Opinion
E081637
01-26-2024
In re E.B., a Person Coming Under the Juvenile Court Law. v. E.B., Sr., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel and Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J285893 Lynn M. Poncin, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel and Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant and appellant E.B., Sr. (Father) appeals from a judgment terminating his parental rights to his son, E.B. (Minor) at a Welfare and Institutions Code section 366.26 hearing. Minor was removed from the custody of Father, and Mother (also E.B.), by plaintiff and respondent San Bernardino County Children and Family Services (Department) after his birth due to Mother's drug use, domestic violence between Mother and Father, Mother's untreated schizophrenia and Father's criminal history. Minor was placed in the home of Mr. and Mrs. M. Father regularly visited Minor and participated in his case plan. He regained custody of Minor on a family maintenance plan, but Father used drugs and drug paraphernalia was found within the reach of Minor while Father was caring for him. Minor was removed from Father after only being in his custody for 56 days. Minor was returned to the care of Mr. and Mrs. M. Father's parental rights were terminated at a section 366.26 hearing and the juvenile court chose a permanent plan of adoption.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, Father contends the juvenile court erred by refusing to find an exception to terminate his parental rights due to the existence of a beneficial parent-child relationship pursuant to subdivision (c)(1)(B)(i) of section 366.26.
A. FACTUAL AND PROCEDURAL BACKGROUND
This court ordered that the record from case No. E081637 be incorporated into the record in this case. Further, this court ordered that case No. E079154 be incorporated into the record in case No. E081637. The facts are derived from the records in these three cases.
1. SECTION 300 PETITION
Minor was born in July 2020. Minor was immediately detained by hospital staff based on Mother being under the influence of opioids, and suffering from untreated schizophrenia. Mother wanted to kill herself, tore up her hospital room, and was psychotic. Mother had a history of mental illness, substance abuse, and domestic violence. Mother reported domestic violence between her and Father.
Father advised the Department that he was the biological father of Minor. He also reported that he had a significant criminal history including a rape conviction from 1979 and a burglary conviction for which he was sentenced to a 60-year term but had been paroled. He had to wear a GPS ankle monitor because he was a registered sex offender in California based on the rape conviction.
The section 300 petition alleged against Father that he and Mother engaged in domestic violence, he had a substance abuse problem, he failed to provide a safe and appropriate living environment for Minor, and he was currently a registered sex offender. Minor was detained and, as of the filing of the jurisdiction report on July 29, 2020, had been placed with foster parents, Mr. and Mrs. M.
In the jurisdiction/disposition report, and in an addendum report, the Department recommended that the court dismiss several allegations against Father for insufficient evidence, including the allegation of domestic violence, and that he did not have proper provisions for care of Minor. The social worker continued to recommend no reunification services for Mother, but stated it was in Minor's best interests to allow Father the opportunity to reunify. The Department also reported Father had his own business, a stable residence, and was compliant with his conditions of parole.
The report provided that Father had visited Minor regularly. Father had completed parenting education and domestic violence education and was regularly visiting Minor by video. Father requested in-person visits. Father was no longer allowing Mother to live in his home. Father was on parole in California and in Texas. Father wanted Minor returned to his care.
Father enrolled in additional parenting classes to learn more about parenting and child development. Father also indicated he had been regularly testing for drugs under his parole conditions and had been clean for over 30 years. As for the allegation that he was a registered sex offender, Father informed the social worker that the conviction was over 40 years old and did not involve a minor. He had no residential or visitation restrictions applied to him. The Department recommended that Father be named the presumed father as he was present at Minor's birth and held himself out as Minor's father. The social worker also reported that the results of paternity testing showed a 99.9 percent probability he was the father of the child. The social worker felt Father was an able and willing parent and expressed his desire to raise Minor.
Mr. and Mrs. M. submitted a caregiver report on December 29, 2020. Minor was thriving in their home and had a stable attachment to them. Minor was content when he was being held by Mr. and Mrs. M. Mr. and Mrs. M. submitted a de facto parent request.
