Opinion
A161027 A162201
01-26-2022
In re JOSHUA T., a Person Coming Under the Juvenile Court Law. v. E.T., Defendant and Appellant. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. No. JD18-3161).
STREETER, J.
These consolidated appeals by E.T. (Father) were filed before and just after termination of his parental rights to Joshua T., his now seven-year-old son. Father was incarcerated from before Joshua's birth in 2015 until February 2020, when Joshua was five years old and had been subject to a dependency petition for a year and a half. Father contends the juvenile court erred when, six months later, it denied his request for a bonding study and denied his request for reunification services with Joshua. He contends it erred again in March 2021 by refusing to place Joshua into his care and ruling that the parent-child beneficial relationship exception to termination of parental rights did not apply. We conclude there was no reversible error and affirm.
I. BACKGROUND
We assume familiarity with the factual background of this case up to the point of the 18-month review, as recounted in a previous nonpublished panel opinion, B.W. v. Superior Court (Sept. 28, 2020, A160436). We will review the early history of the case only briefly to set the context.
Joshua T., then age three, was taken into protective custody in July 2018 after his mother carried him on her shoulders into the San Francisco Bay and then dropped him, fully clothed, into about three feet of cold water where he could have drowned. She walked away and left him there to make his way to shore by himself. Onlookers called 911. The police arrived, found Joshua shivering and crying on the shore, and took him to the hospital. From there he was taken into protective custody by the San Francisco Human Services Agency (Agency).
He was detained by the court (Judge Susan M. Breall) and later declared a dependent child under Welfare and Institutions Code section 300, subdivision (b). He was placed into foster care with a longtime family friend who was not interested in adoption. The only allegation against Father was that, because he was incarcerated, he was unable to and failed to protect Joshua from the mother.
Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.
Joshua's mother was found to have serious mental health issues and was institutionalized for part of the dependency period. The incident at the beach was not the only time Joshua's mother had abused him. In recollections shared with two caregivers and a therapist, Joshua said that his mother on multiple occasions had tied him up with a jump rope, put tape over his mouth, wrapped him in blankets, and locked him in a closet.
Although his mother was granted reunification services, she did not reunify with Joshua within the time allowed by statute. Her reunification services were terminated at the 18-month review in June 2020 and a hearing was set under section 366.26. Mother's visitation was also terminated because it had a negative effect on Joshua, and he requested no further visits.
Father had been incarcerated for robbery since before Joshua's birth and remained incarcerated, with no scheduled release date, when Joshua was declared a dependent child. In September 2018, at the disposition hearing, Father waived his right to reunification services.
Despite his incarceration, Father maintained steady contact with Joshua through supervised visitation, first informally in jail with his extended family through the One Family Visitation Program, and later, on a biweekly, weekly or more frequent basis, by Agency discretion or court order within the dependency. By all accounts, visitation proceeded smoothly through most of the dependency; Father was appropriate, nurturing and affectionate. The social worker's report for the 18-month review, however, noted that Joshua had "extreme tantrums" while visiting with Father, and Father was unable to calm him, even with the support of the visit supervisor.
Father was released from custody in February 2020. After that, he was supposed to continue having weekly supervised visits with Joshua, but the COVID-19 pandemic soon made in-person visits impossible. Father began having video visits and phone calls with Joshua, supervised by the substitute care provider. As of March 5, 2021, Father was ordered to have visits with Joshua supervised by a clinical therapist.
Joshua's substitute care provider since May 2019 has been Natalie G., Father's first cousin. Father also named Natalie G. as a member of his own support network. Natalie G. has an adopted son Joshua's age and a step- grandson for whom she acts as guardian. Natalie was given educational rights over Joshua in June 2019, and she was recognized as Joshua's de facto parent in February 2020. Natalie G. has expressed her intention to adopt Joshua if reunification fails.
