Opinion
A168057
01-12-2024
In re A.V., A Person Coming Under the Juvenile Court Law. v. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. J45044)
GOLDMAN, J.
Mother and father of A.V. appeal from the juvenile court's order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. After efforts to reunify A.V. with his parents failed, the Solano County Health and Human Services Department (department) recommended that the juvenile court order that A.V. be adopted. The parents objected, arguing that the parental-benefit exception applied pursuant to section 366.26, subdivision (c)(1)(B)(i), and that the juvenile court should instead order a legal guardianship.
Further statutory references are to the Welfare and Institutions Code.
Parents now argue that the juvenile court misapplied the factors from In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) in evaluating the application of the parental-benefit exception, and that substantial evidence does not support the court's ruling. Parents also argue that the department did not sufficiently develop evidence addressing their bond with A.V., who at the time was less than three years old. A bonding study was necessary, parents argue, because A.V. was too young to verbalize his feelings about them.
The department argues that substantial evidence supports the juvenile court's ruling and that the court did not misapply the Caden C. factors. We agree that substantial evidence supports the juvenile court's ruling, and conclude that parents forfeited their arguments regarding a bonding study and the department's failure to develop sufficient evidence regarding their bonds with A.V. We affirm.
BACKGROUND
I. Factual Background
A.V. was removed from mother and father's care the day after his birth in August 2020, when mother tested positive for methamphetamine. Mother admitted using methamphetamine regularly during her pregnancy and for approximately one year prior to his birth. Father also regularly used methamphetamine and alcohol, and had past interactions with the dependency system related to his older children. Within a few days, A.V. was placed in the care of his paternal aunt and the aunt's partner (relative caregivers). The juvenile court ordered reunification services for both parents.
Initially, neither mother nor father made adequate progress on their case plans and A.V. remained in the relative caregivers' home for approximately 15 months. Father and mother both regularly visited him. During visitation, both parents interacted appropriately with A.V. Father fed and bathed him, played with him gently, and changed his diapers. Mother would feed, bathe, and change A.V.'s diapers. A.V. and mother shared a "good bond."
Mother eventually stopped using methamphetamines. She obtained a job, and father moved out of their joint home. Mother was meeting her case plan objectives; father was meeting some of his objectives. A.V. and mother began having transitional overnight visits, and then he was placed back in mother's custody in November 2021. The court ordered family maintenance services for mother and A.V., and continued family reunification services for father, who was allowed to move back in with mother. Father moved back in with mother for a time, but eventually decided to take a step back from the proceedings so as not to interfere with mother reunifying with A.V.
In March 2022, mother missed drug tests and tested positive for methamphetamines and other controlled substances. In May 2022, the court terminated family reunification services for father, who had stopped communicating with the department. The court ordered continued visitation for father.
On July 5, 2022, father arrived at mother's home under the influence of alcohol. Mother and father argued and father attempted to leave with A.V. When mother tried to stop him, father pushed mother and punched her in the face. A temporary emergency protective order was entered against father. Mother worked with a department social worker to develop a safety plan, which included that mother would not allow father to have contact with A.V. and that she would seek a permanent protective order. On July 28, the department received a report that father had A.V. in his care. Upon responding to the report, a department social worker observed a video showing the parents and A.V. together on July 25, 2022. They had been together on at least three separate occasions since July 6, 2022, and father reported he was living with mother and A.V. Mother was not truthful with the department about father's interactions with A.V., and father reported that mother was not properly caring for him.
The department filed a new detention petition in August 2022, stating that the prior disposition was not effective. Mother had relapsed and was using methamphetamines. Mother also continued to allow father to care for and visit with A.V., notwithstanding the safety plan she had developed with the department.
The department returned A.V. to the relative caregivers' home, and the juvenile court ordered visitation for both parents. Neither parent was eligible to reunify with him, as the statutory 18-month timeline had passed. The court set the matter for a contested hearing pursuant to section 366.26, to consider termination of the parents' rights and to select a permanent plan for A.V.
II. The Section 366.26 Hearing
The department's report for the section 366.26 hearing recommended that the court order adoption for A.V., with six additional months of services for the parents. The relative caregivers were willing to adopt A.V. Mother asked the court to order that the relative caregivers have a legal guardianship over him, so that she would have an "opportunity in the future to know [her] child." Father joined mother's request.
The department's report stated that A.V. told the relative caregivers that "daddy hit mommy." He told the relative caregivers to stop tickling each other, which he perceived as violence. He had sleep disturbances and bad dreams, including swinging his arms and waking up screaming.
