal aunt believed the loss of his relationship with Mother "would have a negative impact" on A.G. Nevertheless, she stated that A.G. was a "resilient little kid" who "would be able to overcome" the separation from Mother. Maternal aunt emphasized it was not her intention to prevent A.G. and Mother from having a relationship. Maternal aunt confirmed that she and her family would provide A.G. with support whether the court ordered adoption or guardianship.
D. Order Terminating Parental Rights
After hearing testimony and argument, the juvenile court found by clear and convincing evidence that A.G. was adoptable and that Mother's reunification services had been terminated. As for the parental-benefit relationship exception, the court first found that mother had regular visitation and contact with A.G. but noted that A.G. had spent "the majority of his time" in the care of someone other than Mother. The court described A.G.'s needs as "great" and stated that his autism required "focus and consistency, and . . . long-term planning . . . [Y]ou have to look at his whole life and be able to plan."
The juvenile court then considered the "positive impact" Mother had on A.G. during their visits and interactions. The court found that A.G. had a "good relationship," as well as "somewhat of an attachment," to Mother. The court also stated: "I think [A.G.] enjoys talking to his mom. I think [A.G.] enjoys visiting with his mom. I believe [A.G.] loves his mom. I believe [A.G.] enjoys having a relationship with his mom. But as [A.G.] said, home is with [maternal aunt], permanency is with [maternal aunt], services are with [maternal aunt], and future is with [maternal aunt]."
The juvenile court balanced the benefits of adoption against the detriment A.G. would suffer from the loss of the parental relationship and concluded that "the scales decidedly and overwhelmingly tip towards permanency." The court reasoned that while A.G. loved Mother and enjoyed his relationship with her, A.G. considered his home to be with maternal aunt and had not asked to live with Mother.
The court explained that the ongoing relationship between Mother and A.G. appeared to have been "fostered by, and fed by, [maternal aunt]," and indicated its belief that maternal aunt would continue to foster the relationship after termination of Mother's parental rights. The court concluded that "on balance, permanency is in the best interests of [A.G.], based on his needs, based on the circumstances, [and] based on the challenges that [maternal aunt] would have to face in a legal guardianship." Accordingly, the court terminated Mother's parental rights and ordered adoption as the permanent plan.
II. Discussion
A. General Legal Principles and Standard of Review
"After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the selection and implementation hearing as provided under section 366.26." (In re A.L. (2022) 73 Cal.App.5th 1131, 1149 (A.L.).) "At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child. [Citations.] In fact, it is not permissible to order reunification at the section 366.26 hearing." (Caden C., supra, 11 Cal.5th at p. 630.) "By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness," and "there have been a series of hearings involving ongoing reunification efforts." (Cynthia D. v. Super. Ct. (1993) 5 Cal.4th 242, 253.) Instead," '[a]t a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship, or long-term foster care.'" (In re B.D. (2021) 66 Cal.App.5th 1218, 1224 (B.D.).) "[T]he preferred choice is adoption, coupled with an order terminating parental rights." (A.L. supra, 73 Cal.App.5th at p. 1149; accord In re C.P. (2023) 91 Cal.App.5th 145, 153.) Thus, pursuant to subdivision (c)(1) of section 366.26, "[w]henever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.'" (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).)
A "parent may avoid termination of parental rights in certain circumstances defined by statute," including the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 629.) "In the context of the dependency scheme prescribed by the Legislature, we interpret the . . . exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) To establish the exception, a parent must prove three elements by a preponderance of the evidence: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at pp. 629, 631, italics omitted.)
We emphasize, however, that the parental-benefit exception, like the others listed in section 366.26, subdivision (c)(1)(B)," 'must be considered in view of the legislative preference for adoption where reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53.) To that end, "[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
We review the trial court's analysis of the parental-benefit exception according to the standard outlined by the Supreme Court in Caden C. "[A] substantial evidence standard of review applies to the first two elements." (Caden C., supra, 11 Cal.5th at p. 639.) "[T]he third element, given it is a hybrid of factual determinations and discretionary balancing, is 'properly reviewed for abuse of discretion.' (Caden C., supra, 11 Cal.5th at pp. 639, 640.)" (In re Dy.P. (2022) 76 Cal.App.5th 153, 165 (Dy. P.).) "But where, as with the parental-benefit exception, 'the appellate court will be evaluating the factual basis for an exercise of discretion, there likely will be no practical difference in application of the two standards.'" (Caden C., supra, 11 Cal.5th at p. 641.)