In late 2019 it was reported that Joshua pulled down his pants and underwear while in preschool, exposing himself in front of the class, and he had also exposed himself to Natalie's adopted son. He said his mother had given him to a strange man with no hair who took him to a movie theater where they saw a movie called "Far 100." It was apparently from the movie that he got the idea. He also bit Natalie G.'s adopted son, asked the boy to hurt him, and if the boy did not hurt him, Joshua would hurt himself by biting himself, poking himself in the eye, or scratching himself. Joshua experienced night terrors, sometimes cried in his sleep or wet the bed, and sometimes engaged in self-harm, especially after visits with his mother. The social worker's reports document that he was diagnosed with posttraumatic stress disorder (PTSD). In December 2019, a leading infant mental health professional opined:" 'Joshua's symptoms are indicative of Complex PTSD, which untreated can result in psychosis.'" This expert thought it was critical for Joshua's mental health to keep him placed with Natalie G., where he was bonded and felt safe.
On June 26, 2020, the court terminated reunification services to Joshua's mother and set a hearing under section 366.26. On June 30, 2020, approximately four months after his release from jail, Father petitioned under section 388 for a change in the September 26, 2018 order denying him reunification services because of his waiver. In addition, Father filed a writ petition in this court, claiming his attorney had performed incompetently in September 2018 "by misstating the consequences of his waiver of services, leaving him with 'the mistaken belief that he could waive his reunification services [at] disposition and then seek them again at a later date when he was released from jail.'" (B.W. v. Superior Court, supra, A160436.)
In his section 388 petition, Father argued that circumstances had changed in that he had been released from jail. He had taken parenting classes and visited regularly with Joshua while in jail. Since his release he had engaged in multiple services voluntarily and continued regular visitation with Joshua. Father requested six months of reunification services and argued such services would be in Joshua's best interest because, as father and son, they had established a close relationship and bond; Joshua knew Father to be his dad and sometimes asked to see him or asked to prolong a visit. Joshua said he loved Father and gave him hugs and kisses, and the social worker testified they had a "loving relationship." In support of his modification petition, Father attached a declaration describing his significant progress since release from jail in establishing a law-abiding and sober life and maintaining visitation with Joshua.
On July 21, 2020, before the court had ruled on the section 388 petition, Father filed a motion in juvenile court to appoint Dr. Hugh Molesworth as an expert witness to conduct a bonding study with Joshua, citing Evidence Code section 730. That section allows the court to appoint an expert on a party's motion or its own motion if such expert evidence "is or may be required by the court or by any party to the action." (Evid. Code, § 730.) Both Joshua's counsel and the Agency opposed Father's request for a bonding study and his request for reunification services largely on grounds that Joshua had already been in foster care longer than the Legislature intended, he was well-bonded to Natalie G., and prolonging the uncertainty in his life so that Father could have a separate period of reunification-not provided in the law-was not in
Joshua's best interests. They argued that Natalie G. and Joshua had formed a close bond, and Joshua had said repeatedly he wanted to continue living with Natalie. He felt safe telling her about the abuse he had suffered in his mother's care and trusted her enough to tell her about anything that might happen in the future. Joshua's and the Agency's counsel also argued the court did not need a bonding study to decide the beneficial parental relationship exception issue.
On August 18, 2020, Judge Breall heard argument and denied both the request for a bonding study and the section 388 petition, without an evidentiary hearing. Father then filed his appeal in A161027, alleging error in those rulings.
After the August 18 rulings, Father became discouraged and angry and briefly discontinued visitation with Joshua, feeling it was a waste of time if his son was not going to be returned to him. He disappeared from Joshua's life for about a month in September 2020, which was detrimental to Joshua.
This court denied Father writ relief on his ineffective assistance of counsel claim in late September 2020. In mid-October, Father filed a second section 388 petition in the trial court seeking Joshua's placement into his care, with family maintenance services. The changed circumstances were alleged to be Father's release from custody, being employed, participating in services, and having access to unsupervised visits at the social workers' discretion. Father claimed he had completely eliminated the sole circumstance alleged against him in the dependency petition, namely his incarceration, and he wanted his son back.
Emphasizing that the focus must be on the child's best interests at such a late stage in the proceedings, the Agency and Joshua both opposed the second section 388 petition based on Father's inexperience in caring for Joshua, his delay in acting to secure services or custody, his lack of understanding of the child's mental health needs, the long time Joshua had spent in foster care, his need for permanence, and his strong bond with Natalie G. The court ultimately set a hearing, combined with the 366.26 hearing, on March 2, 2021.
Meanwhile, around September 2020, Natalie G. became somewhat ambivalent about adopting Joshua when he began engaging in sexualized behaviors with her adopted son. Joshua asked Natalie's son to play" 'boyfriend and girlfriend, '" which he explained meant you put your lips together with the other person and stick your tongues into each other's mouths. The adopted son said Joshua then tried to put his penis into Natalie's son's mouth, but the boy turned his head away. Joshua then put his bottom in the other boy's face. At least one other similar incident was described by Natalie G.
When asked by Natalie where he had learned these behaviors, Joshua said he had learned them from his mother. He said his mother had put her mouth on his "wee" and then put her butt in his face. He later changed his story and said he learned the behavior from his paternal grandfather, with whom he had regular visits supervised by Natalie. Later still, he implausibly said it was Father who had engaged in inappropriate sexual contact with him. That would have been practically impossible, however, since Father had never had unsupervised visits with Joshua. Eventually, Joshua changed his story yet again and said it was his former substitute care provider, Michelle W., who had interacted sexually with him.
In mid-December 2020, the Agency requested, and the court ordered, a multidisciplinary interview (MDI) for Joshua to address his allegations of sexual abuse. Once conducted, however, the MDI was inconclusive and the MDI team was rendered inactive. During the MDI, Joshua did not accuse anyone close to him of sexual impropriety.
Thus, the orders challenged in this case were necessarily made without clarity on where Joshua had learned the sexualized behaviors. The most we can glean from the record is that the behaviors were decreasing through a safety plan implemented by Natalie in cooperation with the Agency. Natalie did not allow the boys to play together unsupervised. By the time of the 366.26 hearing, Natalie had reaffirmed her dedication to adopting Joshua.
At the combined hearing on Father's second section 388 petition and the Agency's petition under section 366.26, the court readily found changed circumstances under section 388, but put Father to his proof on best interests of the child. After hearing testimony from the social worker and from Father, the court denied Father's second section 388 petition before addressing the issues in the 366.26 hearing.
The judge found it would not be in Joshua's best interests to be returned to Father's care. Joshua had never been in Father's custody, he was strongly bonded to Natalie G., and he had significant mental health issues, which Father failed to recognize or acknowledge. Judge Breall concluded that granting the petition would "not be in the best interest of this child who is still healing."
Father also argued in a trial brief and in oral argument that he was entitled to application of the parent-child beneficial relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). The Agency's and Joshua's attorneys opposed that argument.
The court ultimately rejected Father's argument for application of the parent-child beneficial relationship exception and terminated parental rights of both parents. It found Joshua generally and specifically adoptable and identified Natalie G. as the prospective adoptive parent.
Father appealed again in A162201, alleging the court abused its discretion when it denied his second section 388 petition, and when it ruled he was not entitled to the parent-child beneficial relationship exception. The two appeals were consolidated on Father's motion.
II. DISCUSSION
A. Denial of a Bonding Study
Father claims he was entitled to relief under section 388 because he had been released from jail and had become available to form a closer relationship with Joshua. As the boy's presumed father, he alleged in the trial court and repeats before this court that he had developed a bonded relationship with Joshua through visitation while he was incarcerated and thereafter. He claimed a bonding study would have helped him prove the parent-child beneficial relationship at the 366.26 hearing as well as regain custody and avoid termination of his parental rights.
On August 18, 2020, the juvenile court heard argument on Father's motion for a bonding study and his petition for reunification services. Father's attorney argued that, even though he was incarcerated for much of the dependency case, Father still regularly and consistently visited with his son. Upon his release, he engaged in services voluntarily, was employed, and continued visitation with Joshua as much as possible in light of the pandemic. Joshua's attorney disagreed that a bonding study was warranted or necessary, as did the Agency.
The court found there were no "compelling circumstances" to order a bonding study. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197 (Richard C.).) Judge Breall concluded she did not need a bonding study to decide whether there was a beneficial relationship and whether that relationship outweighed the promise of permanency through adoption-both of which were judicial decisions and not expert decisions.
