Filed 3/9/22 In re V.T. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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C.G. (mother) and M.T. (father; collectively referred to as parents) each appeal[1] from the juvenile court’s order terminating their parental rights and freeing the minors, S.T. and V.T., for adoption. (Welf. & Inst. Code, § 366.26.)[2] The parents jointly contend the juvenile court erred when it found the beneficial parental relationship exception to adoption did not apply to mother (§ 366.26, subd. (c)(1)(B)(i)). Father additionally argues that the court erred in granting a section 388 petition suspending his in-person visits with the minors.

We will affirm the juvenile court’s order granting the section 388 petition regarding father’s visitation, but reverse its orders terminating mother’s and father’s parental rights and remand for a new hearing on termination of parental rights.

BACKGROUND

A

Family History

Mother and father are married and have two minor children together, S.T. and V.T. Mother has two older children from previous relationships, A.C. and E.C.,[3] who resided with their own fathers or other family members.[4] Father also has three older children from prior relationships, and his parental rights to one of those children, A.T., were terminated in 2008 for engaging in domestic violence with A.T.’s mother. The parents have a long history of referrals to Child Protective Services.

B

Dependency Petition

On April 26, 2019, the Sacramento County Department of Child, Family and Adult Services (Department) filed section 300 petitions on behalf of S.T. (then three months old) and V.T. (then one year old), alleging the parents failed to protect S.T. and V.T. and failed to provide regular care for them due to a mental illness, developmental disability, or substance abuse (§ 300, subd. (b)(1)). As to father, the petition specifically alleged that he had ongoing substance abuse problems with alcohol, cocaine, and methamphetamine since at least 2013 from which he failed or refused to rehabilitate and which placed the children at substantial risk of physical harm, abuse, or neglect. Father tested presumptive positive for methamphetamine on April 18, 2019. Father’s driver’s license also had been suspended in June 2013 for driving under the influence (DUI), and in August 2014 and May 2018 for felony DUI causing bodily injury, and father continued to drive the children despite his suspended license.

The petition further alleged that mother and father failed to protect the children as they engaged in ongoing domestic violence in the children’s presence, including verbal arguments, verbal death threats, harassment, threatening each other with knives, pepper spaying each other, vandalism of property, ripping and grabbing of clothing, throwing of car keys, chasing, pushing, shoving, biting, scratching, slapping, hitting, punching, kicking, father bear hugging mother and squeezing her ribcage from behind while pregnant, and father putting his fingers in mother’s mouth and obstructing her airway. The Sacramento Police Department responded to 10 domestic violence calls involving mother or father over the course of a year.[5] The parents had refused to obtain restraining orders and continued to reside together and be in a relationship. The ongoing domestic violence placed the children at a substantial risk of suffering serious physical harm, abuse, or neglect.

C

Detention

The court issued protective custody warrants for the children, and they were removed from their parents’ care on April 27, 2019.[6] In a detention report filed three days later, the Department recommended that the court detain S.T. and V.T. in out-of-home foster care as they could not be safely maintained in their parents’ care given their ongoing pattern of domestic violence and anger management issues, as well as father’s untreated substance abuse issues.

According to the detention report, mother and father had a substantiated referral for domestic violence on February 24, 2018, in which they agreed to a safety plan to discontinue domestic violence, father agreed he would continue therapy with Terra Nova, and mother would complete anger management. However, since that time, there had been nine other police reports regarding domestic violence. The detention report described the incidents of domestic violence and attached the associated police reports, which the detention report described. Mother reported that father was using alcohol, cocaine, and heroin as of March 2019; the paternal grandmother reported that father began using methamphetamine when he was 16 years old. Father was on searchable probation as a result of a prior DUI conviction, and a drug test conducted by probation on April 18, 2019, was preliminarily positive for methamphetamine.

The social worker made an unannounced visit to the hotel where the family was staying on April 19, 2019. Mother claimed she was sick and could not hear the social worker so she did not answer any questions. When asked about the incident leading to the referral, father said mother made a false report because she was angry, and that they had resolved the situation and the children were safe. He claimed mother had abandoned the children and he had taken care of them for a month, and when mother returned she did not know where the children were, but that they were not missing. Father claimed that neither he nor mother used any substances, and he reported that he tested clean for his probation officer the previous day. When asked about domestic violence, father stated that it was not relevant to the current referral, and he denied having a history of domestic violence. Father said they did not have time for informal supervision services due to their work schedules, and later became verbally aggressive with the social worker.

At the detention hearing on April 30, 2019, the Department and counsel for the children submitted on the detention report, but mother and father each objected and entered denials as to the report and recommendation, arguing they were not provided with reasonable services in an effort to address any domestic violence issues prior to detention. After considering the detention report and the arguments of counsel, the court detained the children and ordered separate visitation for mother and father a minimum of two times per week. The court ordered that reunification services be provided to the parents without prejudice, and set the matter for a jurisdictional hearing in May 2019. The children were placed together in the same foster home.

