Filed 4/17/18 In re M.C. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re M.C., a Person Coming Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Appellant,
v.
A.C.,
Defendant and Respondent.




A151557

(Alameda County
Super. Ct. No. HJ10015743-03)


The Alameda County Social Services Agency (Agency) appeals from a juvenile court order directing the Agency to arrange and pay for a bonding study of the minor M.C. (minor) and his father, A.C. (Father). The Agency contends the court abused its discretion in ordering the study, and further argues that requiring the Agency to pay for the study was an unlawful gift of public funds, a violation of the separation of powers doctrine, and in excess of the court’s jurisdiction. We will reverse the order to the extent it required the Agency to pay for the bonding study, and affirm the order in all other respects.
I. FACTS AND PROCEDURAL HISTORY
The minor was the subject of an original petition filed under Welfare and Institutions Code section 300, subdivision (b), the allegations of which were found true in December 2010. The petition concerned the mental health issues of the minor’s mother and alleged that Father had been arrested for disorderly conduct and public intoxication. At some point, the case was dismissed and Father was granted full custody of the minor.
A. 2013 Section 300 Petition
In March 2013, the Agency filed a new section 300 petition regarding the minor, and the minor was physically removed from Father’s custody. Father had been arrested for public intoxication and child endangerment and had an immigration hold pending. The minor’s mother had an active protective order as to the minor and had previously failed to reunify.
After jurisdictional findings, the court provided 18 months of family reunification services. At the 18-month status review hearing in January 2015, the minor was returned to Father’s custody with family maintenance services.
B. 2015 Section 387 Petition
On December 4, 2015, the Agency filed a section 387 petition, alleging that the previous disposition was ineffective because Father was no longer able or willing to care for the minor, having placed him in the home of H.M., a caregiver and non-related extended family member, in October 2015. Because Father had a pending immigration asylum case, his petition for asylum had been denied, and he was in fear of receiving a deportation letter, he wanted H.M. and her husband to become the minor’s legal guardians.
On December 7, 2015, the court detained the minor and adopted a mediation agreement that specified, among other things, that H.M. and her husband would become the minor’s legal guardians. The court ordered Father to visit the minor at the guardians’ home each evening during the week and all day on Sundays.
On December 21, 2015, the Agency filed a Jurisdiction/Disposition Report on the section 387 petition. The Agency recommended that the court find the petition true, order the minor to remain with H.M., and deny services because Father had received reunification services from April 2013 to January 2015 and maintenance services from January 2015 to December 2015. The child welfare worker observed that the minor was comfortable in his placement with H.M., Father called the minor every day and regularly visited him after work, and Father wanted the minor to remain in H.M.’s home.
At an uncontested hearing on December 21, 2015, Father filed a waiver of rights and submitted on the supplemental petition. The court found the allegations of the petition true, denied reunification services, and set a section 366.26 hearing.
C. 2016 Section 366.26 Report and Hearing
In its report for the section 366.26 hearing, the Agency recommended that the court establish a legal guardianship of the minor with H.M. Both parents supported the recommendation. Father had opposed the idea of adoption, and H.M. did not want to go against his wishes; an agreement was reached in mediation that the permanent plan would be legal guardianship.
The Agency advised that the caregivers were able to meet the minor’s needs, had known him since he was four months old, expressed a commitment to him, were involved with his school, and engaged well with him. They were open to continuing visitation with the parents and other family members. The minor continued to show growth in regard to his mental health and was engaging in weekly therapy. Meanwhile, Father had consistently visited with the minor once per week, he often spoke with the minor on the phone, and no concerns had been reported.
On April 14, 2016, the court admitted the Agency’s section 366.26 report into evidence, adopted the Agency’s recommendations, and ordered legal guardianship as the permanent plan.
D. 2016 Subsequent Review Hearing
The Agency filed a Status Review Report for a September 2016 hearing pursuant to section 366.3, as well as an Addendum Report in October 2016. In both reports, the Agency recommended that the minor remain in the legal guardianship and that dependency be continued. The minor indicated that he liked living with the legal guardians and was happy in their home, and that he also liked to visit with Father. The Agency noted that Father regularly visited M.C. on Sundays, and the child welfare worker advised that “[the minor] smiled when speaking about [Father] and stated they have ‘fun’ on their visits” and “likes visiting with [Father].”
At the review hearing in November 2016, the court admitted the Agency’s report into evidence, found legal guardianship appropriate, and continued it as the permanent plan.
E. 2017 Agency Recommendation of New Section 366.26 Hearing and Adoption