We review the rejection of a request for a bonding study for abuse of discretion. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321; Richard C., supra, 68 Cal.App.4th at p. 1197.) On appeal, Father contends the bonding study would have helped the juvenile court reach its decisions on three separate issues: (1) whether the parent-child relationship exception to adoption applied; (2) whether it was in Joshua's best interest to return to Father's custody; and (3) whether Joshua viewed Father as a safe parent (so that limiting Father to therapeutic visitation would not have been necessary).
On the first issue, Father relies upon Evidence Code section 730, which allows the court, in its discretion, to appoint an expert whenever expert evidence "is or may be required by the court or by any party to the action." (Italics added.) No doubt a bonding study can in some cases help the court to determine the existence and nature of a parental relationship. (See, e.g., In re S.R. (2009) 173 Cal.App.4th 864, 869 [social service agency's inability to locate Spanish-speaking expert did not eliminate the need for a previously ordered bonding study].) Indeed, our Supreme Court has recently stated that "[t]rial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony" to assist in evaluating the applicability of the parent-child beneficial relationship exception. (In re Caden C. (2021) 11 Cal.5th 614, 633 & fn. 4 (Caden C.).)
Still, there is "no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 [parent's failure to request bonding study forfeited the issue on appeal]; accord, In re S.R., supra, 173 Cal.App.4th at p. 871 ["a bonding study is not statutorily mandated in a dependency proceeding"].) And the timing of the request is crucial. "While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Richard C., supra, 68 Cal.App.4th at p. 1197, italics added.) By the time of the section 366.26 hearing, a parent's "right to develop further evidence regarding [his or] her bond with the child[] [is] approaching the vanishing point." (Richard C., at p. 1195.) Moreover, when "it is unlikely that a bonding study would have been useful to the juvenile court," the court does not err in declining to appoint an expert. (Lorenzo C., at p. 1341.)
A bonding study was not "required" in this case (Evid. Code, § 730) because the nature of the father-son bond was fully developed in the Agency's periodic reports to the court. Although Father claims these reports contained "scant" information about the nature of his relationship with Joshua, we disagree with that characterization. The reports described in detail the interactions between Father and Joshua during supervised visitation and evaluated them positively. The only contact Father ever had with Joshua was through supervised visitation. And to the extent expertise might be considered useful to the court, other expert opinions were available in the reports themselves in the form of Joshua's therapists' views and those of other mental health and social work experts. (See In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084 [information regarding bonding and reunification was available in social study reports].)
"[T]he 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. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Caden C, supra, 11 Cal.5th at pp. 636-637.)
The first two of these three elements are essentially factual. Father managed to persuade the court that he had established consistent visitation and that Joshua had a positive emotional attachment to him, though it was disputed how substantial that relationship was.
"The third element-whether termination of parental rights would be detrimental to the child-is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child's relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence." (Caden C, supra, 11 Cal.5th at p. 640.)
"Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that's inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child's life would be like in an adoptive home without the parent in his life. [Citation.] The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 640.)
We cannot say it was an abuse of discretion for Judge Breall to conclude that she did not need a bonding study to decide the return of custody and safe parenting issues presented by the two section 388 petitions that Father had filed; to evaluate the factual questions that were bound up with the question of whether to apply the distinct parental beneficial relationship question, if the section 388 petitions were denied; and to conduct the "delicate balancing" process that ultimately drove the parental beneficial relationship analysis. (Caden C., supra, 11 Cal.5th at p. 640.)
To do that, Judge Breall had descriptions of the affectionate interactions between Father and Joshua during supervised visits; she had the social worker's assessment of the nature and quality of that relationship in the 366.26 report and addendum; she had the social worker's testimony; and she had testimony from Father himself. We might have made a different call about the added value of a bonding study. But given the inherently limited record for an expert to draw upon-which resulted from the fact that the relationship between Father and Joshua could be evaluated only in the context of a series of supervised visits between the two-we must conclude that Judge Breall's decision to evaluate this record on her own was not arbitrary, capricious or patently absurd.
Cf. In re J.D. (2021) 70 Cal.App.5th 833, 860 (reversing rejection of beneficial relationship exception and stating, "[W]e cannot overlook the fact the agency provided very little information in its prior reports during the case about the quality of mother's relationship with J.D. or even the nature of her interactions with him during visitation.").