D

Jurisdiction

The Department prepared a jurisdiction/disposition report that recommended the juvenile court sustain the petition and find the children dependents under section 300. The Department requested a three-week continuance as to disposition to gather father’s substance abuse related criminal convictions to determine whether he was eligible for services.

According to the report, during an interview in May 2019, mother denied that father had an ongoing substance abuse problem, but said she was aware that he had a drinking problem. She claimed that his untreated substance abuse problem did not put the children at risk because he was never around if he was using. Mother agreed that the petition allegations regarding a history of domestic violence were essentially true, although she disputed that some listed acts of domestic violence had occurred, including verbal death threats, threatening each other with knives, chasing, pushing, shoving, punching, kicking, bear hugs while pregnant, or fingers in the mouth to restrict her airway. Mother conceded they had engaged in verbal arguments, pepper sprayed each other, vandalized property, ripped and grabbed clothing, thrown car keys, bit, scratched, slapped, and hit. She further admitted they did not have restraining orders in place and chose to continue their relationship and reside together, and that the domestic violence that the children witnessed put them at risk. Mother was willing to participate in services in order to regain custody of her children.

Father was also interviewed in May 2019, and he denied that he had an ongoing substance abuse problem, claiming he had completed a rehabilitation program a few years prior, although he admitted previously using drugs and alcohol, including marijuana, methamphetamine, cocaine, heroin, and ecstasy. Father said the presumptive positive drug test in April 2019 with his probation officer could not have actually been positive, and he claimed he had to provide negative drug tests for his new job. He denied any knowledge of a DUI conviction in 2018, and claimed he no longer drove the children. Father denied that any domestic violence with mother ever occurred in front of the children, and he asserted that no domestic violence had ever occurred, only arguments outside the children’s presence. Father was willing to participate in services to regain custody of the children.

The jurisdiction report noted that mother did not have a criminal history, but father had several prior misdemeanor convictions or infractions as well as a felony DUI conviction. Father’s probation officer reported that father’s April 2019 presumptive positive drug test was confirmed to be positive for methamphetamine.

Father had a supervised visit with S.T. and V.T. on May 11, 2019, but became verbally aggressive with the family service worker who supervised the visit, and the visit was ended abruptly. Father accused the family service worker of being a pedophile and would not stop cursing; security had to remove father from the building. Mother visited separately with the children that day for two hours.

On May 22, 2019, the Department filed amended section 300 petitions, adding an allegation that father’s child A.T., the half-sibling of S.T. and V.T., had been abused and father’s parental rights to A.T. had been terminated, and that there was a substantial risk that S.T. and V.T. would be similarly abused or neglected (§ 300, subd. (j)). The original petitions were dismissed.

The following week, on May 29, 2019, the Department filed an addendum report and proposed findings, recommending that the juvenile court sustain the amended petition. At that point, mother’s visits with the children were going well. She visited with them on May 15, 21, and 23, 2019. Mother was “ ‘eager, compliant and fully engaged’ ” with the visits. She brought toys and healthy snacks to the visits. Mother’s visits were ongoing, occurring every Tuesday and Thursday for one hour. As previously noted, father’s visit on May 11 was terminated early after he became verbally aggressive with the family service worker supervising the visit, and another visit on May 18 was canceled because the family service worker was out sick.

Prior to the jurisdiction hearing, both father and mother executed waiver of rights forms (JV-190), submitting on the amended petition based on the social worker’s reports. At the jurisdiction hearing on May 29, 2019, the court found mother and father voluntarily waived a contested hearing. All counsel submitted on the social worker’s reports, and the juvenile court sustained the amended petitions after considering the reports. The court set a disposition hearing on June 12, 2019.

E

Disposition

A June 2019 second addendum report recommended that the juvenile court adjudge the children dependents, remove them from the parents’ custody, and provide the parents with reunification services, including programs to address domestic violence, anger control, and general counseling, as well as substance abuse assessment and testing for father.[7] Mother was scheduled to begin an accelerated parenting program as well as domestic violence classes. She was also participating in individual therapy specific to domestic violence. Mother was separated from father and reported that they would be utilizing faith based marriage counseling. She had moved in with her own mother (maternal grandmother).

Since May 23, 2019, mother had supervised visits with S.T. and V.T. on May 30 for two hours, and on June 4 and June 6 for one hour each. Mother was timely and fully engaged during the visits, and there were no concerns reported by the family service worker.

Father worked and resided in the Bay Area, and reported he was no longer in a relationship with mother. Father wanted to begin services in the Bay Area and wanted to participate in drug testing, which was in the process of being arranged. Father agreed to test by June 7, 2019. The last documented visit between father and the children occurred on June 8, 2019, at a fast food restaurant. Father was on time and provided food for the children, and they greeted him with a hug.

The Department was in the process of assessing a paternal cousin for possible placement. She was willing to provide legal permanency for the children through adoption or guardianship if needed.

On July 1, 2019, father filed a pretrial statement, admitting that he had relapsed on drugs earlier in 2019, but that there was no evidence that he had been chronically using drugs since he was ordered to participate in drug treatment in 2013 such that he would be bypassed for services under section 361.5, subdivision (b)(13). