Opinion
F086442
12-12-2023
In re M.D., a Person Coming Under the Juvenile Court Law. v. ADRIANA D. et al., Defendants and Appellants. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Adriana D. Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant Daniel D. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County. o. JVDP-21-000233, Ruben A. Villalobos, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Adriana D.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant Daniel D.
Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
PENA, ACTING P.J.
Adriana D. (Mother) and Daniel D. (Father) appeal from the order terminating their parental rights as to their biological son pursuant to section 366.26 of the Welfare and Institutions Code. (Undesignated statutory references are to the Welfare and Institutions Code.) On appeal, Mother and Father both argue the court erred in concluding the beneficial parental relationship exception to termination did not apply.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father's biological son, M.D., is the subject of this appeal. However, because of its relevance to the instant case, we also detail facts related to their prior dependency matter.
March 2018 Death of Foster Child and Subsequent Termination of Parental Rights as to Adopted Children
Mother and Father previously cared for foster child J.C., who was found unresponsive by Mother on March 17, 2018; J.C. was two years old at the time. J.C. died as a result of his injuries. The autopsy report indicated J.C.'s cause of death was blunt force trauma, and his injuries were nonaccidental and caused by an adult. Mother and Father reported J.C. had fallen at the playground and in the bathtub, but their version was determined to be inconsistent with J.C.'s injuries.
As a result of J.C.'s death, Mother and Father's adopted daughter and son (the adopted children) were removed from Mother and Father's custody in March 2018. Thereafter, the adopted daughter reported Mother "pow pows" the adopted son. The adopted children were diagnosed with posttraumatic stress disorder. Mother and Father were subsequently denied reunification services as to the adopted children, and their parental rights were terminated.
November 2021 Juvenile Dependency Petition Regarding M.D.
In 2021, the Stanislaus County Community Services Agency (Agency) received a report from a mandated reporter that Mother had recently given birth to a baby boy, M.D., the subject of this appeal. On November 16, 2021, social workers contacted Mother and Father during an unannounced visit to their residence. M.D. was removed from their home. Two days later, the Agency filed a juvenile dependency petition on behalf of M.D. and a detention report in the Stanislaus Superior Court recommending that less than two-month-old M.D. be "detained in suitable placement pending further hearings." The dependency petition alleged the court had jurisdiction over the matter under section 300, subdivisions (b)(1)-(7), (f)(1)-(5), and (j)(1)-(2).
In support of the grounds for jurisdiction the petition provided details regarding the prior dependency matter. Specifically, on March 17, 2018, J.C., a two-year-old foster child in Mother and Father's custody at the time, was found unresponsive and taken to the emergency room. The detention report indicated J.C. died as a result of his injuries and the autopsy report indicated his death was caused by "blunt force trauma." Mother stated J.C. had fallen at the park on March 6th; there was noticeable bruising on his ear after the incident, but Mother did not take him to the doctor. A couple of days prior to being found unresponsive, Mother reported J.C. fell in the bathtub. J.C.'s injuries were determined to be "non accidental and caused by an adult. It was also noted that violent shaking was likely to be a mechanism of death." There were numerous bruises on J.C.'s forehead and both ears, a laceration to the liver, two hematomas on the pancreas, and retinal hemorrhages in both eyes. The story provided by Mother and Father "was inconsistent with both the type and severity of the child's injuries." The remaining children, including the two adopted children, were removed from Mother and Father's care. The dependency petition alleged reunification services were denied to Mother and Father pursuant to section 361.5, subdivision (b)(4) as to their other children and their parental rights were terminated as to their adopted children. It further asserted Mother and Father "used inappropriate physical discipline" on one of their adopted children, resulting in bruising to his body and severe emotional trauma. The detention report also stated, upon removal, one of the children disclosed Mother would give another child in the home, "'pow pows and pow pows with a spoon.'"
The court held an initial hearing on November 19, 2021, during which it made temporary detention findings. It found a prima facie showing had been made: M.D. is a person described in section 300; there is a substantial danger to the child and no reasonable means to protect him without removal; continuance in the home of a parent would be contrary to the child's welfare; temporary placement and care is vested with the Agency pending disposition or further order of the court; reasonable efforts have been made to prevent or eliminate the need for removal; and the child was ordered detained in suitable placement pending future hearings.
A contested detention hearing was held on December 1, 2021, at which Mother and Father both testified regarding their initial interactions with the Agency when M.D. was removed. Mother denied being asked if she would participate in a safety plan at that time. The social worker testified she received a referral alleging Mother and Father had a new baby and they had a previous foster child who "had died under suspicious circumstances in their care." The referral required an immediate response, within two hours, so the social worker, her coworker, and her intern made contact at Mother and Father's address.
The court found a prima facie showing had been made that M.D. was a person described by section 300. The grounds for detention were listed as: "[s]ubstantial danger to minor's physical or emotional health." The court found clear and convincing evidence that reasonable efforts had been made to prevent or eliminate the need for removal; continuance in the home of the parents was contrary to the child's welfare; and temporary placement and care would be vested with the Agency pending disposition or further order of the court. The court ordered M.D. be detained in suitable placement pending further hearing.
