Filed 2/15/22 In re A.B. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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Appellants A.G. (mother) and J.B. (father) appeal from the juvenile court’s orders terminating parental rights and freeing the three minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Mother contends the juvenile court erred in failing to find the beneficial parental relationship exception to adoption applied; father joins her claims.

We will reverse and remand the juvenile court’s orders terminating parental rights for consideration under In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2019, the Yolo County Health and Human Services Agency (Agency) filed a section 300 petition on behalf of the minors Au.B. (then age two years) and J.B. (then age seven months) based on ongoing domestic violence between mother and father, father’s substance abuse, and mother’s failure to protect the minors (§ 300, subd. (b)). The minors were identified at detention as members of the Yocha Dehe Wintun Nation (Tribe), and the Agency had been working with the Tribe prior to the minors’ detention. The detention report disclosed mother was arrested for domestic violence against father on April 11, 2019, and father was arrested on May 5, 2019, for strangling mother in the presence of the minors. The parents also had a history of domestic violence including in 2015 when father stabbed mother and was convicted of assault with a deadly weapon. Mother reported that father had a drinking problem that contributed to his anger and aggression. She did not want a criminal protective order issued and did not want to press charges against father. The juvenile court detained the minors and authorized supervised visits for both parents.

The jurisdiction/disposition report recommended that the juvenile court sustain the petition and order reunification services to both parents. The Agency was working with the Tribe, which had intervened in the case, to identify services for the parents and find appropriate placement for the minors. The Tribe agreed with the recommended case plan but wanted the children placed in a tribal home and had identified the home of the paternal grandfather and his wife as the preferred placement. The juvenile court sustained the petition and took jurisdiction over the minors, setting disposition for a contested hearing. The court ordered placement with the grandparents on the condition that they allow supervised visits with mother.

After the disposition hearing in August 2019, the juvenile court ordered family reunification services and supervised visits to both parents. The court further ordered the Agency to organize three-hour unsupervised visits for mother by September 2019. In November 2019, the Agency filed a section 388 motion and a memorandum asking the court to suspend all unsupervised visits for mother, reporting problems with mother either avoiding drug testing or testing dilute three times since September. Following a hearing, the juvenile court denied the Agency’s section 388 in part but granted the Agency’s request to suspend mother’s unsupervised visits if there were any further dilute, dirty, or missed drug tests.

The six-month review report was filed on January 24, 2020, and recommended that the parents continue to receive family reunification services with an interim review in three months. Mother was reported to be engaged in her case plan and visiting consistently with the children. Father completed his residential treatment program and was also engaged in services and visiting regularly.

The Agency filed an addendum before the hearing and changed the recommendation to place the children with the mother under family maintenance and for the father to continue with family reunification services.

On February 25, 2020, the juvenile court placed the minors with mother, ordered family maintenance services, and set a family maintenance review hearing. The court ordered that the minors remain in school on the reservation, that the parents remain separated, and father could not be at the home. Father’s received supervised visitation.

The family maintenance review report recommended further services for both parents. Father was in outpatient treatment and was participating in some, but not all, of the services on his case plan and had been arrested for DUI on May 19, 2020. The Agency received a report that the parents were seen together in their car on May 24, 2020, but the parents denied having contact with each other. Father was continuing with supervised visits.

The Agency reported mother was engaged in her services and made herself and the children available for monthly announced home visits but was never available during unannounced home visits. Mother’s absence was of particular concern during the pandemic, as she had said she rarely went out with the minors due to health concerns and that her mother would watch the minors if she was out. On August 25, 2020, the juvenile court ordered further family maintenance and set an interim review hearing and a further family maintenance review.

The next day mother was observed to leave her apartment without the children and travel to another apartment in Woodland where she picked up the children; father’s car was seen in the parking lot of that apartment. Father’s parole officer told the Agency that father reported he was staying with a friend at that same apartment complex. Father told his parole officer that he had been staying for about a week due to having to evacuate his house on the reservation due to fires. The Tribe informed the Agency that no one had to evacuate the reservation due to fires. The Agency then learned that the apartment was leased to mother and both mother and father’s cars were on the lease, which was signed July 9, 2020.