B. Application of the Beneficial Parental Relationship Exception
On appeal, Mother argues that the juvenile court erred in its analysis of the third element of the parental-benefit exception because, in balancing the detriment to A.G. from the termination of Mother's parental rights, the court improperly relied on the prospect that maternal aunt would continue to facilitate contact between A.G. and Mother after adoption. The department argues that no error occurred because the court's conclusion that the benefits of adoption "overwhelmingly" outweighed the detriment to A.G. was not predicated solely on the possibility of future contact between A.G. and Mother.
1. The Juvenile Court's Findings
We first discuss the juvenile court's findings on the three elements of the parental-benefit exception. The record shows the court found that Mother satisfied the first element; that is, she had maintained "regular visitation and contact" with A.G. (Caden C., supra, 11 Cal.5th at p. 631.) The court stated: "And when you balance it out, the Court has to take a look at, you know, has there been regular visitation and contact? I would say yes here." The department concedes this point.
The record is somewhat unclear as to the juvenile court's finding on the second element, which required Mother to show "a relationship, the continuation of which would benefit [A.G.]." (Caden C., supra, 11 Cal.5th at p. 631.) Whether continuing a parental relationship is in a child's best interest depends on many factors, including the age of the child, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, and the child's particular needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.) In addition, "courts often consider how children feel about, interact with, look to, or talk about their parents." (Caden C., supra, 11 Cal.5th at p. 632.)
The juvenile court did not make an express finding on the record that a beneficial relationship existed between Mother and A.G., and the parties characterize the court's comments differently. While Mother claims the court found that she met her burden on this element, the department argues that "[s]ubstantial evidence supports the court's finding that A.G. did not have a significant, positive, emotional attachment" to Mother. Nonetheless, it appears that the juvenile court impliedly found that Mother had a beneficial relationship with A.G. (See A.L., supra, 73 Cal.App.5th at p. 1156 [no requirement that the juvenile court must state specific findings for elements of parental-benefit exception]; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [appellate record supported implied finding that parents failed to establish parental-benefit exception].) The court observed that despite A.G.'s "great" needs related to autism and having spent a "majority of his time" outside of Mother's care, Mother had a "positive impact" on A.G. The court noted that A.G. "recognizes his mom," "likes to have his visits with mom," and asked about future visits with Mother. The court also stated: "Does the child have a substantial positive emotional attachment to the parent? I would say he has a good relationship."
The juvenile court's implied finding that Mother and A.G. had a beneficial relationship is supported by the record. Although Mother did not comply with all aspects of her case plan early in the dependency proceedings, she went on to maintain regular contact with A.G. through a combination of video and in-person visitation. After A.G. was placed with maternal aunt in Idaho, Mother's video contact with A.G. increased. Mother had two in-person visits with A.G. in California and several in Idaho, one of which was two weeks long. During the in-person visits, Mother cared for A.G. as a parent. She volunteered at A.G.'s school, helped him with homework, made snacks, celebrated Halloween and his birthday, and disciplined A.G. Mother and A.G. shared time together at the park, the zoo, and by playing games or planting flowers.
Maternal aunt and Mother also testified that A.G. was emotional after the in-person visits with Mother in California; maternal aunt stated that A.G. cried for 10-to-15 minutes after one visit and for five minutes after the other visit. And when the juvenile court asked maternal aunt whether A.G. would be impacted if he had no contact with Mother, maternal aunt answered: "if they were totally cut off, yeah, it would be negative."
We reject the department's position, presumably based on the social worker's testimony, that the juvenile court found that A.G.'s relationship with Mother was not beneficial because A.G. saw Mother only as a "platonic friend" and did not have a "significant, positive, emotional attachment" to Mother. Without citation to the record, the department speculates that maternal aunt made "beneficial efforts" to facilitate contact between A.G. and Mother merely "to keep family relations copacetic for the benefit of A.G. due to his emotional fragility." The department also suggests that Mother did not meet her burden of proof by only showing "frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The departments' view, however, is based on a restrictive reading of the record and does not account for the testimony of maternal aunt and Mother. Maternal aunt stated that A.G. saw Mother as his "mom" and maternal aunt as his "aunty," and that A.G. would seek assistance and comfort from both Mother and maternal aunt. Similarly, Mother testified that A.G. sought physical affection from her, told her that he loved and missed her, and shared his feelings with her. According to maternal aunt, A.G. would often ask to speak with Mother-"one week he might be asking a lot . . . maybe the next week we're not communicating as often, and then the next we are"-and she would contact Mother to schedule calls because A.G. would get upset if Mother was busy when he called her. Some of A.G.'s calls with Mother lasted 45 minutes, while others were five minutes.