B. Denial of First Section 388 Petition
In his first section 388 petition, Father argued that, because he had been released from jail, he should be provided with reunification services to strengthen his bond with Joshua. Joshua's attorney and the Agency both opposed the petition on grounds that it was contrary to the legislative intent and would prolong Joshua's time in foster care. The trial court found reunification services were inappropriate in the postreunification period, especially in light of Father's waiver.
Section 388 allows the juvenile court to modify an order if an interested party establishes, by a preponderance of the evidence, (1) the existence of changed circumstances or new evidence, and (2) that the proposed change would promote the child's best interests. (§ 388; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The trial court in this case found Father had not met his burden on the threshold issue of whether it would be in Joshua's best interest to start reunification with Father and denied the petition without a further hearing. Father argues the court erred in denying the petition.
A section 388 petition must" 'describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 62.) At late stages in the proceedings, the dispositive question is whether "the best interests of the child require[] that the previous order . . . be set aside." (In re Jasmon O. (1994) 8 Cal.4th 398, 418.)
The standard of review is abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.); In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348 [summary denial].) Judge Breall did not abuse her discretion in denying the section 388 petition because Father's conclusory statements about Joshua's welfare failed to specify how providing a new round of reunification services in the postreunification period-with the attendant prolonged period of foster care-would serve Joshua's best interests. Father's argument is premised on the belief that Joshua's best interests would necessarily be served by preserving his relationship with his biological parent. Caden C. recently emphasized that categorical judgments about one particular aspect of the record presented as relevant to the beneficial parental relationship exception are inappropriate. (Caden C., supra, 11 Cal.5th at p. 637.) There, the issue was the weight to be placed on a parent's failure to reunify and continued struggles with the cause of the dependency. We think the same thing may be said about the significance of a demonstrated parental bond. Certainly that bond was important here. But it was only one factor to consider in the best interests calculus.
Joshua had already been in foster care for more than two years by the time the court ruled on the petition. The statutory maximum is nominally one year for a child Joshua's age (§ 361.5, subd. (a)(1)(A)), though it may be and was extended. "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation] . . . . A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., supra, 7 Cal.4th at p. 317.)
The Legislature provides reunification services for up to 12 months if the child is age three or older when placed into foster care, as Joshua was. (§ 361.5, subd. (a)(1)(A).) Joshua's mother's reunification services were terminated June 26, 2020, at the 18-month review. That ruling terminated the reunification period, and the presumption changed from one favoring natural parenthood to one favoring the child's need for stability and permanence. (Stephanie M., supra, 7 Cal.4th at p. 317.) Father was not entitled to a separate reunification period, and the court did not err in denying services as a matter of discretion on the basis of changed circumstances. In light of Joshua's early childhood trauma, the court had in mind his specific need for stability and trust in an ongoing relationship with a parent figure. The judge concluded: "[I]t's not in the best interest of Joshua at this time to start reunification services and vacate the waiver which on its face appears to be a proper waiver of services" by Father. The court's decision summarily denying the first section 388 petition was not arbitrary or capricious.
C. Denial of Second Section 388 Petition
After Father was denied writ relief by this court, he filed a second section 388 petition requesting return of Joshua to his care with family maintenance services. The Agency opposed the petition and opposed granting a hearing because, it argued, Father had not shown that his requested relief was in Joshua's best interests. Joshua's own attorney also opposed Father's petition, arguing Joshua had already been in foster care too long, and the Legislature did not intend to provide for two separate reunification periods in this circumstance. The juvenile court nevertheless ordered a hearing because it was persuaded "it's in the child's best interest to remain connected to a biological parent," relying particularly on In re J.M. (2020) 50 Cal.App.5th 833.
At the hearing, while Father produced some evidence that he was prepared to care for Joshua physically, he put forth no evidence that he was prepared to care for Joshua's emotional, psychological or behavioral well-being. In light of Joshua's early childhood trauma, his recent history of little-understood sexualized behaviors, and his inability or unwillingness to name the perpetrator, he had "high needs" that Father failed to recognize. Indeed, according to the social workers' reports, Joshua had been diagnosed with PTSD, including a psychiatric opinion in December 2019 that his" 'symptoms are indicative of Complex PTSD, which untreated can result in psychosis.'" Father was unfamiliar with Joshua's particular psychological needs, and his failure to prove he was capable of meeting them fully supported the court's order denying the second section 388 petition.