Additional information was submitted on January 11, 2021, relating that Father had several in-person visits with Minor. Father had some difficulty handling caregiving responsibilities for Minor at visits, but he was receptive to suggestions and with coaching he improved.
The contested jurisdiction/disposition hearing took place on January 13, 2021. The court dismissed allegations against Father regarding domestic violence and drug use, made true findings on the allegations against the Mother, as well as the allegation that Father was a registered sex offender. The juvenile court declared Minor to be a dependent, found Father to be the presumed father of Minor, removed custody of Minor from both parents, and determined that ICWA did not apply. The juvenile court denied reunification services to Mother but found it would be in Minor's best interests to provide Father with reunification services. The juvenile court also granted the application of Mr. and Mrs. M. for de facto parent status.
The six-month status report recommended that Minor remain in the care of Mr. and Mrs. M. and that Father's reunification services be continued. Mr. M. was critical of Father's visits with Minor. Father was participating and benefitting from services, despite the Department's belief that Mr. M. may be attempting to hinder reunification. Father continued to have a positive attitude and completed individual counseling, in addition to the extra parenting and anger management education that had been added to his plan. Father requested additional visitation with Minor. The Department was not recommending that Minor be returned to Father's care at the hearing as additional therapy was required of Father to address his criminal history. Another person observed visits between Father and Minor and they seemed appropriate. Father was very attentive to Minor and he was doing a good job of caring for Minor. At the review hearing, the juvenile court continued services and ordered additional visitation.
In the 12-month review report, the Department recommended continued reunification services for Father while he completed his therapy. Father had been consistent in his visitation and visits were going well. Several of the visits were observed and Father was doing an excellent job caring for Minor. The juvenile court approved unsupervised and overnight visits for Father if approved by the Department and continued reunification services. Mr. and Mrs. M. provided information on Minor. He was affectionate with them and called them "mama" and "dada." They reported that Minor did not willingly go with Father during visits. After the visits, Mr. and Mrs. M. reported that Minor would be irritable and cried easily. Mr. and Mrs. M. reported that Minor was very bonded to them.
The 18-month review report filed on December 22, 2021, recommended continued reunification services. The Department stated that Father was seeking to have Minor placed with a paternal aunt (Aunt) who lived in Colorado if he could not reunify with Minor, but she had yet to be evaluated. Father had been visiting with Minor three times each week and the visits were going well. Father brought toys, snacks, bottles, diapers, and wipes to the visits. Father indicated that Minor knew he was his father and that he called him "dada." The social worker noted that Mr. and Mrs. M. may have consciously or subconsciously been sabotaging Father's efforts to reunify as they wanted to adopt Minor. It was further reported that Mr. and Mrs. M. sent pork products with Minor to visits, despite being aware Father was Muslim. The social worker even recommended a different foster home for Minor to facilitate reunification. The social worker recommended six additional months of reunification services but also recommended unsupervised and overnight visitation for Father and eventual return home on a family maintenance plan.
At the initial 18-month review hearing, the court adopted the recommendations of the social worker regarding visitation, ordering unsupervised visits a minimum of one time each week, with authorization to increase the frequency and duration of visits, to include overnights and weekends. The matter was continued.
The Department sent notice to Mr. and Mrs. M. that Minor would be removed from their care on February 5, 2022, based on an altercation involving Father and Mr. M. during visitation. A security guard had to intervene and it was reported that Mr. M. was the aggressor in the incident. In order to facilitate reunification, removal of Minor was recommended by the Department. Mr. and Mrs. M. objected to the removal.
In a February 22, 2022, additional information to the court, the social worker relayed that after the first overnight visits, Mr. and Mrs. M. took Minor to the emergency room and made an abuse report because the child had a runny nose. The forensic examination revealed no evidence of abuse or neglect. During the examination, Minor clung to Father.