Jurisdiction/Disposition Proceedings and Bypass of Services
An amended dependency petition was filed January 11, 2022, adding a jurisdictional allegation under section 300, subdivision (a) (substantial risk child will suffer serious physical harm inflicted nonaccidentally by parent or guardian). The petition also reported, upon inquiry, neither Mother or Father had reason to believe the child is or may be an Indian child.
The Agency submitted a jurisdiction/disposition report dated February 2, 2022, in which it recommended M.D. be adjudged a dependent of the Stanislaus County Juvenile Court and removed from parental custody, and that reunification services be denied to Mother and Father pursuant to section 361.5, subdivision (b)(4) and (11). Specifically, the report stated, "as a result of the concerning injuries that resulted in the death of [J.C.] in their home, as well as the physical and emotion [sic] harm inflicted upon their [adopted children] with the parents' lack of insight as to the current risk to [M.D.], reunification services would not be in the child's best interest and would put him at risk of significant harm or death." The report asserted Mother and Father remained adamant they did not cause J.C.'s injuries despite statements from doctors, police reports, and autopsy reports, and they denied causing harm to their adopted children, who disclosed after they were removed that Mother and Father inflicted physical and emotional harm upon them. Additionally, the adopted children were diagnosed with severe posttraumatic stress disorder after being taken into protective custody. The jurisdiction/disposition report further stated M.D. was placed with a licensed resource family home where he was "doing very well." He appeared "to be bonding well to caregivers as evidenced by his demeanor and body language" and he was "eating and sleeping well." It reflected that Mother and Father had visitation twice a week for one hour each at the Children's Crisis Center (CCC). It noted Father requested additional visitation time in December, and the social worker offered that Mother could visit for an hour on Mondays and Father could visit for the next hour to permit Father one-on-one bonding time with M.D. but Father declined because "he liked the appearance of family." The report further stated according to CCC reports, "visits are going fair but parents struggle to do other activities with [M.D.] other than breast-feeding him." The Agency attached another jurisdiction/disposition report dated February 26, 2019, related to Mother and Father's former adopted children. In a report filed on April 8, 2022, the Agency again recommended the allegations in the petition filed on January 11, 2022, be found true, M.D. be adjudged a dependent of the juvenile court and removed from parental custody, reunification services be denied to Mother and Father, and a hearing pursuant to section 366.26 be set within 120 days.
Cheryl K. Carmichael, Ph.D., a licensed psychologist, prepared a written professional opinion related to the request for bypass of reunification services to the parents as to M.D. dated April 7, 2022, which was filed with the court. She detailed the circumstances surrounding J.C.'s death and the removal of Mother and Father's adopted children and that "[n]either parent admits to or takes responsibility for the traumatized condition of the two adopted children or the death of the foster child." The report stated, "In the face of their absolute denial of past maltreatment of children, there is no amount of classwork in positive parenting that will allow either of them to substantially change their integrity." Dr. Carmichael further stated she reviewed the visitation and contact logs related to M.D. and compared the description of M.D. during visits with the parents and the home visits of the social worker with the foster family and "there is a difference in emotional engagement by the child." She concluded M.D. was "emotionally gregarious with any adult" in the home of the foster parents but he was "more reserved" with Mother and Father. She noted, Mother and Father "use food at any sign of fussing" and "offer food in the absence of hunger indicators." Additionally, Mother defers to Father throughout the visitation time. During solo visits, Mother was described as "engaging with" M.D., but she still fed M.D. independent of cues and "did not challenge his physical abilities with tummy time or tracking." M.D. "is moved from position to position; up, down, tummy, back, sit, feed, repeat with rapidity-with most situations lasting 1 to 2 minutes at most." Father's solo visits were "equally busy and of the same form: rapid changes of position and activity, feeding off-cue, efforts to engage." Carmichael stated M.D. "is not described as engaging either parent with age-appropriate zeal." Additionally, the parents' failure to recognize their behaviors caused the death of J.C., and the emotional and physical abuse of their adopted children makes "the risk for continued abuse and resulting trauma to another child ... high."
The court held a jurisdiction/dispositional hearing beginning on May 4, 2022, and ending on September 22, 2022. Father and Mother both testified at the hearing. Father testified he did not think Mother caused the injuries to J.C. or that she physically or emotionally abused their adopted children. He also denied any child abuse of any foster or adopted children occurred in his home at any time. He testified he believed Mother was a safe parent. However, he stated he had created a parenting plan that involved him parenting M.D. separately from Mother. Father stated the plan would be to address the Agency's safety concerns.
Mother testified she did not accept the court's findings from the previous case that J.C.'s injuries were nonaccidental and occurred in their home. She also testified she did not accept the court's findings in the previous case that she used inappropriate physical discipline on her adopted son that resulted in bruising to his body and severe emotional trauma. She testified she lost everything as a result of the tragedy J.C. suffered. Mother testified she did not accept responsibility for any of the events or circumstances leading to J.C.'s death or the circumstances that led to the removal of her adopted children.
