Filed 6/29/22 In re N.B. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Judge Pro Tempore. Reversed and remanded.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.

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I. INTRODUCTION

V.B. (mother) appeals from an order terminating her parental rights over her children, N.B., born in 2014 (older child), and E.B., born in 2017 (younger child), pursuant to Welfare and Institutions Code[1] section 366.26.[2] We reverse and remand for a new section 366.26 hearing.

II. BACKGROUND

A. Jurisdiction and Disposition

On September 18, 2017, the Los Angeles County Department of Children and Family Services (Department) detained the children pursuant to a removal warrant and placed them with maternal grandmother.

On November 9, 2017, the Department filed a first amended dependency petition pursuant to section 300, subdivision (b)(1), which alleged that mother’s medical and emotional problems and history of substance abuse placed the children at risk of serious physical harm.

On May 21, 2018, the juvenile court sustained the petition, removed the children from mother’s custody, and granted mother family reunification services.

B. Six-Month Review Hearing

In a status review report filed on October 29, 2018, the Department described the children as being bonded to maternal grandmother, who provided for the children’s educational needs, health care, and emotional well-being. The children were also bonded to mother, who assisted with the children’s care when she visited them.

Maternal grandmother monitored mother’s visits with the children and she placed no restrictions on the frequency or duration of such visits. Maternal grandmother reported that the children loved mother and enjoyed spending time with her.

At the December 12, 2018, six-month review hearing, the juvenile court ordered that family reunification services continue.

C. Twelve-Month Review Hearing

In a status review report, filed on March 18, 2019, a social worker explained that maternal grandmother and maternal aunt, who resided in the home with the children, were concerned with mother’s behavior. In November 2018, mother began talking about bugs, spraying for bugs, and believing that she had scabies. On December 27, 2018, maternal grandmother contacted the Psychiatric Emergency Response Team, which transported mother to a hospital where she consented to be assessed and treated.

The social worker described mother’s visits with the children as regular and adequate.

At the April 4, 2019, hearing, the juvenile court ordered three months of family reunification services.

D. Eighteen-Month Review Hearing

In a status review report filed on June 17, 2019, a social worker reported that mother’s visits with the children were regular and consistent. The children were bonded with mother and older child requested to see mother and spend time with her. Mother, however, was not complying with the court-ordered case plan and the social worker was concerned about mother’s mental health. The Department therefore recommended that family reunification services be terminated.

At the August 16, 2019, review hearing, the juvenile court found mother’s progress was not substantial and it would be detrimental to return the children to her custody. The court terminated mother’s reunification services and set a section 366.26 hearing.

E. Section 366.26 Review Reports

The children were “flourish[ing]” in the custody of maternal grandmother. The family home also included maternal aunt and M.C., the children’s adult sibling (adult child). The children had a loving and nurturing relationship with maternal grandmother and maternal aunt. Older child wanted to continue living with maternal grandmother, although she also enjoyed visiting mother.

By January 2020, maternal grandmother and maternal aunt wished to co-adopt the children. Accordingly, the Department sought adoption by maternal grandmother and maternal aunt as the permanent plan.

Maternal grandmother and maternal aunt “conveyed an understanding of maintaining birth family connections” and were open to visitation and contact with both parents following adoption, so long as such visitation and contact was safe for the children. They therefore completed a postadoption contact agreement.[3]

The children were also bonded to mother. They loved mother and ran to her when they saw her.

Maternal grandmother believed it was in the children’s best interest to continue monitored visitation with mother. According to maternal grandmother, mother visited the children every other day and the visits were appropriate. Sometimes, however, several days would pass without a visit from mother and mother regularly left visits early, arrived late, or rescheduled. Mother’s visits with the children were positive but she refused to discipline them.

Maternal aunt reported that the children began “acting like babies” when mother visited, but the visits were good overall. Mother would bring sweets, candy, and crafts during visits, which the children saw as “‘fun.’” The children did not listen to mother when she tried to discipline them.

Adult child reported that mother continued to struggle with her mental health and was paranoid about bugs. Younger child was terrified of bugs because of mother’s conduct. Mother’s visits were generally good but mother often argued with family members and yelled and cursed in front of the children.

F. Section 366.26 Hearing

On September 2 and 3, 2021, the juvenile court held the section 366.26 hearing.[4] The court received the Department’s reports and other exhibits into evidence, and took judicial notice of all previous findings, orders, and dispositional case plans.

Mother testified that she saw the children every day until March 2020, when a visitation schedule was put into place. After March 2020, mother visited the children three days a week, three hours a day. Mother missed some visits because maternal grandmother went on vacation or because of mother’s work.