On August 27, 2020, the minors were placed into protective custody with the grandfather and his wife.

On September 1, 2020, the juvenile court denied the Agency’s detention request and set the matter for a section 387 jurisdiction hearing on September 29, 2020. The court ordered mother to keep her address of record and to notify the Agency if she slept elsewhere. The Agency had learned that the parents had a baby together on May 28, 2020, although at the September hearing, father’s counsel claimed father knew nothing about a new baby.

The Agency filed another section 387 petition on September 18, 2020, again requesting the minors’ detention. The detention report stated that the Agency had been unable to locate the parents’ newborn infant, Ai.B. The lease of the Woodland apartment included all three minors and included both parents’ cars. The Tribe was also unaware that the parents had another baby and they had not enrolled Ai.B. with the Tribe or to receive benefits. Mother also never disclosed her pregnancy, the birth, or her contact with father to any of her service providers. A Yolo County vital records search disclosed that Ai.B. was born at a local hospital to mother and father.

At the contested detention hearing on September 29, 2020, mother admitted that she did not follow the juvenile court’s no contact orders, but testified that she did not believe the minors were at risk from being around father. The court found mother’s testimony not credible, observing that multiple no contact orders had issued in the case, and that mother was given multiple opportunities to acknowledge her ongoing relationship with father but denied it and denied being pregnant, repeatedly deceiving the court. The court detained all three minors and set the matter for jurisdiction, ordering nine hours per week of supervised visitation per parent.

On October 20, 2020, the juvenile court took jurisdiction over Ai.B. and sustained the section 387 petition filed as to Au.B. and J.B. The disposition report recommended that no further family reunification services be offered to the parents and that a section 366.26 hearing be set. At the time of the November 12, 2020 disposition report, mother had 12.5 hours of visitation per week supervised by the caregivers and by the Agency in the caregivers’ home. Visits were reported to be positive; mother assisted the minors with meals, engaged in activities, breastfed Ai.B., and changed diapers. The older minors would cry when she left but were easily consoled. Father was visiting five hours per week in the caregivers’ home.

The Agency recommended that mother not be offered reunification services because after 17 months of services she had failed to make behavioral changes. The Agency also recommended that the juvenile court bypass mother under section 361.5(b)(10) as to Ai.B. because she had failed to reunify with the older two minors and that father not be offered further services as to the older two minors and be bypassed as to Ai.B. under section 361.5(b)(10) and (13). A psychological evaluation of mother had diagnosed her with depression, anxiety and adjustment disorder, and dependent personality traits and antisocial personality features. She was unlikely to be able to make meaningful lasting behavioral change even if more services were offered.

At the contested disposition hearing held on January 5, 2021, the juvenile court terminated the parents’ services as to Au.B. and J.B., bypassed the parents as to Ai.B., and set a section 366.26 hearing as to all three minors.

In March 2021, mother filed a section 388 motion requesting, as relevant here, a private bonding assessment. At the April 1, 2021 hearing on the motion, the juvenile court granted that request.

The Agency’s section 366.26 report recommended termination of parental rights. The parents had regular visitation throughout the case and were visiting with the minors three hours per week at the time of the section 366.26 hearing. The grandfather and his wife had been caring for the minors for 14 months and were willing to adopt them. The Indian Child Welfare Act expert opined that continued custody by the parents would likely result in physical or emotional damage to the minors. Further, the expert opined that the placement with the grandfather was an exceptionally positive placement psychologically, emotionally, and physically, and it was very important that the minors were placed together.

Eugene P. Roeder conducted the bonding study of the minors and mother on May 13, 2021. Mother reported to Roeder that Au.B. told her she did not want to go home to the grandparents and wanted to go home with mother. Au.B. (then age four years three months) told Roeder that she lived with mother, not grandfather, and that she missed being at mother’s house. When the minors saw mother, they were excited and ran to her giving her hugs and kisses. Ai.B. (then age 11 months) crawled into her lap and clung to her during the session. At one point, J.B. (then age two years eight months) got very upset and attempted to hit mother a few times but then hugged her instead.

Roeder opined Au.B. had a positive and healthy attachment to mother as she had lived with mother for some time before the initial removal. J.B. was eight months old when he was initially removed and had not yet developed a secure attachment to mother, but had a partial complicated attachment. Ai.B. was three months old when removed and had not yet formed an attachment to mother, but had a close and affectionate relationship with her. Roeder opined that Au.B. would experience both trauma and detriment if the attachment were severed by termination of mother’s parental rights, adding that it was much less likely that termination would be detrimental for J.B. and Ai.B. There was no comparative study of the relationship between the minors and caregivers and no discussion about how the minors might benefit from adoption, but the evaluation concluded that the minors enjoy and benefit from contact with mother and it would be in their best interests for it to continue.

At the contested section 366.26 hearing held on June 17, 2021, the social worker testified as relevant here that mother loved the minors and Au.B. reciprocated the love, J.B. struggled here and there, and Ai.B. breastfed during the visits. While she acknowledged there was a relationship between the minors and mother, the social worker did not believe there would be substantial emotional harm to the minors if parental rights were terminated.

Mother presented the bonding evaluation at the hearing, but did not testify. Father testified that at the end of his visits the minors did not want to leave and would say they wanted to go home with him, calling him daddy.

At the conclusion of the hearing, the juvenile court found by clear and convincing evidence that the minors were adoptable and terminated parental rights. The court found that the bonding evaluation presented by mother did not meet her burden to prove the beneficial parental relationship exception, and that while the parents had visited regularly, the benefit to the minors of maintaining the relationship with the parents did not outweigh the benefits of adoption to the degree that termination of parental rights would greatly harm the minors. The court further found it was in the minors’ best interests to be adopted by the grandparents, and stated that it could not find that it would be detrimental to the minors to terminate parental rights.

Both parents timely appealed. After numerous granted requests to continue briefing by mother, the case was fully briefed on January 11, 2022, and no party requested argument.

DISCUSSION

The parents challenge the termination of their parental rights, arguing as relevant here that the juvenile court erred by failing to find the beneficial parental relationship exception to adoption applied. Although the Agency does not dispute that mother maintained regular visitation and contact with the minors, it contends mother failed to meet her burden to show termination of parental rights would be detrimental to the minors. As we next explain, we conclude that Caden C. requires reversal and remand for a new hearing.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are limited circumstances permitting the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) Such circumstances include when the parents have maintained regular visitation and contact with the child, the child would benefit from continuing the relationship, and termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i) [beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at pp. 631-632.)

To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The parent must also prove that the parental relationship “ ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’ ” (In re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “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., at p. 575.) On the other hand, when the benefits of a stable, adoptive, permanent home outweigh the harm the child would experience from the loss of a continued parent/child relationship, the court should order adoption. (Caden C., supra, 11 Cal.5th at pp. 633-634; Autumn H., at p. 575.)

Caden C. was decided after the juvenile court’s section 366.26 ruling in this case. As relevant here, Caden C. clarified that the second element (benefit) is, as with the entire analysis, focused on the child, and may be shaped by factors such as: “ ‘[T]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’ [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents.” (Caden C., supra, 11 Cal.5th at p. 632.) “[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.)

Clarifying the third element (detriment), Caden C. held that “the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. [Citations.] 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.) Thus, courts in effect consider “what life would be like for the child in an adoptive home without the parent in the child’s life.” (Ibid.)

Caden C. clarified that, when deciding whether termination of parental rights would be detrimental to the child, the court is not to compare the attributes of the parents with those of the custodial caregivers. (Caden C., supra, 11 Cal.5th at p. 634.) “Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home.” (Ibid.) Thus, a parent’s lack of progress in addressing the issues that led to dependency is not necessarily even relevant to the question of whether the exception applies. A section 366.26 hearing is held when a parent has not been successful in addressing the problems leading to dependency, the “exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency.” (Id. at p. 637.) Inability to address the issues leading to dependency can be relevant in assessing whether the interaction between parent and child has a “ ‘negative’ effect on the child.” (Ibid.) But it is only relevant to the extent it informs the central question before the court: “[W]ould the child benefit from continuing the relationship and be harmed, on balance, by losing it?” (Id. at p. 638.)