On February 10, 2022, the social worker submitted a first addendum report recommending that Minor be returned to Father under a family maintenance plan. Father's home had been evaluated and was more than adequate for placement of Minor. The social worker noted that Minor appeared to know father was his parent, calling him dada, and was developing a strong bond with Father. At the end of one visit, Minor did not want to let go of Father. Father had unsupervised visits. The report also provided there was an additional incident involving Mrs. M. and Father. Father complained that Mrs. M. had grabbed Minor off his lap and he felt disrespected. On February 24, 2022, the court ordered Minor returned to Father under a family maintenance plan. Minor remained in Father's care for 56 days.
2. SECTIONS 342 AND 387 PETITIONS
According to the section 342 and section 387 petitions, Minor had to be detained on April 7, 2022. It was reported by the Department that Father was under the influence while caring for Minor and left drug paraphernalia (crack pipes and two empty baggies) within the reach of Minor placing Minor at substantial risk of serious physical harm. Father admitted to using the drugs. Father reported that he used because he was "overwhelmed" caring for Minor. Father stated that even though family and friends had advised him they would help him, they had not been there for him. The petitions alleged that Father's substance abuse put Minor at substantial risk of harm.
A visit between Minor and Father was attempted on April 15, 2022. It had to be ended early based on Father's incoherent and inappropriate comments. Father had been incarcerated due to an infraction of his parole by traveling more than 50 miles from his home. He also refused entry to his home to parole agents who tried to replace the battery on his GPS monitor. Minor had been placed in temporary foster care and the Department did not recommend returning Minor back to the care of Mr. and Mrs. M.
The jurisdiction/disposition hearing on the combined section 342 and section 387 petitions commenced on May 17, 2022, spanning three days, with testimony from Father, two social workers, and Mr. and Mrs. M. After considering the evidence, the juvenile court found the allegations of both the subsequent and the supplemental petition to be true. On June 7, 2022, the court resumed with the disposition hearing, finding that the previous disposition had been ineffective in the protection of Minor, removed custody of Minor from Father, and ordered placement with Mr. and Mrs. M. The court then terminated services to Father and set a hearing pursuant to section 366.26 to select and implement a permanent plan of adoption. Father requested that the Department place Minor in the home of Aunt, and to consider her for permanent placement.
The section 366.26 report filed on October 3, 2022, stated that as of July 5, 2022, Father was living in an apartment in Texas. It was reported that Minor was meeting all of his development milestones in the care of Mr. and Mrs. M.; he was a happy toddler. Mr. and Mrs. M. stated that Minor had been exploring more and had reduced aggression since returning to their care on June 8, 2022. The Department reported as to visits between Father and Minor, they "go well." They stated that termination of parental rights would not be detrimental to Minor. The social worker requested additional time to complete an assessment of the Aunt pursuant to the Interstate Compact for the Placement of Children (ICPC).
A caregiver assessment was filed by Mr. and Mrs. M. When Minor was returned to their care in June 2022, he transitioned back to their care quickly-sleeping, eating, and interacting with them. He had some difficulty with the siblings in the house. He was aggressive at first but had since adjusted. Minor initially wanted to be held constantly by Mr. and Mrs. M. but had transitioned to wanting to walk on his own. Minor was very active.
On February 17, 2023, the Department filed a notice of special hearing regarding the pending ICPC application, requesting to place Minor with the Aunt. An addendum report was filed on March 21, 2023. Minor had an overnight visit with Aunt. The next morning, Minor wanted to stay with Aunt. The Department recommended placement with Aunt.
A hearing was held at which Aunt testified. After hearing testimony, the juvenile court noted that it would be an "emotional disaster" to remove Minor from the care of Mr. and Mrs. M. and place him in the care of Aunt. The juvenile court denied the request for Minor to be placed with Aunt and kept Minor in the custody of Mr. and Mrs. M. The trial court also granted the request by Mr. and Mrs. M. to be named the prospective adoptive parents.
Another hearing was held on May 18, 2023. Minor's counsel complained that the Department was still recommending that Minor be placed with Aunt despite the juvenile court denying placement with Aunt. The juvenile court noted no expert was called by the Department during the prior hearing to "opine that keeping the child in the home of Mr. and Mrs. M. would be detrimental to the child's long-term physical or emotional well-being." Further, no expert testified that it would "be in the child's best interest to remove him from Mr. and Mrs. M.'s custody after spending 30 months in their care" and placing him in the care of Aunt. Father had been visiting by video one time each week with Minor for between 15 and 40 minutes. Father's visits were reduced to two times each month via video for a minimum of 15 to 30 minutes. A contested section 366.26 hearing was scheduled. The juvenile court also summarily denied a section 388 petition filed by Aunt seeking placement of Minor.