By the time the second section 388 petition was heard, Joshua had been in Natalie's care for more than 21 months. He was deeply bonded with her. Joshua's concerning behaviors were dissipating, he was performing well academically, and he was growing more sociable, expressive, and open. Natalie "masterfully" managed Joshua's needs and worked in conjunction with his therapist to support him.
The judge did not abuse her discretion in denying the second section 388 petition. In the trial court, Father relied heavily on In re J.M., supra, 50 Cal.App.5th 833. He compared himself to the mother in that case, where the appellate court held the trial court had improperly denied her section 388 petition because she had completely eliminated domestic violence from her life, when that was the only basis for the dependency. (J.M., at pp. 846-851.) Because he was no longer incarcerated, Father claimed he, like the mother in J.M., had eliminated the only basis ever alleged against him for the dependency proceeding. Judge Breall was initially persuaded that J.M. was on point, but she eventually changed her mind. She concluded there was no evidence in J.M. of the mother's inability to care for her child, whereas in this case it was "not clear that the father could properly care for his son at this point . . . ." We believe Judge Breall's reading of J.M. is accurate and the distinction she drew is meaningful and supported by the record. In his opening brief Father implicitly concedes as much, referring as a background matter to Judge's Breall's initial reading of J.M., but then making no mention of the case in support of his claim she erred in denying his requests for section 388 relief.
Father fails to demonstrate how granting him immediate custody would have been in Joshua's best interests when Joshua was bonded to Natalie G. and felt secure in her home, whereas he had never lived with Father. When the judge made her decision, a change in custody would have been disruptive to Joshua's mental health at a crucial time in his development and contrary to a professional psychiatric opinion.
It also would have been contrary to the legislative scheme of encouraging the maintenance of the birth family relationship during the limited-time reunification period, but once that period has been terminated, changing the focus to the child's interests in permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) The reunification period is defined by the length of time the child must remain in foster care, not by an absolute right of parents to services. (§ 361.5, subd. (a)(1)(A).) Father waived his right to reunification services in 2018. And his effort to revive that right in 2020 and 2021 was properly denied, whether as the primary relief sought or as an alternative form of relief, as does his petition for immediate custody of Joshua. The judge did not abuse her discretion in denying the second section 388 petition.
D. The Parent-child Beneficial Relationship Exception
Finally, Father claims he qualifies for the beneficial parent-child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). That exception is to be utilized in" 'exceptional circumstances, '" only when the legislative preference for adoption is overcome by evidence that the child has such a strong attachment to the parent that it would be detrimental to the child to sever that bond. (Caden C., supra, 11 Cal.5th at pp. 629-631.) As noted above, the proponent of the exception must establish by a preponderance of the evidence three elements: "(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." (Id. at p. 631, italics in original, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.).)
"[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. [¶] The third element- whether termination of parental rights would be detrimental to the child-is somewhat different." (Caden C., supra, 11 Cal.5th at pp. 639-640.) Here we review the court's "delicate balancing" of the child's need for stability and permanency against the value of maintaining the vestiges of a true biological parental relationship, with an ultimate focus on whether terminating that relationship would be detrimental to the child, for abuse of discretion. (Id. at p. 640.)
The court impliedly found, upon substantial evidence, that Father satisfied the first element. The point is undisputed. Indeed, he deserves much credit for having maintained visitation with Joshua even while he was incarcerated. On the second element, Judge Breall found Father and Joshua had a bond that benefited Joshua and her finding was supported by the record, but the evidence is mixed as to the substantiality of that bond. Although Joshua enjoyed the time he spent with Father, sometimes asked that he be allowed to see more of Father, and told Father he loved him, it is indisputable that Joshua had a limited history with Father.
On the third element-which focuses on detriment to the child-the court concluded Father had not demonstrated that Joshua's bond to him outweighed the benefits of adoption. Under Autumn H., supra, 27 Cal.App.4th at page 575 and Caden C., supra, 11 Cal.5th at pages 632- 634, the court must weigh the detriment caused the child from severance of parental bond against the benefits the child would derive from the permanency that only adoption can supply. The court may consider such factors 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., at p. 632.)
Overruling heretofore well-established precedent that had as a practical matter put the beneficial parental relationship exception out of reach in virtually all cases (Caden C., supra, 11 Cal.5th at pp. 636-643 & fns. 5, 6, and 7), Caden C. clarified that a parent's continued struggles with the conditions that led to the dependency do not render the parent-who is by definition unfit for parental custody and whose presence in the child's life may not be entirely positive-categorically ineligible for the exception. (Id. at p. 637). "The parent's continuing difficulty with mental health or substance abuse," for example, "may not be used as a basis for determining the fate of the parental relationship by assigning blame, making moral judgments about the fitness of the parent, or rewarding or punishing a parent." (Id. at p. 638.) Certainly, the same is true for the difficulties a formerly incarcerated parent may face in transitioning to life outside of prison.
It is still the case, however, that a substantial positive emotional attachment must be shown at the second step of the analysis. Positive visitation, without proof of substantial attachment between parent and child, generally is not considered enough to establish the statutory exception. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316-1317; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418- 1419.) "[T]o establish the exception . . ., the parents must do more than demonstrate 'frequent and loving contact' [citation], an emotional bond with the child, or that the parents and child find their visits pleasant." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The depth of the attachment shown between parent and child has significant bearing on whether, at the third step of the analysis, its severance will be so detrimental to the child as to outweigh the benefits of permanency.
The parent must show that his or her relationship with the child "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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord, Caden C., supra, 11 Cal.5th at pp. 631-632, 636, fn. 5.)
The relationship between parent and child that qualifies for the statutory exception is characteristically one forged from shared experience on a day-to-day basis. (See Goldstein et al., Beyond the Best Interests of the Child (1979) pp. 3, 19.) Father and Joshua simply do not have a shared history outside of the somewhat artificial circumstances attending supervised visitation. Father has never had custody of Joshua, has not taken care of him overnight, and has not even visited with him unsupervised. At his visits the interaction between the two mostly consisted of the two watching television together and Joshua showing Father his toys. Citing a vein of case law that remains well established even after the significant adjustment in the law made by Caden C., Judge Breall found Father was more like a "friendly uncle" than a parent.
In re Derek W., supra, 73 Cal.App.4th at page 827; In re Beatrice M., supra, 29 Cal.App.4th at pages 1419-1420.
Because Judge Breall made the rulings under review here before the issuance of Caden C., we have examined the record with particular care to make sure her ruling on the beneficial parental relationship exception comports with the principles announced in that case. The record shows that she gave a full account of her reasons for denying this statutory exception. She believed Father cared about the status of being a father more than he cared about having a day-to-day relationship with Joshua. Although she recognized Father's successes in rehabilitating himself, she could not ignore the lack of meaningful shared history between them. She found Father's plans for parenting Joshua to be "vague" and "amorphous." She criticized his disassociating himself from Joshua when he was frustrated with the court's ruling on his first section 388 petition. And she reproached him for giving Joshua a cell phone that had his mother's phone number stored in it, when Father knew Joshua was supposed to have no contact with her. Most important, she found Father did not comprehend the serious trauma Joshua had endured and did not understand his psychological needs.
Although the Supreme Court's decision in Caden C. postdated Judge Breall's decision to terminate Father's parental rights, the parties had full opportunity to address this new case in the briefs in this appeal.
Cf. In re J.D., supra, 70 Cal.App.5th 833, where not only were there many statements in the record from a social worker, a therapist and a foster parent attesting to the strong positive relationship between a child and a mother (id. at pp. 855-858) who continued to struggle with the domestic violence and anger management problems that led to the dependency (id. at pp. 862-863), but the visitation logs also showed a deep emotional connection. About these logs, the court said this: "Many of the entries are intimate, personal and touching. It is hard to do justice to the picture that emerges from them; neither space nor words suffice, much in the way that even the most thorough exposition of a photograph necessarily would fail to capture its detail, nuance and emotional depth." (Id. at p. 856.) The evident strength of the parent-child bond was so strong, in fact, that the court stated it would have ruled the parent-child beneficial relationship exception applied as a matter of law had it not been for evidence that the mother had a habit of "bad-mouthing" the foster parent and thereby attempting to undermine the child's foster placement. (Id. at p. 862.)