The report acknowledged that both parents visited A.V. regularly. Mother brought toys, snacks, and activities to visits. Father brought breakfast and toys and interacted with him appropriately. The parents also visited A.V. at family events and gatherings. Mother had renewed her efforts to stop abusing substances.
At the June 2, 2023 hearing, all parties agreed that the parents had visited A.V. regularly. A department social worker who had not been present at the visits testified at the hearing. The social worker testified that mother was appropriate during visits and that A.V. did not demonstrate "negative behaviors" afterward. A.V. was happy to see mother, who was engaging. Mother would color and play appropriately with him, bring food, talk with him, and tend to his needs; the visits were good. Father had "a good relationship with" A.V. and attended to his needs; he and A.V. engaged well with each other. It did not appear there were negative consequences to A.V. when court-ordered visitation with the parents became less frequent. Nor did he have trouble transitioning back to the relative caregivers after visits.
The social worker testified to an incident the day before the hearing, when mother was at the relative caregivers' home. The caregivers reported to the social worker that mother was "confrontational and upset with the aunt.... [S]he was yelling at the aunt, and she was trying to take [A.V.] away." According to the social worker, "witnessing hostile adult confrontation" could be terrifying and emotionally detrimental to two-year-old A.V.
The social worker testified that A.V. had "a very strong relationship" with the relative caregivers. The relative caregivers were happy to have him in their care, and there was no indication that they had a negative relationship. The caregivers met his needs.
Mother testified that she visited A.V. nearly daily before the hearing. She explained that at visits, A.V. responds to her "very well" and that "he gets so excited." He would run to her, hug her, and call her "mommy." During visits, mother would bathe him, and play and talk with him. She would ask him about his day, read to him, and practice colors and counting. If he was upset, mother would hold and rock him. Mother felt that recently she and A.V. had gotten closer and he was happy with her and would ask for her. She believed her relationship with A.V. was beneficial to him because, she testified: "He listens to me. He obeys [my] orders. He comes to me if he's hurt. He's happy when we see each other."
The court concluded that the parents had failed to meet their burden to show the parental-benefit exception to adoption applied. The court found that the parents had satisfied the first prong of the Caden C. analysis. As to the second prong, the court acknowledged the testimony regarding "a positive relationship" between A.V. and the parents but found that it did not rise to the level of a "substantial positive emotional relationship." The court emphasized that they shared a good relationship and that A.V. was happy to see the parents at visits but explained that it "didn't hear the extra" required for the exception to apply. The court found that the parents had not met their burden at prong two of the Caden C. analysis.
Likewise, although the court "was listening carefully to hear something that would indicate . . . that severing this relationship . . . would be detrimental to [A.V.] . . . [the court] didn't hear it." A.V., the court explained, deserves "a permanent home where he can grow and be healthy, be safe. And[] the benefits of adoption for him, the benefits of long-term stability and permanency, . . . outweigh the detriment, if any, of terminating parental rights." The court terminated the parents' rights and ordered a permanent plan of adoption.
DISCUSSION
Mother and father argue that the juvenile court relied on impermissible factors in terminating their rights; the court's decision was not supported by substantial evidence; and the department did not develop sufficient evidence of bonding from which the juvenile court could determine whether the parental-benefit exception applied.
"[W]hen a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception." (Caden C., supra, 11 Cal.5th at p. 629.) The exception "requires a parent to establish, by a preponderance of the evidence, [] that the parent has regularly visited the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child." (Ibid. [citing § 366.26, subd. (c)(1)(B)(i)].) "[T]he exception applies in situations . . . where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child." (Id. at p. 630.)
"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." (Caden C., supra, 11 Cal.5th at p. 633.) The court must therefore determine "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." (Ibid.) Overall, the court asks "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.)
I. Standard of Review
We review the first two Caden C. factors-whether the parent has visited the child regularly and whether the child would benefit from continuing the parent-child relationship-for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We likewise review the factual determinations underlying the third factor for substantial evidence. (Id. at p. 640.) "In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists ....'" (Ibid.)
We review the court's ultimate decision as to the third factor-whether terminating the parent-child relationship would be detrimental to the child- for abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 640 .) "A court abuses its discretion only when '" '. . . making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.) Under either standard of review, we may not substitute our "own judgment as to what is in the child's best interest for the trial court's determination in that regard." (Ibid.)
II. Application of the Caden C. Factors
A. Regular visitation
The department conceded to the juvenile court and here that both parents regularly visited A.V. The juvenile court agreed. The first Caden C. factor is satisfied.