“[A] substantial evidence standard of review applies to the first two elements” (visitation and benefit) and the third element (detriment), given that it is a hybrid of factual determinations and discretionary balancing, is “properly reviewed for abuse of discretion.” (Caden C., supra, 11 Cal.5th at pp. 639, 640.)

Two cases that have applied Caden C. are instructive here: In re J.D. (2021) 70 Cal.App.5th 833 (J.D.) and In re D.M. (2021) 71 Cal.App.5th 261 (D.M.). In J.D., the juvenile court terminated parental rights after making “few explicit factual findings concerning the parental benefit exception.” (J.D., at p. 851.) The appellate court reversed and remanded because it could not be “certain the juvenile court did not consider factors disapproved of in Caden C.” (Id. at p. 854.) The agency’s reports focused on the connection between the caretaker, who was a relative of the mother, and the child, but “such evidence does not preclude a finding he had a significant positive attachment to mother.” (Id. at p. 859.) Conversely, there was “very little information in its prior reports during the case about the quality of mother’s relationship with” the child. (Id. at p. 860.) The appellate court found that, though it is not the agency’s burden to disprove the beneficial relationship exception, “by the time the juvenile court scheduled the section 366.26 hearing, the agency’s prior reports should already have provided objective, disinterested information about the quality of [the child’s] attachment to his mother.” (Id. at p. 861.) The mother had also presented evidence, mainly through visitation logs, that the child had a “ ‘substantial, positive, emotional attachment’ to her sufficient to meet the second element.” (Id. at pp. 855, 856-859.)

Similarly, in D.M., the juvenile court terminated the father’s parental rights after a brief analysis finding the beneficial parental relationship exception did not apply. (D.M., supra, 71 Cal.App.5th at p. 268.) The appellate court reversed and remanded because the juvenile court “said nothing about the attachment between father and his children. Caden C. made clear the beneficial relationship exception is not focused on a parent’s ability to care for a child or some narrow view of what a parent-child relationship should look like.” (Id. at p. 270.) The agency’s reports also “gave the court little evidence about the quality of the visits between father and the children, or how the children felt about father.” (Ibid.) The record did include the father’s testimony that “the children wanted to be returned to him, and that the youngest child cried when visits concluded.” (Id. at p. 271.)

Here, the first element is rightly uncontested. There is ample evidence in the record supporting the juvenile court’s conclusion that the parents, particularly mother, had regular visitation with the minors.

There was also some evidence supporting the second element, that the children would benefit from continuing the relationship. As we have described, mother presented a bonding study describing Au.B.’s assertion that she lived with mother, not grandmother, and she missed being at her mother’s house. When the minors, then approximately four, two and one half, and one-year old, saw mother they were excited and ran to her giving her hugs and kisses. The evaluator opined that the Au.B., had a positive and healthy attachment to mother, J.B. had a partial complicated attachment to her, and Ai.B. had a close and affectionate relationship with mother.

Mother asserts she was not merely a friendly visitor. (See In re Angel B. (2002) 97 Cal.App.4th 454, 468.) She argues the evidence shows she “was parental with the children, and that the relationship was clearly beneficial.” She adds that the juvenile court “considered improper factors such as whether the grandparent’s home was more suitable . . . and the failure of [mother] to reunify.”

As relevant to mother’s argument and continuing into its analysis of detriment, the juvenile court asserted: “I would have to find the relationship is a parent/child relationship and not a friendship or visitor relationship and that is not real clear one way or another. But let’s just say we can find it to be a parental relationship, it’s the last criteria, the one I have a problem with and that is the benefit to the children of maintaining and their relationship outweighs the benefits of adoption to such a degree that termination of parental rights would greatly harm the child and I can’t see that this would greatly harm the children. I think the children would be in a wonderful place if they were with their grandparents. [¶] I feel terrible for Mom and Dad, but Mom and Dad got themselves into this position by not being the parents you needed to be when you had the opportunity.” (Italics added.)

The juvenile court also noted that the Tribe believed it was in the children’s best interests to be adopted by their grandparents.