We might well have decided the parental beneficial relationship issue differently than Judge Breall did, but we have no authority to substitute our judgment for hers. (Caden C., supra, 11 Cal.5th at p. 641.) We acknowledge that she "thought long and hard about" the issue and carefully considered the relevant case law. We are satisfied that substantial evidence supports the factual underpinnings of her decision, that she understood the balancing process she was ultimately required to make, and that she did not weigh in the balance considerations that are now improper under Caden C. Nor did she improperly penalize Father for his criminal record or hold him to the impossible standard of showing the equivalent of a day-to-day parental relationship in circumstances where he faced the artificial constraints of a supervised visitation schedule while he was incarcerated and then while he transitioned back into the community following his release.
Cf. In re B.D. (2021) 66 Cal.App.5th 1218, 1229 (reversing rejection of beneficial parental relationship exception in light of Caden C. in case involving parents who lost their children to dependency because of drug dependence and inability to provide stable home where the trial court improperly considered these parental deficits in the § 366.26, subd. (c)(1)(B)(i) analysis).
In the end, reading the record in favor of the difficult judgment made by Judge Breall, as we must, she appears to have been persuaded by the Agency's argument that, due to the extreme trauma Joshua had suffered as a very young child, it was too risky to expose him permanently to the possible destabilizing influence of someone who undoubtedly loved him, and who he loved in return, but who failed to comprehend his special needs and might unwittingly compromise his healthy development. (Caden C., supra, 11 Cal.5th at p. 634 ["Sometimes . . . a relationship involves tangled benefits and burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship."].) Thus, in deciding where the ultimate balance should be struck-an undertaking our Supreme Court has aptly described as "daunting" (id. at p. 635)-Judge Breall decided that "terminating a relationship with negative aspects would have some positive effects that weigh in the balance" (ibid.). On this record, that "tip[ped] it in favor of severing the parental relationship to make way for adoption." (Ibid.)
As we read the record, Judge Breall's concerns about the phone incident, the immature way Father handled her decision in August 2020 not to grant him reunification services or a bonding study, Father's professed lack of knowledge of Mother's abuse of Joshua, and Father's refusal to accept therapeutic visitation, all confirmed that there was indeed the potential for such a risk, even though Father stated his love for and "fervent desire to have his child and to have contact with hi[m]." The best way to ensure Joshua's continued healing and best chance for sustained healthy growth, Judge Breall seems to have concluded, was to cement the permanency of his relationship with Natalie G., while accepting that Father may not be in the picture at all, if Natalie were to so decide. Given the fragility of a child this age, who experienced the trauma this child did, we cannot say that no reasonable judge would strike the same balance Judge Breall did. We realize that the disappointment, pain, and, yes, even the potential long-term negative effects that Joshua may suffer from having Father recede from his life are also real risks. But in making the type of "crystal ball" judgment about Joshua's future that the court was charged to make, we think Judge Breall was within her discretion to opt for adoption, which is, after all, the choice the Legislature prefers.
The Agency invited Judge Breall to consider that Natalie G. was receptive to a kind of "open adoption" in which she ensured Father had a continuing role in Joshua's life, but Judge Breall, appropriately, said, "I don't know what open adoption really means." That was a key comment in giving us confidence the decision here was consistent with the precepts of Caden C., which emphasizes that proper evaluation of detriment at the third step of the analysis must presuppose outright severance of the parental relationship. "Because 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.) There is no room in this analysis for, in effect, fudging the most difficult part of it by assuming the parent who invokes the exception will have a continuing role in the child's life.
III. DISPOSITION
The judgment terminating Father's parental rights is affirmed, as are the challenged orders leading up to it, including the order of August 18, 2020, denying Father a bonding study, and the orders of August 18, 2020 and March 5, 2021, denying his section 388 petitions.
WE CONCUR: POLLAK, P. J. ROSS, J.[*]
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.