Mother argues we should decide this case solely on her opening brief because the department's brief includes factual statements and contentions without citations to the record, in violation of California Rules of Court, rule 8.204. While we have considered the department's brief, we do not consider those statements and contentions that are not supported by the record.
While maternal aunt also agreed that she wanted to keep her "family relationships intact," we do not discern from her testimony that she sought to preserve "copacetic" family relations just because A.G was emotionally fragile. Rather, the record supports the conclusion that maternal aunt facilitated the relationship between A.G. and Mother because she recognized they were bonded as parent and child, and that Mother was an important and beneficial presence in A.G.'s life. To that end, maternal aunt testified that while A.G. could eventually overcome a permanent separation from Mother, she did not believe that outcome was in his best interest.
In assessing the second element of the parental-benefit exception, we are mindful that "rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Caden C., supra, 11 Cal.5th at p. 632; see In re J.D. (2021) 70 Cal.App.5th 833, 865 (J.D.) [type of relationship necessary to establish parental-benefit exception "is not narrowly defined or specifically identifiable, because parent-child relationships are endlessly varied"].) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "A positive attachment between parent and child is necessarily one that is not detrimental to the child but is nurturing and provides the child with a sense of security and stability," and "an emotional attachment is one where the child views the parent as more than a mere friend or playmate and who's interactions with the parent were not ambivalent, detached, or indifferent." (B.D., supra, 66 Cal.App.5th at p. 1230, (fn omitted).)
Here, the record shows that A.G. and Mother were not just playmates or "platonic friends." To the contrary, Mother routinely interacted with A.G. and fulfilled a parental role for him to the extent she was permitted by the juvenile court and maternal aunt. Regardless of whether his ongoing connection to Mother was facilitated by maternal aunt or someone else, A.G. plainly derived comfort, affection, love, direction and stimulation from his relationship with Mother despite the lack of day-to-day contact. (See In re S.B. (2008) 164 Cal.App.4th 289, 299 (S.B.) [not reasonable "to require the parent of a child removed from parental custody to prove the child has a 'primary attachment' to the parent, or to show the parent and the child have maintained day-to-day contact"]; B.D., supra, 66 Cal.App.5th at p. 1225 [although typical, day-to-day contact is not necessarily required in a parent-child relationship].) Nothing in the record suggests that A.G. was ever ambivalent, detached or indifferent during his interactions with Mother. Instead, A.G. enjoyed spending time with Mother and found it emotionally difficult to separate from her at the end of their visits.
The fact that A.G. also had a strong, positive and significant relationship with maternal aunt and easily settled into her home after three foster care placements does not negate the harm A.G. would experience from the loss of his significant, positive, and emotional attachment to Mother. (See J.D., supra, 70 Cal.App.5th at p. 865 ["more than one person can occupy an important, emotional role for a child"].) Nor do we find the significance of Mother's parental relationship diminished by maternal aunt's commendable dedication to addressing A.G.'s special needs. After all, "the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)" at the section 366.26 hearing because parental placement is not an option. (Caden C., supra, 11 Cal.5th at p. 634.)
An implied finding that A.G. had a beneficial relationship with Mother is further supported by the fact that the juvenile court reached the third element of the parental-benefit exception: whether a "termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631.) The court stated: "And we have to take a look at permanency and adoption. Does that outweigh the parental benefit relationship where the Court would have to say that there's a compelling reason for determining that termination would be detrimental to the child." Although the court did not directly address whether terminating Mother's parental relationship would cause A.G. harm, it ultimately concluded that "on balance, permanency is in the best interests of [A.G.], based on his needs, based on the circumstances, based on the challenges that [maternal aunt] would have to face in legal guardianship, that would not be in [A.G.'s] best interest, given the challenges that would be faced."