During visits, mother and the children did crafts, listened to music, played with toys and bubbles and did water activities. Mother redirected the children when it was necessary to do so. According to mother, the children screamed and were ecstatic to see her and cried when the visits ended. Younger child sometimes hit mother during visits and was difficult to redirect. Maternal grandmother would have to step in on occasion to help discipline or redirect the children.

Maternal aunt testified that mother’s visits with the children were initially sporadic but became more regular in April 2020.

Following argument by counsel, the juvenile court found the children to be adoptable. The court concluded that mother had a bond with the children and that they shared an “affectionate closeness.” The court then observed: “When I compare the mere affectionate closeness that . . . mother ha[d] through her occasional visits with the children and I juxtapose that with the goal of securing a stable continuous home environment, I find that the need for continuity and stability is outweighed by . . . mother’s bond or the mere affectionate closeness. [¶] . . . [¶]

“So in completing this assessment, I find that . . . mother’s bond with the children and the children’s bond with . . . mother is clearly [outweighed] by the need for these children having stability and continuity. The court must look at whether or not the children would be psychologically harmed or damaged if the parental rights of . . . mother, and . . . father for that matter, are terminated.

“. . . I believe that these children would not be psychologically harmed or damaged because they’re with their relatives and the relatives are ensuring that . . . mother still maintains contact with the children so long as . . . mother’s mental health does not decompensate or deteriorate to the extent that they have to prevent . . . mother from having contact.”

The juvenile court added: “I have no evidence or information or doubt that . . . these caregivers, who are . . . mother’s own relatives, will not honor the consortium agreement.[[5]] I know that there may be no legal remedy for mother to enforce it but neither . . . mother herself has given any evidence to indicate that they’ve ever tried to thwart . . . mother from having contact with her children. [¶] . . . [¶]

“So I do not for one minute believe . . . that . . . maternal grandmother or . . . maternal aunt would prevent . . . mother from contact with these children. Because, clearly, they have not done so throughout this time and I don’t believe they ever will do so. But they will aptly, adequately and properly protect these children in the event that they need to remove . . . mother from a visit situation if . . . mother’s health decompensates.” The juvenile court then terminated mother’s parental rights and ordered that the children be placed for adoption.

III. DISCUSSION

“[T]he goal at the section 366.26 hearing is ‘specifically . . . to select and implement a permanent plan for the child.’ [Citations.] 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. [Citation.] According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] 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. [Citation.] 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. [Citation.]” (In re Caden C. (2021) 11 Cal.5th 614, 630–631.)

One such enumerated exception to the termination of parental rights is the beneficial parental relationship exception. In order to demonstrate that this exception applies, a parent must show: “(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (In re Caden C., supra, 11 Cal.5th at p. 631.) The parties do not dispute that mother demonstrated the first two elements.

“Concerning 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. [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. [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.) “Considering a potential future relationship between the parents and the minors, for any reason, is impermissible at a section 366.26 hearing.” (In re D.P. (2022) 76 Cal.App.5th 153, 169; see also In re C.B. (2010) 190 Cal.App.4th 102, 128.)

Here, in considering whether the termination of parental rights would be detrimental to the children, the juvenile court improperly assumed that the children would continue to have contact with mother. Because the court considered an improper factor when determining whether the beneficial parental relationship exception applied, we will reverse and remand for a new section 366.26 hearing. (In re D.P., supra, 76 Cal.App.5th at p. 170; In re C.B., supra, 190 Cal.App.4th at pp. 128–129.)

IV. DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

[1] Further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Father is not a party to this appeal.

[3] “‘Postadoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children and the agreements are voluntarily executed by birth relatives . . . , and adoptive parents.’” (Adoption of S.S. (2021) 72 Cal.App.5th 607, 623.) Any subsequent refusal of an adoptive parent to comply with the agreement, however, does not “affect the validity of the adoption or serve as grounds for orders affecting [a] child’s custody. ([Family Code], § 8616.5, subd. (e)(2).)” (Adoption of S.S., supra, 72 Cal.App.5th at p. 625.)

[4] On July 8, 2021, mother filed a section 388 petition, requesting that the juvenile court order additional family reunification services and allow unmonitored visits. The court heard and denied the petition. Although mother’s notice of appeal purports to challenge the court’s order denying the petition, mother raises no argument on appeal regarding it. Mother therefore has waived any error with respect to the court’s order denying the section 388 petition. (In re A.L. (2022) 73 Cal.App.5th 1131, 1154, fn. 9.)

[5] We will assume that the court was referring to the postadoption contact agreement.