On April 14, 2017, the Agency filed a status review report pursuant to section 366.3, this time recommending that the matter be set for a new section 366.26 hearing with a plan of adoption rather than legal guardianship. According to the Agency, the legal guardians claimed that Father said he would likely be deported to Honduras, and although he was unsure of the timing, he believed it was in the minor’s best interests to be adopted.
The Agency noted that Father continued to have regular visits with the minor, and the minor appeared friendly and happy, was developmentally on track, and liked his home. The legal guardians had advised that the minor was doing well, they loved him as their own child, and they intended to adopt him. They also said they supported in-person contact with Father while he remained in the United States, and would work to maintain telephone contact if he was deported.
At the review hearing on April 25, 2017, Father was unable to appear due to work, but his attorney represented that Father did not agree with adoption as the permanent plan. Counsel explained that, although Father was concerned about the possibility of being deported, he was opposed to adoption because he learned from counsel that his parental rights would be terminated permanently and adoption would be a “final undoable action.” Moreover, noting the finding at the earlier section 366.26 hearing that termination of parental rights and adoption would not be in the minor’s best interests due to the parental bond and beneficial relationship between Father and the minor, Father’s counsel argued that the Agency had failed to provide sufficient evidence of a change of circumstances needed for a new section 366.26 hearing. Father’s counsel asked the court to set a contested hearing on the Agency’s proposal for the section 366.26 hearing, but the court declined.
Father’s attorney then requested that the court appoint a bonding expert to evaluate the relationship between the minor and Father in advance of the section 366.26 hearing, asserting “[t]here was a finding of that relationship in April of last year and so the Court could only benefit from having an expert make that evaluation.” The Agency’s attorney asserted that Father “could have the study done at his own expense.” The court inquired, “But why should he have to pay for it?” The Agency’s attorney replied that the information to be obtained from a bonding study did not appear necessary for the court, because the larger issue was that Father was facing deportation.
The court directed the Agency to “arrange for and pay for a bonding study between [the minor] and [Father]” and set a section 366.26 hearing for August 17, 2017.
The Agency filed a motion requesting the juvenile court to stay its order regarding the bonding study, so the Agency could file a writ petition. After a hearing on May 30, 2017, the court denied the motion.
In June 2017, the Agency filed a notice of appeal from the order for the bonding study.
II. DISCUSSION
A. Requiring a Bonding Study
The juvenile court’s discretion to order a bonding study arises from its authority to appoint an expert under Evidence Code section 730. (In re S.R. (2009) 173 Cal.App.4th 864, 869.) Evidence Code section 730 provides: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.”
Here, the Agency was recommending a permanent plan of adoption. At the ensuing section 366.26 hearing, the court would have to terminate Father’s parental rights unless it found a compelling reason that the termination would be detrimental to the minor under a statutory exception. (§ 366.26, subd. (c)(1).) One such exception – the beneficial relationship exception asserted by Father – applies where termination of parental rights would be detrimental to the minor because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
To establish the beneficial relationship exception, a parent must show that severing the parent-child relationship would deprive the minor of a substantial, positive, emotional attachment, such that the minor would be greatly harmed – to such a degree as to outweigh the well-being the minor would gain in a permanent home with new adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348–1349.) Thus, to overcome the statutory preference for adoption, the parent must prove he or she occupies a “parental role” in the child’s life resulting in a significant, positive emotional attachment of the child to the parent. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418; In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
It has long been noted that a bonding study may assist the court in its adjudication of a parent’s assertion of the beneficial relationship exception. (E.g., In re S.R. supra, 173 Cal.App.4th at p. 869 [“the parties or the court may require a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored”]; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1168 [purpose of bonding study was to obtain evidence of the existence and nature of the parent-child bond].) Although in this case it was previously established that a bond existed between Father and the minor, roughly a year had passed. Moreover, a bonding study examines not only the existence of a bond, but the nature of the attachment and the extent of the harm to the minor if the parental relationship is terminated. As the Agency acknowledges in its opening brief, the purpose of the bonding study is “to assist the juvenile court in resolving any issues underlying application of the beneficial relationship exception.”