B. Substantial positive relationship
Whether the child has a substantial positive attachment to the parent involves a consideration of "a slew of factors," including the child's age, the portion of the child's life spent in parental custody, the positive or negative effect of the parent-child interaction, the child's particular needs, and how the child "feel[s] about, interact[s] with, look[s] to, or talk[s] about their parents." (Caden C., supra, 11 Cal.5th at p. 632.) At the same time, however, courts "remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Ibid.) "Expert opinions or bonding studies provided by psychologists who have observed and/or reviewed the parent-child relationship are often 'an important source of information about the psychological importance of the relationship for the child.'" (In re Katherine J. (2022) 75 Cal.App.5th 303, 317 (Katherine J.).)
"[T]he beneficial relationship exception demands something more than the incidental benefit a child gains from any amount of positive contact with her natural parent." (Katherine J., supra, 75 Cal.App.5th at p. 318.) "[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Some courts look for" 'the mysterious X factor' that transforms a person from a mere 'friendly visitor' to a parent with '" 'a substantial, positive, emotional attachment.'" '" (Katherine J., at p. 319.)
Mother largely takes issue with the lack of information about the nature of the bond between her and A.V. in the department's reports and the social worker's testimony at the section 366.26 hearing. Mother notes that the social worker who testified had never participated in a visit; the social worker's direct knowledge was limited to the bond between A.V. and the relative caregivers; and the juvenile court did not order a bonding study to assist it in evaluating mother's bond with A.V., a young child with limited expressive capabilities.
We agree, in the abstract, that it was problematic that the department's reports and the social worker's testimony at the section 366.26 hearing provided little insight into the bond between mother and A.V. (See In re D.M. (2021) 71 Cal.App.5th 261, 270-271; In re B.D. (2021) 66 Cal.App.5th 1218, 1230, fn. 5.) But the cases mother cites do not stand for the proposition that reversal is required when the department's reports contain limited bonding information. In those cases, the juvenile courts' rulings were reversed because they relied on considerations that Caden C. deemed improper or because they otherwise misapplied the Caden C. analysis. (See In re B.D., at p. 1222; In re D.M., at p. 264; In re Dy.P. (2022) 76 Cal.App.5th 153, 166-168; In re J.D. (2021) 70 Cal.App.5th 833, 863-865.) The juvenile court here made the requisite findings under Caden C., and as explained below, those findings were adequately supported in the record and not based on improper considerations.
And although we agree that a bonding study could potentially have been highly useful in this case (Caden C., supra, 11 Cal.5th at pp. 632-633 &fn. 4; see, e.g., In re S.B. (2008) 164 Cal.App.4th 289, 295-296, 298-301), neither parent requested a bonding study or objected in the juvenile court to the department's failure to develop evidence regarding A.V.'s bonds with his parents. These arguments, therefore, are not properly before us on appeal. (See Caden C., supra, 11 Cal.5th at p. 633, fn. 4 [bonding study should be conducted "where requested and appropriate"] (italics added).) Mother cites In re M.V. (2023) 87 Cal.App.5th 1155 and In re M.G. (2022) 80 Cal.App.5th 836, but those cases are inapposite. In both cases, the juvenile court ordered and expressly relied on a bonding study that the reviewing court determined failed to analyze the issue of bonding properly under Caden C. (In re M.V., at p. 1180; In re M.G., at p. 850.) Here, by contrast, no bonding study was ordered in the first place and the juvenile court did not rely on an analytically inapposite study to make its findings under Caden C.
The department and parents disagree as to the import of the evidence that A.V. transitioned well between mother and the relative caregivers. Mother argues this means that he had a secure attachment to her, while the department argues this means he did not have a strong attachment to her. Without a bonding study, expert opinion, or some other informed insight into the psychology of this two-year-old child, we decline to attribute significant weight to either party's interpretation of this ambiguous evidence. We do, however, note that we must indulge in reasonable inferences that support the juvenile court's interpretation of the evidence. (Caden C., supra, 11 Cal.5th at p. 641.)
Mother also argues, in effect, that substantial evidence did not support the trial court's determination that the bond between her and A.V. was not sufficiently strong for the exception to apply. But the juvenile court's ruling was supported by substantial evidence. A.V. was removed from his parents' care the day after his birth. He spent the first 15 months of his life in the custody of the relative caregivers. He then spent approximately eight months in mother's custody before he was returned to the relative caregivers. At the time of the hearing, he had spent more than two years in the custody of the relative caregivers. We can also infer from the juvenile court's ruling that the court believed mother's instability and inconsistency due to her substance abuse, as well as A.V. witnessing parental violence, tended to undermine his bond with his parents.