In sum, the juvenile court expressly found that Mother maintained regular visitation with A.G. for the first element of the parental-benefit exception. For the second element, we agree with Mother that the juvenile court's statements, coupled with its subsequent weighing of the permanency of adoption against the loss of the parental relationship, reveals that the court impliedly found that Mother had a beneficial relationship with A.G. For the third element, the juvenile court impliedly found that terminating Mother's parental rights would not cause detriment to A.G.
2. The Juvenile Court Erred When It Considered the Possibility of Future Contact Between A.G. and Mother
We now turn to Mother's argument that the juvenile court abused its discretion when it considered, in relation to the third element of the parental-benefit exception, the possibility that maternal aunt would continue to permit A.G. to have contact with Mother after adoption.
When analyzing the exception's third element, "the court must decide whether it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.) The juvenile court undertakes a "subtle, case-specific inquiry" focused on the following question: "does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?].'" (Ibid.)
At this stage of the analysis, "[i]t is important to remember that once the legal parent-child relationship is permanently severed by termination of parental rights, a substantial, positive emotional attachment between a child and a parent has no legal protection even if depriving the child of that attachment by disallowing contact would greatly harm the child." (In re C.B. (2010) 190 Cal.App.4th 102, 128 (C.B.), fn. omitted.; accord S.B., supra, 164 Cal.App.4th at p. 300 ["We do not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents."].) Accordingly, "[b]ecause terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.)
In describing its weighing process, the juvenile court recognized that it needed to "balance permanency," "balance what [A.G.] needs for services for his autism," and "balance what [maternal aunt] has to do as a caregiver to make sure that [A.G.] receives all of the services he needs for his autism and for his growth" against any detriment to A.G. from terminating Mother's parental rights. The court ultimately concluded that adoption was the appropriate permanent plan because "on balance, permanency is in the best interests of [A.G.], based on his needs, based on the circumstances," and "based on the challenges that [maternal aunt] would have to face in a legal guardianship, that would not be in [A.G.'s] best interest, given the challenges that would be faced."
The findings suggest the juvenile court reached its conclusion based, at least in part, upon the expectation that maternal aunt would permit A.G. to have continued contact with Mother after adoption. The court stated: "Because [maternal aunt] has decided to focus on the family, with the best interests of [A.G.], and the family's best interest in staying together, while working with the challenge that one of the family members has. And that means [Mother] has a challenge that the families are willing to work with. [¶] However, the relationship between [Mother] and [A.G.] has been fostered by, and fed by, [maternal aunt] . . . And I believe [maternal aunt] will continue to foster that relationship because she believes that it is in the best interests of [A.G.]." The court continued: "But on balance, when you balance terminating the parental rights, and not necessarily terminating the fact that [A.G.] will still see his Mother, still have that relationship, because I know [maternal aunt] is going to make sure it is in place." "[Maternal aunt] loves [Mother]. [Maternal aunt] cares about [Mother]. And [maternal aunt] reaches out to make sure that she considers [Mother's] feelings and making sure that [Mother] is involved. That is what a permanent parent would do."
In In re M.V. (2023) 87 Cal.App.5th 1155, the juvenile court found the parental-benefit exception did not apply and terminated parental rights based on a bonding evaluator's opinion that adoption by the paternal grandparents would keep the minor's relationship with her parents in place because the grandparents were willing to have an open adoption. (Id. at pp. 1173-1174, 1178.) The appellate court reversed, explaining that the evaluator's "preference for adoption over guardianship rested on the legally untenable and factually questionable idea that adoption would leave M.V.'s relationship with her parents unchanged because the grandparents would permit continued contact with the parents. This is entirely the opposite of the legal effect of adoption." (Id. at p. 1181.) The appellate court held that "to the extent the court relied on the expectation of continued contact between M.V. and the parents after adoption, this was an impermissible consideration." (Id. at pp. 1185-1186.)
Similarly, in C.B., the juvenile court determined the minors would not be harmed by terminating parental rights because their aunt and uncle would permit the children to have continued contact with their mother after they were adopted. (C.B., supra, 190 Cal.App.4th at p. 127.) The appellate court held that the "juvenile court injected an improper factor into the weighing process, namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother." (Id. at p. 128.) The appellate court observed that "[t]he purpose of the parent-child relationship exception is to protect the parent-child relationship when its continuation is more beneficial to the dependent child than a permanent plan of adoption and, in such case, a court cannot leave the protection of such a relationship dependent upon the hoped for goodwill of the prospective adoptive parents." (Id. at pp. 128-129.)