Aunt appealed from the denial of the modification petition, as well as from the order denying overnight, weekend, or out-of-state visitation. As previously noted, these appeals are still pending in this court. (In re E.B.; San Bernardino Child and Family Services v. K.C., case No. E081080 .) Father also appealed from the order denying the petition for modification relating to the relative placement. (In re E.B./San Bernardino CFS v. E.B., Sr., case No. E081096)
In its section 366.26 addendum report filed on June 14, 2023, the Department recommended termination of Father's parental rights and that adoption be the permanent plan. Minor remained with Mr. and Mrs. M. Father was still living in Texas. Minor had been placed with Mr. and Mrs. M. for three years, since he was six days old. The Department reported that Minor looked to Mr. and Mrs. M. for "nurturance, comfort and reassurance." Minor referred to them as "daddy" and "momma." He continued to grow a bond with Mr. and Mrs. M.; they were committed to providing for Minor.
At the section 366.26 hearing, Father testified. Father was present at Minor's birth, but Minor was immediately detained. Father visited with Minor at least every week for a majority of the dependency. Father had custody of Minor for 56 days, and Minor had spent entire weekends with him. Father fed, bathed, and took care of Minor on his own when he was with him. Father loved Minor and he believed that Minor loved him. He had video visits with Minor two times each month. Father admitted that Minor used to call him dada but no longer called him dada. Father told Minor he loved him and Minor responded that he loved him too. Minor had told Father that he missed him. At the end of the video visits, Father told him to give "Daddy a hug." Minor would come to the phone and put his head on the phone. He would blow Father a kiss. Father was opposed to him being adopted and was requesting legal guardianship with a family member.
Father felt there was a bond based on when he had Minor in his custody, Minor would only let Father pick him up and would only accept food from Father. If Father had custody, the bond would grow stronger. Father insisted he was a changed person. Minor's counsel argued that the bond with Father was outweighed by the bond with Mr. and Mrs. M. Minor had been in their home a majority of his life and it was a great source of stability for Minor.
The juvenile court rejected that the parental-child bond exception applied. The court found Father had met his burden of proof as to the first element set forth under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), finding that there had been regular visitation and contact. The trial court noted that at the 18-month review hearing, Minor was returned to the custody of Father. However, Minor was returned to Mr. and Mrs. M. At that point, visits between Minor and Father were only by video. Father acknowledged that Minor no longer called him dada. The trial court noted that Minor had spent a majority of his life outside of Father's custody and there was a bond between Minor and Mr. and Mrs. M. Minor's bond continued to grow with Mr. and Mrs. M., whom Minor called mama and dada. There was no evidence of emotional distress at the end of visits with Father. Father's parental rights were terminated and Minor was freed for adoption.
Discussion
Father's sole argument on appeal is that the juvenile court erred in terminating his parental rights because he established that severance of the familial relationship would be detrimental due to a beneficial parent-child relationship, as described in section 366.26, subdivision (c)(1)(B)(i). Substantial evidence supported the juvenile court's order finding that a beneficial child-parent relationship did not exist between Father and Minor at the time of the section 366.26 hearing, and the juvenile court did not abuse its discretion by finding that termination of parental rights would not be detrimental to Minor.
" 'At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.' [Citation.] 'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).'" (In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225.) In order to prove that the parental bond exception applies, a parent must show (1) consistent visitation; (2) a beneficial relationship; and (3) detriment to the child in losing that relationship. (Caden C., supra, 11 Cal.5th at p. 635.)
"A parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the exception." (Caden C., supra, 11 Cal.5th at p. 637.) However, "Issues such as those that led to dependency often prove relevant to the application of the exception.... A parent's struggles may mean that interaction between parent and child at least sometimes has a' "negative" effect' on the child." (Ibid.)
"A substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child 'consistently,' taking into account 'the extent permitted by the court's orders' [citation] is essentially a factual determination. It's likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it." (Caden C., supra, 11 Cal.5th at pp. 639-640.) "[T]he ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Id. at p. 640.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.)
There is substantial evidence that Father was consistent with visitation to meet the first prong of Caden C. "As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' [Citation.] Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Caden C., supra, 11 Cal.5th at p. 632.) "[C]onsideration of the beneficial relationship exception is a 'fraught determination' that requires the juvenile court to 'sift through often complicated facts to weigh competing benefits and dangers for the child[,] . . . consider practical realities over which it has limited control and envision a child's future under contingent conditions." (In re J.D. (2021) 70 Cal.App.5th 833, 869.)
Minor had been out of Father's custody for almost his entire life, excepting 56 days. Minor had been in the home of Mr. and Mrs. M. for the majority of the dependency period. While Father had custody of Minor for 56 days, by the time of the section 366.26 hearing, Minor had been back with Mr. and Mrs. M. for over one year with only video visits twice each month with Father. At the section 366.26 hearing, Father was the only person to provide evidence of the positive interactions between him and Minor since the section 387 and section 342 petitions had been filed. The Department had reported only that the visits went "well" since Minor had been removed from Father's custody. While initially there had been a growing bond between Father and Minor, that bond began to erode once video visits occurred.
These video visits were required based on Father's own actions in violating his parole and having to return to Texas. Moreover, although the Department attempted to continue in-person visits after the section 387 and section 342 petitions were filed, the visits had to be stopped due to Father's inappropriate and incoherent behavior. While Minor may have blown kisses to Father when he ended the video visits, there was no evidence that Minor cried or refused to end the visits. There were no bonding studies or expert observations of the relationship between Father and Minor after Minor was removed from Father's care.
In Caden C., psychologists had observed the child and parent and were able to provide the "psychological importance of the relationship for the child." (Caden C., supra, 11 Cal.5th at pp. 632-633.) In addition, a bonding study was performed that helped to evaluate the bond between the child and the mother. (Id. at pp. 633-635, fn. omitted.) Bonding studies or psychological evaluations are not necessary to find that a parent has met his or her burden of establishing whether a child would benefit from continuing the relationship with the parent. However, in this case, there were only a few observations provided by the Department as to the video visits between Father and Minor for the year after the section 342 and section 387 petitions were filed. There was no expert evaluation or bonding study to assist the juvenile court in making its determination as to the bond between Father and Minor. By the time of the section 366.26 hearing, the only evidence of a bond between Father and Minor was Father's own testimony and even Father admitted that the bond had lessened as evidenced by Minor no longer calling him dada. The juvenile court did not err by concluding that Father had not carried his burden of proof on the second prong in Caden C.
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-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.) "[C]ourts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Id. at p. 634.) "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (Ibid.) Rather, "The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home." (Id. at p. 640.) As stated, "[W]hether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Ibid.)
The juvenile court had been involved in the case over the three years of the dependency. The juvenile court was aware of the standard in Caden C. and carefully evaluated this third factor in reaching its decision. The bond between Minor and Mr. and Mrs. M. continued to grow, and Minor called them mama and dada. Mr. and Mrs. M. had provided a stable home for Minor throughout the dependency. At the same time, Minor relied less on Father, choosing to no longer call him dada. The juvenile court had previously noted when denying placement with Aunt that there was no evidence of detriment to Minor should he remain in the care of Mr. and Mrs. M.
Further, when Minor was placed back into Father's care, Father admitted his family was not there for him to help him and that he was "overwhelmed." Father put Minor at substantial risk by exposing him to drugs and drug paraphernalia. "A parent's struggles may mean that interaction between parent and child at least sometimes has a' "negative" effect' on the child." (Caden C., supra, 11 Cal.5th at p. 637.) Father's actions led to video visits in place of in-person visits, which impacted their relationship.
The juvenile court properly focused on the evidence supporting a bonded relationship between Father and Minor, and whether severing the relationship would be detrimental to Minor. Minor had been in the stable home of Mr. and Mrs. M. for almost the entirety of the dependency. While there may have been evidence of friction between Father and Mr. and Mrs. M., the evidence supported that Minor was a "happy toddler" and was happy in the stable home provided by Mr. and Mrs. M. The juvenile court properly determined that terminating the relationship between Father and Minor would not be detrimental "when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.) The trial court did not abuse its discretion in terminating Father's parental rights at the section 366.26 hearing.
Disposition
The order terminating parental rights is affirmed.
I concur: MENETREZ, J.
RAMIREZ, P. J., Dissenting.
I respectfully disagree. In my opinion, the three necessary prongs to establish a beneficial parent-child relationship under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), were met because (i) the parent maintained regular visitation and contact with the child, (ii) the child has, and would benefit from continuing, a substantial, positive, emotional attachment to the parent, and (iii) termination of that relationship would be detrimental to the child even when balanced against the benefits of an adoptive home. (Welf. &Inst. Code, § 366.26, subd. (c)(1)(B)(i) ; Caden C., supra, at pp. 636-637.)
All further statutory refences are to the Welfare and Institutions Code unless otherwise indicated.
No one disputes that father met the first prong; the dispute pertains to the second and third prongs. The second prong assesses whether "'the child would benefit from continuing the relationship.'" In my view, father met the second prong, where the focus is on the child. (Caden C., supra, 11 Cal.5th at p. 632.) In considering the second prong, the court should consider that the relationship may be shaped by "a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs."' (Ibid., citing In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
A court should also consider the hurdles faced by the parent of an infant in just establishing a relationship. Here, even after the child was removed from father in the supplemental petition proceedings, the child interacted with warm affection toward the father, as evidenced by his actions during video calls, despite the limited time in which the child was in father's custody, and the hostility of the foster/de facto parents, whose primary goal from the inception of the dependency was to adopt the child for themselves. In my view, the second prong was met.
As to the third prong, it is my view that father established that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. While the determination of the first two prongs rests primarily on a variety of factual determinations properly reviewed for substantial evidence, "the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Caden C., supra, 11 Cal.5th at p. 630.)
In proving the existence of a beneficial relationship, including the third prong, father was not required to prove that E.B.'s attachment to him was his primary bond. (In re S.B. (2008) 164 Cal.App.4th 289, 300.) "A child's emotional attachments are not a zero-sum game." (In re J.D. (2021) 70 Cal.App.5th 833, 859.) "We do not believe it is reasonable to require the parent of a child removed from parental custody to prove the child has a 'primary attachment' to the parent." (In re S.B., supra, at p. 299.)
For this reason, "the exception can apply even when a child has bonded to an alternative caretaker." (In re J.D., supra, 70 Cal.App.5th at p. 859, citing In re Scott B. (2010) 188 Cal.App.4th 452, 473 [reversing order terminating parental rights, and noting minor "clearly needs both of his mothers-his biological mother and his foster mother"]; In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [reversing order terminating parental rights even though nearly five-year-old child was attached to grandfather who wanted to adopt him].)
Nor is it a question of "comparing the parent's attributes as a custodial caregiver relative to those of any potential adoptive parent(s)," because "[n]othing that happens at the section 366.26 hearing allows the child to return to live with the parent." (Caden C., supra, 11 Cal.5th at p. 634.) Father was not the primary caretaker for most of the dependency, the child having been removed shortly after birth, so the quality of the child's attachment to him must be evaluated in the context of the relationship he was permitted to develop with E.B. during the course of the dependency proceeding. (See In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) The relative strength of the parent-child relationship in this case must be viewed through the lens of the amount of contact he was permitted to have and considered in light of the challenges created by the foster parents.