As we have described, the bonding evaluator opined that Au.B. had developed a positive attachment to mother and would experience both trauma and detriment if the attachment were severed through a termination of mother’s parental rights and adoption. Although it was much less likely that termination would be detrimental for J.B. and Ai.B., there also evidence of some detriment to the younger two minors. Although we agree with the Agency that the bonding study is not dispositive in and of itself, it is the only available evidence of bond in the record and it was not found to be not credible by the juvenile court.

Because the record contains some evidentiary support for each element of the beneficial parental relationship exception, we reverse the juvenile court’s order terminating parental rights and remand for a new hearing that applies Caden C. and considers the subsequent appellate cases that interpret it, many of which are cited herein. We do not determine whether the parents carried their burden in establishing this exception. We find only that the juvenile court’s ruling that there was inadequate evidence to find the exception applied here was not adequately supported under Caden C. Further, “we cannot be certain the juvenile court did not rely on improper factors in assessing this element.” (J.D., supra, 70 Cal.App.5th at p. 863.) Thus, we reverse and remand for the juvenile court to weigh the evidence presented under the applicable standard and, in its discretion, consider additional evidence.

We make additional observations to aid the juvenile court on remand. We first note that, as we have cited above and appears elsewhere in the record of this case, the court may have considered improper factors regarding the parents’ past issues leading to dependency and their ability to address them, and the court should refrain from doing so on remand. As Caden C. clarified, considerations regarding the parents’ past behavior are relevant only as far as they negatively impact the parental relationship with the child. (See Caden C., supra, 11 Cal.5th at p. 638.)

Next, it appears the juvenile court may have considered the minors’ bond with the caregivers without assessment of their relative bond with the parents. The court’s observation that the minors “would be in a wonderful place if they were with their grandparents” is largely irrelevant to the application of the parental benefit exception; a child may be attached to both their caregiver and their parents, regardless of the high quality of their current placement. (See J.D., supra, 70 Cal.App.5th at p. 859 [“In proving the existence of a beneficial relationship, mother was not required to prove that [the child’s] attachment to her was his primary bond.” “A child’s emotional attachments are not a zero-sum game”].) Further, placement was not the issue; the issue was bond. On remand, the juvenile court should consider whether “the child has a substantial, positive, emotional attachment to the parent” such that “terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (Caden C., supra, 11 Cal.5th at p. 636.)

We recognize the juvenile court did not have the benefit of Caden C. when making its ruling, which further justifies remand. (In re B.D. (2021) 66 Cal.App.5th 1218, 1228 [“In determining whether the parents met their burden of proof on the second element, the juvenile court did not have the benefit of the guidance provided in Caden C.”]; J.D., supra, 70 Cal.App.5th at p. 863 [“because neither the parties nor the court had the benefit of Caden C., we deem it prudent to remand for a new section 366.26 hearing”]; D.M., supra, 71 Cal.App.5th at p. 271 [“We cannot know how the court would have exercised its discretion if it had the benefit of the Caden C. analysis when making its ruling. We believe the juvenile court should make this determination in the first instance”].)[2]

DISPOSITION

The juvenile court’s orders terminating parental rights are reversed. The matter is remanded for the juvenile court to conduct a new section 366.26 hearing in conformity with the principles articulated in Caden C., supra, 11 Cal.5th 614 and in this opinion, and taking into consideration the family’s current circumstances and any developments in the proceedings that may have arisen during the pendency of the appeal.

/s/

Duarte, Acting P. J.

We concur:

/s/

Renner, J.

/s/

Krause, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] We recognize that in a recent case from the Sixth Appellate District, that court found a pre-Caden C. order terminating parental rights satisfied Caden C. (In re A.L. (2022) 73 Cal.App.5th 1131.) A.L. is distinguishable from our case, including that the juvenile court in A.L. did not consider improper factors as did the juvenile court in this case. (Id. at p. 1157] [“The record here does not show that the juvenile court based its decision that the exception did not apply, in whole or in part, upon the finding that father was not ready to have the minor returned to his custody”].) The A.L. court also distinguished J.D. and D.M., which we follow here as described above. (Id. at pp. 1160, 1161 fn. 14].)