The court acknowledged that A.V. had a "good" relationship with mother and father but explained that it did not see the "extra" required for the parental-benefit exception to apply. Both parents fault the juvenile court for referring to this "extra," contending that it is unclear what the court had in mind. But the court's immediately preceding comments make clear that the "extra" was the "substantial positive emotional relationship" required by Caden C., rather than the simply "good" interactions the court agreed it saw. The court's comments were consistent with the case law, which requires a showing of more than the "incidental benefit" that any child receives from loving interactions with their parent. (Katherine J., supra, 75 Cal.App.5th at pp. 318, 319.) Mother bore the burden to provide evidence of something "more than frequent and loving contact" between her and A.V. (In re Dakota H., supra, 132 Cal.App.4th at p. 229), but has not shown that the juvenile court's finding that she failed to meet that burden was erroneous. (Katherine J., at p. 321 [although parent and child "have maintained a warm and loving relationship, there is substantial evidence in the record supporting the juvenile court's conclusion"].)
We focus our discussion on mother, as there was more evidence of a substantial positive relationship between A.V. and mother than there was as to father. Father, like mother, asks us to reweigh the evidence regarding his bond with A.V. But father's arguments fail for the same reasons mother's do. The available evidence also tends to show that father's bond with A.V. was not as strong as mother's. Unlike mother, A.V. was never returned to father's custody and he lived with father for only a portion of the time that he lived with mother. Father also chose to take a step back from reunifying with him to facilitate mother's reunification efforts. It was reasonable for the juvenile court to infer from these additional facts that father's relationship with A.V. did not rise to the level required for the parental-benefit exception to apply.
C. Detriment
Mother contends that the juvenile court did not reach the third element of the Caden C. analysis. That is incorrect. The juvenile court specifically weighed the benefit to A.V. of being adopted into a stable, permanent home against the potential loss of the natural parent-child relationship.
Mother next argues that "ample evidence" supported a determination that she satisfied the third Caden C. prong. Father also points to evidence of his positive relationship with A.V. to argue that it would harm A.V. to terminate parental rights. But our task on appeal is not to reweigh the evidence or substitute our judgment for that of the juvenile court. (Caden C., supra, 11 Cal.5th at pp. 640-641.) It was reasonable for the court to conclude that because the parents did not show that they shared a particularly strong bond with A.V., the relative detriment to him in terminating parental rights was less than the benefit to him in obtaining permanency and stability with the relative caregivers. It was also reasonable to infer that the instability caused by the parents' interactions and persistent substance abuse would be detrimental to him. The domestic violence between mother and father appeared in fact to have had a negative emotional impact on A.V. The relative caregivers reported that he would comment that "daddy hit mommy" and wake up swinging his arms with night terrors after the incident, and that he told the caregivers to stop tickling each other because he perceived it as violent. The social worker testified that witnessing hostile adult confrontations could be terrifying and emotionally harmful to A.V. The court could also reasonably infer that because mother was not able to enforce safe boundaries with father, and was dishonest with the department about doing so, maintaining the parent-child relationship was likely to introduce instability and possible danger into A.V.'s life.
Father argues that the juvenile court erroneously weighed the quality of the relative caregivers' relationship with A.V. against the quality of A.V.'s relationships with the parents. We disagree. The juvenile court did note that he had a strong relationship with the relative caregivers, a permissible consideration. (In re I.E. (2023) 91 Cal.App.5th 683, 693.) It did not, however, improperly compare their capabilities as custodial caregivers with those of mother and father. (Caden C., supra, 11 Cal.5th 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)"].)
Father argues that "[t]here is not much information in the record regarding" his relationship with A.V. But as previously noted, mother and father bore the burden of proving the exception applied, including, as relevant here, by requesting a bonding study and/or further factual development in the department reports, or by objecting to the department's failure to develop sufficient evidence. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [in dependency matters, as in other cases, objections are ordinarily necessary to preserve an issue for review].) And Father declined to testify regarding his bond with A.V.
Father contends that the juvenile court was not permitted to consider the potential for ongoing visits with A.V. once parental rights were terminated, but there is no indication the court did so. And although both parents argue that a legal guardianship would be a reasonable permanent plan for A.V., they have not shown that the juvenile court's decision to terminate parental rights was unreasonable. (See Caden C., supra, 11 Cal.5th at p. 641.) Thus, the record does not support the parents' claims of error.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: STREETER, Acting P. J., SMILEY, J. [*]
[*] Judge of the Superior Court of California, Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.