The Agency nonetheless argues that the bonding study was unnecessary in this case, because it was undisputed that Father consistently visited the minor, they had quality visits, and Father and the minor had a bond. Moreover, as the Agency suggested at the hearing, the beneficial relationship exception might ultimately be found inapplicable despite the bond, because Father will not be around once he is deported. It was still rational, however, for the court to want to learn more about the present nature of the bond between Father and the minor, as well as the harm to the minor if the bond were severed, particularly since the timing of Father’s suspected deportation was unclear. The Agency does not point to any authority that Father’s impending deportation and potential absence from the United States would, as a matter of law, preclude a finding of the beneficial relationship exception.
The Agency also argues that there were “more efficient and obvious” ways than a bonding study for Father to prove a beneficial relationship: relying on previous Agency reports that stated he and the minor shared a bond, testifying at the section 366.26 hearing, and calling the legal guardians, child welfare worker, or therapist as witnesses. However, the Agency did not make this argument at the hearing, and it is not the Agency’s place to decide the source of evidence Father uses to establish the beneficial relationship exception. In any event, it would be reasonable for the court to want the information provided by a bonding study, even with the other evidence the Agency cites.
Finally, the Agency argues that a bonding study would delay permanence for the minor, citing In re Richard C. (1998) 68 Cal.App.4th 1191. The court in that case observed that “[b]onding studies after the termination of reunification services would frequently require delays in permanency planning” and the “denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (Id. at p. 1197.) However, Richard C. merely ruled it was not an abuse of discretion to deny a bonding study under the facts in that case; it does not stand for the proposition that a request for a bonding study must be denied under the circumstances here. To the contrary, the court in Richard C. admonished it was “not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances.” (Ibid.)
Indeed, the Agency’s protest that a bonding study would improperly delay this matter rings hollow. Father’s request for a bonding study was a timely response to the Agency’s decision to seek termination of parental rights and change the permanent plan to adoption. At the hearing, the Agency did not assert that the bonding study would cause undue delay. To the contrary, by suggesting that Father “could have the study done at his own expense,” the Agency expressed concern not in the time the study would take, but in having to pay for it.
The Agency fails to show that the court abused its discretion in ordering the bonding study.
B. Requiring Agency to Pay
The Agency next contends it was error to order the Agency to pay for the bonding study, because the Agency cannot be forced to expend taxpayer funds on a bonding study it neither requested nor needed, and the order constituted an unlawful gift of public funds, violated the separation of powers doctrine (Cal. Const., art. III, § 3), and exceeded the court’s jurisdiction. As the Agency points out, the juvenile court’s powers are limited to those granted by law and incidental thereto. (In re Ashley M. (2003) 114 Cal.App.4th 1, 6–7.) While the court may enforce the Agency’s statutory obligation to provide certain assessments and reports and to make recommendations to assist the court (e.g., §§ 280, 281, 319, subd. (b), 358, subd. (b), 358.1, 361.5, subd. (c), 364, 365, 366.21, subds. (c), (e), (f), 366.22, subd. (a), 366.26, subd. (b)), none of those statutes refers specifically to a bonding study.
Although both parties quote from Evidence Code section 730, they overlook the very next provision in Evidence Code section 731. Subdivision (a) of that section states: “In all criminal actions and juvenile court proceedings, the compensation fixed under Section 730 shall be a charge against the county in which the action or proceeding is pending and shall be paid out of the treasury of that county on order of the court,” but if the “expert is appointed for the court’s needs, the compensation shall be a charge against the court.” (Italics added. See also Govt. Code, § 29603.)
Here, the record indicates that the bonding study was ordered to assist the court. Father’s counsel asked for a bonding study because “the Court could only benefit” from it, and in his respondent’s brief he urges that the bonding study was for the court’s needs. The Agency denied any need for the bonding study, and in its opening brief asserts that the study’s purpose was not to assist Father but “to assist the juvenile court.” Although the court did not expressly say it was ordering the study for its own needs, that is the reasonable inference from the record in this particular case. We will therefore reverse the order to the extent it required the bonding study to be paid by the Agency.
Because we reverse this aspect of the order under Evidence Code section 731, we need not and do not decide whether the order constituted a gift of public funds or violated the separation of powers doctrine.
III. DISPOSITION
We reverse the juvenile court’s order of April 25, 2017, to the extent it requires the Agency to pay for the bonding study ordered on that date. The order is affirmed in all other respects.
 

NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.








(A151557)