Further, it bears noting that the termination of parental rights does not merely sever the parent-child relationship, it severs the child off from his entire biological family, which, in this case is large and comprises relatives who were genuinely interested in E.B.'s welfare, and with whom E.B. enjoyed visits. The record shows the child greatly enjoyed visiting his aunt and cousins, to the point where he did not want to return to the foster parents' home after a visit. At the hearing on the selection and implementation of the permanent plan, father asked the court to order a guardianship and to keep the child in the family, or that if adoption was to be ordered, that the court designate a family member as the adoptive parent. The court, in its broad discretion, should have considered either establishing a guardianship or designating a relative as the adoptive parent.
Considering the history of this case, discretion was abused. The foster parents were so anxious to adopt that they applied for de facto parent status even before the jurisdictional/dispositional hearing. They expressed disappointment when the court granted father reunification services, expecting the court to order a by-pass of services and proceed with permanency planning. They also attempted to sabotage father's reunification. They considered facilitating visits between the child and his father as well as his relatives to be a major inconvenience and created scenes at father's visits with his child. The court also should have considered that the aunt had completed all the necessary and time-consuming prerequisites to have E.B. placed with her, which was the recommended and court-approved permanency plan.
Even after the supplemental petition was filed and reunification was no longer on the table, father's video visits were consistent, and the child expressed a continued emotional bond with his father. Moreover, after the child's first overnight visit with the paternal aunt, the child did not want to return to the foster/de factor parents' home. Indeed, the child had difficulty re-adjusting to the foster parents' home following his removal from his father after the very short period of reunification, despite having lived the majority of his life with them. This was not a situation in which the father was merely a "friendly visitor."
In Caden C., the court noted that a determination that a beneficial parent-child relationship exists does not mean the child will be placed with the parent, only that the relationship of parent and child should not be permanently severed. "Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent." (Caden C., supra, 11 Cal.5th at p. 634, and cases cited.)
At a section 366.26 hearing, the trial court is required to determine if 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., supra, 27 Cal.App.4th at p. 575.) "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)." (Caden C., supra, 11 Cal.5th at p. 634.) Accordingly, in assessing the parent-child relationship, "courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Ibid.)
In the present case, the foster/de facto parents intended to adopt from the time of the initial placement, insofar as they had been informed that the case would be transferred to adoption; they expressed disappointment that the trial court had offered family reunification services to the father of E.B. To fulfill their desire to adopt, they attempted to sabotage father's reunification efforts and complained about his visits. They went so far as to make a false allegation of abuse against father immediately after the child's first overnight visit with father. During the examination, the child clung to his father. The improper conduct of the state-licensed foster parents was so troubling to the social worker, who recommended against placing the child back in their home after father's relapse resulted in the removal of the child from his custody, that CFS opposed the foster parents' request for placement after the supplemental petition was adjudicated and father's services were terminated.
In the meantime, the paternal aunt had requested placement and had jumped through all the hoops required to receive approval under the Interstate Compact for Placement of Children (ICPC) and had established a relationship with the child. Incredibly, after a visit with the paternal aunt, the child did not want to return to the home of the foster parents, with whom he had lived with for most of his life. The aunt made a formal request for placement under section 361.3, and the social worker recommended the placement, but the foster/de facto parents objected. The court, in the first of its errors in my opinion, denied the relative placement, and placed E.B. with the foster parents. The paternal aunt appealed, and in its brief, CFS agreed that the trial court erred in denying the aunt's request for placement. If that appeal had been a fast track appeal, we probably would not be where we are today.
Nevertheless, even after the removal of E.B. from his father and the re-placement with the foster/de facto parents, the child continued video visits with father and would tell father he loved him, put his head against the phone as if to hug the video at the end of the visits, and blew kisses, expressing continued affection for his father.
Thus, father established and maintained, against great odds, a warm and loving bond with his child that continued after the child was removed from his custody. Considering the behavior of the foster/de facto parents, the child should never have been returned to their custody upon the determination of the supplemental petition, and the social worker's earlier recommendations (prior to the child's return to his father) to place the child with a relative and remove him from the foster/de facto parents, should have been followed.
In my opinion, the court in this case abused its discretion when it concluded that termination of parental rights would not be harmful where, as the social worker informed the court early on, the foster/de facto parents put their own desire to adopt above the child's interests.
For these reasons, I would reverse the judgment.