Dr. Carmichael testified to the findings in her report, including that because Mother and Father had absolved themselves of responsibility for J.C.'s death, they were unable and unwilling to reform their behavior as it would require both parents to admit their role in the demise of J.C. She stated she had studied all the documentation associated with the death of J.C. and concluded the death was nonaccidental and at the hands of an adult based on the reports. She testified, "[T]o continue to indicate that it was an accident is a denial of fact."
The pastor at Mother and Father's church testified on their behalf. He testified he counseled Mother and Father to talk through the pain and suffering they were experiencing as parents related to loss. He testified they had accepted what had happened and "they need to work through the pain and grief of it." He did not sense Mother and Father were "denying that the accident took place." He did not sense any indication there was "intentional wrongdoing regarding the accident" or an "unconfessed truth."
Mother and Father's social worker testified to the Agency's safety concerns regarding the parents because they have not acknowledged J.C.'s death was nonaccidental. The sustained abuse allegations of the adopted children were also a safety concern in addition to the death of J.C. Furthermore, after M.D. was born, the parents did not agree to a safety plan.
M.D.'s assigned social worker testified she had previously served as the social worker to Mother and Father's former adopted children. As M.D.'s social worker, she oversaw his visitation, placement, finding concurrency, making sure his development was on track, that he was meeting all his medical and dental appointments, that he had mental health services in place if he needed them, making sure he is going to school if was eligible, and in checking for developmental delays. She checks in during visits if she is working. She explained Mother and Father initially visited M.D. together, but they were eventually split so the Agency could observe their parenting separately. She explained the type of feedback she would give Mother and Father during visits, such as encouraging Father to go on either side of Mother when Mother was holding M.D. to encourage M.D. to turn his head. She reported telling Father to follow M.D.'s lead in play, rather than bouncing him around. She indicated Father is receptive and asks for more feedback. She explained, after the adopted children were removed from Mother and Father's care after J.C.'s death, the initial caregivers noticed bruising. The adopted children had a lot of "trauma-based" difficulties in the home. The adopted daughter would say Mother gives "pow pows"; the adopted son would cower and hide under the table when the caregivers were trying to potty train him, stating, "'No pow pows, no pow pows.'" He would be fearful when he felt he did something wrong; "he would cower as if he was going to be hit, duck down like little kids do in anticipation."
Father's counsel presented Deirdre D'Orazio, Ph.D., a forensic psychologist. In connection with this case, Dr. D'Orazio interviewed both Mother and Father and reviewed documentation related to Father's experiences as a foster parent and biological parent, his progress in "Family Maintenance and Reunification Program" (FMRP) services, and Dr. Carmichael's report. She also reviewed documents related to Mother and Father's previous child protective services case. She prepared a report titled "Forensic Psychological Evaluation," which was submitted to the court. She administered the Historical Clinical Risk Management-20, Version 3, a violence risk assessment tool. She also administered the Hare Psychopathy Checklist, an adverse childhood experiences questionnaire, and a modified version of the Folstein mental status examination. She opined Father did not have general psychological traits, diagnosed medical conditions, or an elevation of risk factors for violence such as would make him likely to perpetrate violence against his child. She testified Father "showed extraordinary insight in learning from the losses [of his foster children, adopted children, and biological child], but he does not show admittance of willful intent to harm the child that was deceased . . .." She further stated Father accepts "a lot of accountability and responsibility for the negligence that was involved in the death of the child and has shown that he would take different actions in the future with children in his care." She opined Father was in "the very low range for future violence." She testified Father was prosocial, which means he does not endorse rule-breaking, and he had community support and many protective factors related to emotional development. Dr. D'Orazio strongly disagreed with Dr. Carmichael's interpretations of the visits between Mother and Father and M.D. and also disagreed Father was unable to continue to care for M.D.'s needs. She testified she believed Father could safely parent, and Father's unwillingness to blame his wife for J.C.'s death was not a reason to deny him services. She stated, in her professional opinion, Father believed J.C. died from the accidents at the park and in the bathtub rather than nonaccidental trauma inflicted by an adult. She further testified there is definitely a bond between M.D. and his foster parents, but the quality of the bond is impossible to judge without more information either through video surveillance, "threeway mirrors," or hours of visitations at different times of the day. She did not think Dr. Carmichael had enough information to opine on this bond based on a review of records and speaking to M.D.'s social worker. She also discussed the superficial nature of supervised visits in that they are conducted indoors with a social worker present and observing rather than in a natural home environment. She further noted the parents had to be masked (due to the COVID-19 masking mandate), which would influence the communication system between the parent and the child.
Dr. D'Orazio testified there is a natural family bond between parents and their biological child. Additionally, when children are separated from their biological family, there is a cultural loss when the parents come from unique countries and they create a culture between them. The loss is based upon ethnicity, religiosity, and unique rituals and ways of celebrating events. Dr. D'Orazio opined that services could benefit Father and therefore M.D. She further asserted, denial of Mother's actions does not affect Father's safety assessment in this case; so, services should not be focused on the denial or admittance of what happened in 2018.
Father's clinician also testified. She prepared a report after Father completed his parent-child labs, which assess the parent's use of the skills learned in the parenting classes. She explained Father also completed the 10 parenting individual sessions. She testified, through the individual sessions, Father had learned some skills to determine whether a child could possibly be being abused or harmed, and he showed an understanding of identifying M.D.'s needs. The clinician reviewed visitation logs sent to her by the parents' social worker and she found some concerning notes suggesting Father was roughhousing with M.D. and holding him over Father's head. She explained the notes also indicated "there was a lot of switching play from one thing to another and a lot of ... loud voice being used." This was not behavior she witnessed during the parentchild labs with M.D. and Father, so the clinician was surprised. She met with Father and discussed using a softer voice considering the smaller area and letting M.D. choose what to play sometimes; Father was open to the feedback.
After the conclusion of evidence and arguments, the court noted the length of the hearing, and that it had spent "an inordinate amount of time over the last couple weeks consolidating the facts." It explained, it reviewed the transcripts, arguments of counsel, and cases and statutes cited. The court stated it was granting the Agency's motion to strike the allegation under section 300, subdivision (b)(7). The court determined by a preponderance of the evidence that M.D. "is a person described by [section] 300(a), (b), (f), and (j) .. ., and, therefore, comes within the jurisdiction of the Court." The court further found "that pursuant to section 361(c), there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor in [sic] the minor were returned home. And there are no reasonable means by which the minor's physical health can be protected without removing the minor from the parents' physical custody. [¶] That reasonable efforts have been made to prevent or eliminate the need for removal. [¶] That the child's placement is necessary and appropriate. [¶] That the Agency has complied with the case plan by making reasonable efforts . . . including . . . relative placement. To return the child to a safe home and complete whatever steps are necessary to finalize the permanent placement of the child." The court found "the extent of progress by both parents towards accessing and participating in services is good." However, the court found "the extent as to both Mother and Father towards alleviating or mitigating the causes necessitating placement has been limited." The court noted, both parents had "shown an unwillingness to accept that [J.C.] died by non-accidental injury while in the care of their parents," and the parents "refused to take affirmative steps to address, alleviate, or mitigate the causes necessitating placement." The court later stated, given the circumstances of the case, it made its jurisdictional findings by clear and convincing evidence.
The court further denied reunification services to both parents, because the court found "by clear and convincing evidence as to [section 300, subdivision] (b)(4), that the parents caused the death of another child through abuse or neglect. [¶] [Section 300, subdivision] (b)(6), that the child has been adjudicated dependent due to infliction of severe physical harm to the siblings by [Mother] and [Father], and that it would not benefit the child to pursue reunification with the parents." Additionally, "[a]s to [section 300, subdivision] (b)(11), the parental rights of the parents of the siblings have been permanently severed. That parental rights were terminated on August 14th, 2019. And subsequently, the parents have not made a reasonable effort to treat the problems that led to the removal of the siblings of the child, [M.D.]."
The court further concluded the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. Additionally, "supervised visits between the parents and the child should continue and be at a minimum of one time per month." The court stated it was "specifically making that finding after having considered the evidence in this case." Pursuant to section 360, the court adjudged M.D. a dependent of the Stanislaus County Juvenile Court and removed him from the physical custody of Mother and Father pursuant to section 361, subdivision (c). Pursuant to section 362, the court ordered M.D. be placed in suitable placement or a statutory alternative under supervision of the Agency. The court set the matter for a section 366.26 hearing within 120 days of the disposition and advised the parents of their right to seek appellate review by notice of intent to file a writ petition within seven days of the orders.
Additional Proceedings Before Section 366.26 Hearing
On January 19, 2023, Father asked the court to change an order in a JV-180 form. Specifically, Father asked that M.D. be placed in his care or, alternatively, that Father receive six months of reunification services "in order to work with the agency to safety plan a way for [M.D.] to return to his care." The Agency opposed the request on the grounds there was no change in circumstances and no showing of best interests to grant the request. The court scheduled a hearing on the request for February 3, 2023. After the hearing, the court denied the request, concluding the proposed modifications did "not state a change of circumstances or present new evidence; and does not provided [sic] clear and convincing proof that such an order would be in the best interest of the minor."
On January 23, 2023, the paternal grandmother also filed a JV-180 form request to change a court order, asking the court to direct the Agency to consider the paternal grandmother for placement, increase visitation time between the paternal grandmother and child, and order a specific, out-of-home placement of the child with the paternal grandmother. The court denied the paternal grandmother's request, stating the petition was not properly served upon all parties, and the petitioner resides at the same address of both parents and continues to be denied placement under the RFA (resource family approval) process.
On March 1, 2023, Father filed a "Parental Notification of Indian Status," indicating he may be a member of, or eligible for membership in, a federally recognized Indian tribe, namely "Cherokee, Blackfeet."
Father's attorney filed a motion to withdraw and was relieved by the court on March 14, 2023. The Office of Dependency Counsel was appointed as counsel for Father. On March 29, 2023, Father's attorney filed a petition to invalidate the proceedings pursuant to the ICWA on Father's behalf, asserting paternal grandmother planned to file an application for citizenship in the Cherokee Nation of Oklahoma and will request to enroll Father, M.D., and B.D. (Mother and Father's other biological son who is not the subject of this appeal). The petition further asserted the Agency failed in its duty to continue its inquiry under the ICWA and the court should invalidate the proceedings to date on that basis and return both M.D. and B.D.'s cases to conduct a dispositional hearing. The Agency filed an ICWA compliance report on April 3, 2023. recommending the court find there is a reason to believe the ICWA may apply as to M.D. and detailing the Agency's attempts to contact family members and indicating the Agency would continue to complete further inquiry.
On April 5, 2023, the paternal grandmother filed another JV-180 form request to change a court order, asking the court to establish separate visitation between the paternal grandmother and the child. The court set a hearing on the request for April 12, 2023.
Section 366.26 Hearing and Termination of Mother and Father's Parental Rights
The Agency filed a section 366.26 report with the court on January 5, 2023, recommending M.D. "be continued as [a] dependent of the Stanislaus County Court," the parental rights of Mother and Father be "permanently terminated," and "that a permanent plan of adoption be established" for M.D. The report stated M.D. was placed with prospective adoptive parents on March 25, 2022, and "[t]he prospective adoptive parents are motivated to adopt" M.D. M.D. appeared to be "well-bonded" to his adoptive parents who appear to love and adore him and have demonstrated to be able to successfully meet M.D.'s physical and emotional needs. The report noted it is clear Mother and Father love M.D., but a minor dependent died in their care due to physical abuse, which puts M.D. at "great risk." The report stated, although Mother and Father "have regularly visited with [M.D.], they have not had [M.D.] in their care for the majority of his life," and he has "created a new sense of stability he deserves in his current placement." "Therefore, there is not a substantial, positive, emotional attachment" from M.D. to Mother and Father. Thus, the termination of the relationship with the parents would not hard [sic] [M.D.] to an extent, outweighed on balance, by the security of a new, adoptive home." The report attached Agency logs, visit reports, and a history of contact with the parents.
The Agency filed another section 366.26 report on May 18, 2023, that also recommended M.D. "be continued as [a] dependent of the Stanislaus County Court," the parental rights of Mother and Father be "permanently terminated," and "that a permanent plan of adoption be established" for M.D. The report stated, since the last reporting period, Mother, Father, and the paternal grandmother visited M.D. on January 25, 2023, February 22, 2023, March 23, 2023, and April 26, 2023. It reported M.D. was placed with his prospective adoptive parents on March 25, 2022, and M.D.'s prospective adoptive parents are "certain to adopt" him if given the opportunity to do so. The report indicated the prospective adoptive parents had been providing care for M.D. and he appeared to be well cared for and "very much loved and accepted by the extended family members." It further indicated M.D. appeared "to be very well bonded" to his prospective adoptive parents. The report included an assessment detailing the home and community and social history of the prospective adoptive parents. The report noted Mother and Father "regularly and consistently visited" with M.D. and clearly love him, but M.D. had spent the majority of his life out of parental custody and he had "created a new sense of stability he deserves in his current placement." It stated, on March 20, 2023, M.D. visited the dentist and became upset during the examination process. And, although Father attempted to console M.D., M.D. "extended his arms to [the] social worker who had transported him there. During visits [M.D.] plays with parents but, it does not appear [M.D.] has a bond with them as proven by [M.D.] wanting the social worker to provide nurturing for him when he was scared." The report concluded "there is not a substantial, positive, emotional attachment from [M.D.] to [Father and Mother]. Thus, the termination of the relationship with the parents would not hard [sic] [M.D.] to an extent, outweighed on balance, by the security of a new, adoptive home." The report attached visitation reports from the visits in January, February, March, and April 2023.
Notably, the record on appeal also includes numerous visitation reports and observations from all of Mother and Father's visits with M.D. during the pendency of this matter. They generally reflect positive interactions between Mother and Father and M.D., including them playing with him, feeding him, and showing affection to him. However, they note Father repeatedly engaged in "roughhousing" and made changes in activities, and both parents at times failed to follow M.D.'s cues.
The Agency filed an ICWA compliance report on May 18, 2023, recommending the court find there is no reason to know M.D. is an Indian child and ICWA does not apply to him. Another visitation observation report was filed with the court on June 1, 2023.
Following continuances to permit the Agency an opportunity to investigate potential tribal connections as required under the ICWA, the court held a section 366.26 hearing on June 8, 2023. At the hearing, Mother's attorney asked "to proceed by offer of proof" that stated if Mother "were called to testify, she would testify as follows: She loves [M.D.] very much and believes she has a strong bond with him. She believes it would be in [M.D.'s] best interest not to terminate her parental rights. She would ask the Court to establish a legal guardianship as an alternate permanent plan for [M.D.]" Father's attorney indicated he had "the identical offer of proof" for Father, "with the exception of pronouns and the additional sentence [that Father] maintains that he has native American heritage."