Much like M.V. and C.B., the juvenile court in this case "injected an improper factor" into its analysis of the third element. (C.B., supra, 190 Cal.App.4th at p. 128.) The court's repeated references to the expectation that maternal aunt would "continue to foster" the relationship between A.G. and Mother and would "make sure it is in place" as a "permanent parent" appears to have weighed into its decision to terminate Mother's parental rights and order adoption as the permanent plan. However, such consideration is inconsistent with Caden C.'s direction to examine this element from the perspective of "what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.) "Considering a potential future relationship between the parents and the minors, for any reason, is impermissible at a section 366.26 hearing." (Dy.P., supra, 76 Cal.App.5th at p. 169.)
The department argues we should nonetheless affirm the order terminating parental rights because the juvenile court did not base its ruling solely on maternal aunt's testimony that she would maintain contact between A.G. and Mother after adoption. But this reasoning is inapt because, as Caden C. teaches, the juvenile court should not have considered the possibility of future contact at all, regardless of any other evidence that could support the court's decision. (Caden C., supra, 11 Cal.5th at p. 633; J.D., supra, 70 Cal.App.5th at p. 866 ["the juvenile court must assume that if it decides to sever parental rights, then parent and child will be left as not just legal strangers to one another but also literal strangers"].) Indeed, Caden C. is clear in that regard: when analyzing the third element of the parental-benefit exception, the juvenile court "must assume that terminating parental rights terminates the relationship." (Ibid., italics added.) On this particular record, where comments about maternal aunt supporting contact between Mother and A.G. are closely intertwined with the assessment of detriment from the loss of the parental relationship, we cannot be certain that the court complied with this mandate.
We appreciate the "fraught determination" and "carefully calibrated process" confronting the juvenile court at a section 366.26 hearing. (Caden C., supra, 11 Cal.5th at p. 625.) To reach a placement decision, the court "must sift through often complicated facts to weigh competing benefits and dangers for the child" and "must consider practical realities over which it has limited control and envision a child's future under contingent conditions." (Ibid.) It must also unravel "tangled benefits and burdens." (Id. at p. 634.) And it must carry out these tasks while facing parents distraught by the possibility of permanently losing the right to the companionship, care, custody and management of their child, which is "ranked among the most basic of civil rights." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) We recognize the juvenile court's comments in this case go to both A.G.'s best interests and Mother's concerns. But at the same time, the record must be clear that expressions about future contact after adoption were not factored into the analysis of the parental-benefit exception, even when such contact is not necessarily precluded as a practical matter. (J.D., supra, 70 Cal.App.5th at pp. 866-868.) Unfortunately, this record is not sufficiently clear.
The standard articulated in Caden C. compels us to conclude that the juvenile court abused its discretion by considering an improper factor when it assessed the detriment to A.G. from a termination of Mother's parental rights. (In re M.W. (2018) 26 Cal.App.5th 921, 931 [discretionary order based on the application of improper criteria is an abuse of discretion].) Therefore, we reverse the juvenile court's order and direct the court to reconsider whether the evidence establishes that the parental-benefit exception applies without considering the prospect of future contact between A.G. and Mother.We express no opinion on the outcome of that inquiry.
Because we reverse on other grounds, we need not reach Mother's additional contention that the benefits of adoption are no greater than the benefits of maternal aunt becoming A.G.'s legal guardian. We do note, however, that the court's duty at a section 366.26 hearing is "not to compare the pros and cons of adoption and legal guardianship and then choose between them." (M.V., supra, 87 Cal.App.5th at p. 1186.) "Guardianship is not to be considered as a permanent plan unless and until adoption, the statutorily preferred option, is not appropriate." (Ibid.)
III. Disposition
The order terminating parental rights is vacated. On remand, the juvenile court must reconsider, under the proper legal standard, whether the parental-benefit exception applies. (§ 366.26, subd. (c)(1)(B)(i).)
WE CONCUR: GREENWOOD, P.J., DANNER, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.