The Agency asked the court to adopt the recommendations in its cited report. It noted it had no additional evidence "other than what has already been filed in this case, which is the original .26 report, dated January 5th, 2023; the ICWA compliance report, filed May 18th, 2023," "a .26 report for May 18th, 2023," which was an addendum, and the additional visitation log filed on June 1, 2023. The Agency stated it was its position that, based on the evidence before the court, it had met its burden that M.D. will be adopted. Additionally, "neither parent can establish either of the two statutory exceptions to termination." With regard to the "beneficial relationship exception" under In re Caden C. (2021) 11 Cal.5th 614, a parent must meet three elements by a preponderance of the evidence. "First, regular visitation and contact and relationship to which continuation would benefit the child such that termination ... of parental rights would be detrimental to the child." The Agency asserted, considering the facts and evidence before the court, it is not disputed "that both parents have consistently and regularly visited with [M.D.] to the extent afforded by court order; however, as to the second two elements, it is the Agency's position that both parents have failed to meet their burden that termination would be detrimental to [M.D.]" The Agency asserted its position was "supported by the attached visitation logs as well as the assessment provided in the Agency's various reports. For instance, the visitation logs paint a picture of a child who may sometimes enjoy visits with both of his parents, but who, unfortunately, does not view parents as much more than a friend or distant relative." Additionally, from the reports it was clear that M.D. "tends to cry and seek emotional support more from his caregiver and social workers than when leaving visits with parents." The Agency further noted M.D. "has been out of parental care since November of 2021, which was not long after his birth. Therefore, in line with case law, there is clearly not a significant positive or emotional attachment from the child to either parent. And as such, losing this relationship would not harm the child to the point that it would outweigh the benefits of the security of the current adoptive home." The Agency argued, M.D. "is very young and dependent and has been thriving in current placement, which is where he has been the majority of his life. As such, adoption would be the most appropriate and most permanent and stable plan for him." The Agency further asserted it had met its burden by "clear and convincing evidence that the child is likely to be adopted by his current caregivers."
Mother's counsel asked the court not to terminate Mother's parental rights and to find the parental benefit relationship exception applies. Counsel argued, Mother, "in her offer of proof, believes she has a strong beneficial relationship with [M.D.] such that terminating her parental rights would be detrimental to him." She argued, assuming M.D. viewed Mother "as a friend or a distant relative is pure conjecture. What we see in the visit logs is a positive interaction between [Mother] and [M.D.], and visits that go well that [M.D.] does seem to enjoy. [Mother's] perception of those visits as seen-"
At that point the court interjected, stating it reviewed the logs, "but they're just eight pages" and it wanted "to review them again in light of [Mother's] argument." So, the court asked for time and read them again before giving everyone an opportunity to respond.
Mother's counsel then continued: "The first prong ... of the beneficial parent child relationship exception is regular and consistent visitation." Counsel asserted it was not disputed that Mother had "consistently visited throughout the life of the case." Regarding the second prong, whether there would be a detriment to M.D. "such that terminating parental rights would be more detrimental than the benefits he would receive from permanency and adoption, [M]other's position is that she does meet the burden for that prong, that she is an essential part of [M.D.]'s life, and that terminating her parental rights would be detrimental to him." Mother asked the court to instead "establish an alternative permanent plan such as legal guardianship."
Father's counsel joined in Mother's arguments and further asserted "this family has been through quite a lot." Father's counsel noted, the court had "presided over these proceedings much, much longer than I have been around in this case. And I would ask you to just consider your own knowledge of this family and what they have been through and your prior rulings and findings of fact. When making decisions, I would ask you to consider all of that and rule in favor of the parents and not terminate parental rights at this time and order a guardianship."
In response to Mother's counsel's arguments, the Agency asserted that positive visits between Mother and M.D. were "not the same as exhibiting a bond that is so strong that would outweigh the statutory preference for adoption." Rather, the "[p]arents don't meet their burden, so based on the statute, the Court must order adoption."
The court began by making a finding that there is "no reason to know that the child, [M.D.], is an Indian child and the Indian Child Welfare Act does not apply to this dependency." The court further found "that the child's placement is necessary and appropriate. The county agency has complied with the case plan by making reasonable efforts, including whatever steps are necessary, to finalize the permanent placement of the child." The court also made the following findings:
"That the extent of progress towards alleviating or mitigating the causes necessitating placement by the Mother and Father have been none.
"That it is likely that the child will be adopted. The Court has considered the argument and finds that the statutory exceptions do not apply in this case and the burden cannot be met.
"And with that, the Court finds that ... it is likely that [M.D.] will be adopted. That termination of parental rights would not be detrimental to [M.D.] That the permanent plan of adoption is appropriate.
"And that the current holder of educational rights are the care providers."
The court further found a final visit would not be detrimental and should be scheduled within 45 days. The court terminated the parental rights of Mother and Father and found M.D. "continues as a dependent child of the court and remains in suitable placement under the supervision of" the Agency.
DISCUSSION
In this appeal, both parents argue the court erred in concluding the beneficial parental relationship exception did not apply. Instead, they assert their parental rights should not have been terminated because of this applicable exception. For the following reasons, we reject Mother's and Father's contentions.
I. Beneficial Parental Relationship Exception: Standard of Review and Applicable Law
"If the court cannot safely return a dependent child to a parent's custody within statutory time limits, the court must set a hearing under section 366.26." (In re Caden C., supra, 11 Cal.5th at p. 630.) "[W]hen the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved." (Ibid.) "Instead, the goal at the section 366.26 hearing is 'specifically ... to select and implement a permanent plan for the child.'" (Ibid.) "To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them." (Ibid.) "According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption." (Ibid.) "But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan." (Id. at pp. 630-631.) "'[T]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (Caden C., supra, at p. 631.)
"One of these is the parental-benefit exception." (In re Caden C., supra, 11 Cal.5th at p. 629.) "[T]he exception applies in situations where a child cannot be in a parent's custody but 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.)
"[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." (In re Caden C., supra, 11 Cal.5th at pp. 636-637.) The beneficial parental relationship exception is "limited in scope." (Id. at p. 631.)
The first element, regular visitation and contact, is just whether "'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (In re Caden C., supra, 11 Cal.5th at p. 632.)
As to the second element-"whether 'the child would benefit from continuing the relationship'"-the focus is the child. (In re Caden C., supra, 11 Cal.5th at p. 632.) "[T]he 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 parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Ibid.) "[C]ourts often consider how children feel about, interact with, look to, or talk to their parents. [Citations.] Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Ibid.) "Certainly, it is not necessary-even if it were possible-to calibrate a precise 'quantitative measurement of the specific amount of "comfort, nourishment or physical care" [the parent] provided during [his or] her weekly visits.'" (Ibid.) "[O]ften expert psychologists who have observed the child and parent and can synthesize others' observations will be an important source of information about the psychological importance of the relationship for the child." (Id. at pp. 632-633.)
With regard to 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. (§ 366.26, subd. (c)(1)(B); see also id., subd. (c)(1)(D).) 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." (In re Caden C., supra, 11 Cal.5th at p. 633.) "[T]he effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.) But, "a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Ibid.) Accordingly, courts must perform a "subtle, case-specific inquiry" regarding whether the benefit of placement in a new, adoptive home outweighs "'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent.]'" (Ibid.) "When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i).)" (Caden C., at pp. 633-634.) "In many cases, 'the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it would be to lose that relationship, which must be weighed against the benefits of a new adoptive home." (Id. at p. 634.) "Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. [Citation.] And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver. [Citation.]" (Ibid.)
In reviewing the trial court's decision regarding whether to apply the beneficial relationship exception, "[a] substantial evidence standard of review applies to the first two elements." (In re Caden C., supra, 11 Cal.5th at p. 639.) This is because "[t]he 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." (In re Caden C., at pp. 639-640.) Regarding the third element, we also review for substantial evidence the court's factual determinations, ranging "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" and "how a prospective adoptive placement may offset and even counterbalance those harms" for the particular child. (Id. at p. 640.) However, "the 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." (Ibid.) "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.'"'" (Caden C., at p. 641.) "But where, as with the parental-benefit exception, 'the appellate court will be evaluating the factual basis for an exercise of discretion, there likely will be no practical difference in application of the two standards.'" (Ibid.)
II. Analysis
Mother and Father both separately assert the court reversibly erred in concluding the beneficial parental relationship exception did not apply. They both contend the record shows M.D. shared a positive and beneficial relationship with each of them, and it would be detrimental for M.D. to lose this relationship, even if he did not return to their custody. Mother and Father cite to specific observations detailed in the pages of visitation reports in support of their contentions. Mother argues, "[t]he strength and quality of the parent-child relationship ... should lead to the logical conclusion that it will be detrimental for [M.D.] to lose the relationship." She contends, M.D. "had a hard time transitioning after visits and he would get upset easily and take long naps," which "could be a clear indication he wanted to do more of the activity and he was greatly upset that the activity, namely visiting with his parents, was over." She further asserts the court did not break down or specifically address the factors set forth in In re Caden C., but instead summarily concluded adoption was appropriate and terminated parental rights. Father contends the court abused its discretion in failing to consider all the admitted evidence. He cites to the court's statements that it reviewed the logs "but they're just eight pages." He further contends the juvenile court's decision was "conclusory" and did not reflect that it considered or applied the factors required by In re Caden C. The Agency responds the same judge presided over the case from its inception "with only a very short break that did not include any crucial hearings." They assert the record, including the court's thoughtful and thorough decision, belies a claim the court did not review the file; there is a presumption the court properly followed the law and the evidence presented. All the parties agree Mother and Father regularly and consistently visited M.D., as the court found below. However, the Agency disputes either parent established the second or third prong was met.
Initially, we reiterate that the parents bore the burden to establish the application of the beneficial parental relationship exception, and neither parent offered any additional evidence beyond their offers of proof at the section 366.26 hearing. (See In re Caden C., supra, 11 Cal.5th at p. 636.) Notably, the juvenile court did not make an express finding as to whether the parents met their burden on the second element of the beneficial parental relationship exception. But "[w]e review the evidence most favorably to the Agency, which is the prevailing party, and indulge all legitimate and reasonable inferences to uphold the trial court's order." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.)
And here, the record supports a finding that M.D. did not have a "substantial, positive, emotional attachment" to Mother or Father. As our Supreme Court has observed, "'the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it would be to lose that relationship." (In re Caden C., supra, 11 Cal.5th at p. 634.) "Interaction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) But "[t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Ibid.) While the parent-child relationship in this context need not conform to a particular pattern (Caden C., supra, at p. 632), the parents are required to establish that their relationships with M.D. rose above that of a friendly visitor in the child's eyes. (See In re B.D. (2021) 66 Cal.App.5th 1218, 1230 ["an emotional attachment is one where the child views the parent as more than a mere friend or playmate"].) Here, neither Mother or Father presented evidence to support a finding that M.D. had the degree of emotional attachment to Mother or Father that would signify the beneficial relationship envisioned by the statute. Neither parent testified nor called to testify any witnesses who had knowledge of their relationship to M.D., and neither parent requested a bonding study. M.D. was removed from Mother and Father's custody when he was less than two months old, and he was only 20 months old at the time of the hearing. Thus, for most of M.D.'s life the parents had only brief, supervised visits with him.
As discussed earlier, Father presented an expert during the jurisdiction and disposition hearing who spoke about the benefits of a relationship with biological parents. However, she did not opine on the specific bond between M.D. and Mother and/or Father or assert the specific nature of their relationship was such as to be detrimental to M.D. to terminate parental rights.
Moreover, even if we accepted that Mother or Father had established the second element, their appeal fails because the record is devoid of any information showing the bond between Mother and/or Father and M.D. was so strong that it would outweigh the "'security and the sense of belonging a new family would confer.'" (In re Caden C., supra, 11 Cal.5th at p. 633.) Indeed, there was no evidence M.D. would experience significant material or emotional harm from terminating his relationship with Mother or Father. While the visitation reports reflect M.D. had mostly positive interactions with them, there was no evidence M.D. appeared distressed or upset when leaving them or missed Father or Mother in his or her absence. (See In re A.L. (2022) 73 Cal.App.5th 1131, 1159 [although father's visits were "consistent and positive" the minor had no difficulty separating from father at end of visits, and child was not affected and was easily redirected when father missed scheduled video visits]; In re I.E. (2023) 91 Cal.App.5th 683, 692 [though no dispute the visits between mother and child were "meaningful" and the two "showed affection for each other," child experienced no distress at end of visits, which supports juvenile court's conclusion that relationship was not so substantial its severance would be detrimental to child].) To the contrary, the Agency introduced evidence in the form of reports from social workers stating M.D. appeared happy and well-adjusted in the home of his caregivers. They also represented that M.D.'s caretakers, whom he had been with for over 14 months, were committed to adopting him if given the opportunity. (See In re Autumn H., supra, 27 Cal.App.4th at p. 573 ["Adoption, where possible, is the permanent plan preferred by the Legislature"].)
On this record, we cannot conclude the juvenile court abused its discretion in concluding termination of parental rights would not be detrimental to M.D. due to his relationship with Mother and/or Father. That is, the court did not abuse its discretion in determining the relationship with Mother and/or Father was so important to M.D. that the security and stability of a new home with committed and capable adoptive parents would not outweigh its loss.
Additionally, there is no requirement, and Mother and Father cite no authority supporting the proposition, that the juvenile court, in finding the parental-benefit exception inapplicable, must recite specific findings relative to its conclusions regarding any or all of the three elements of the exception. (See In re A.L., supra, 73 Cal.App.5th at p. 1156 ["we infer from section 366.26, subdivision (c)(1)(D) ... that the court is not required to make findings when it concludes that parental rights termination would not be detrimental"]; In re L.J. (2023) 89 Cal.App.5th 741, 754 [court was not required to make findings on the record in denying application of beneficial parental relationship exception]; see generally In re Jayden M. (2023) 93 Cal.App.5th 1261, 1270, fn. 6 ["specific findings are not required absent a statute so requiring"].)
Father also argues the record does not establish the juvenile court correctly applied the California Supreme Court's guidelines set forth in In re Caden C. or that it considered the entire record. However, "[a] '"'judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" [Citation.]'" (In re Julian R. (2009) 47 Cal.4th 487, 498-499; accord, In re A.L., supra, 73 Cal.App.5th at p. 1161.) To that end, "'we apply the general rule "that a trial court is presumed to have been aware of and followed the applicable law."'" (In re Julian R., at p. 499.) Notably, the California Supreme Court's opinion in In re Caden C. issued over two years before the court here concluded the beneficial parental relationship exception did not apply. We presume the court was aware of and followed the applicable law at the time of its decision unless error is affirmatively shown. And here, nothing in the record establishes the court erred in applying the law. Additionally, we cannot conclude the court's statement that it reviewed the most recent visitation reports establishes the court disregarded the evidence presented over the course of this case. The court presided over this matter during most of the duration of the case, including when the jurisdiction/disposition hearing was held and evidence was presented by all parties, including testimony discussing details of Mother's and Father's visits with M.D. And we cannot conclude the record affirmatively establishes the court erred in failing to consider the entirety of the record before it.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: MEEHAN, J., SNAUFFER, J.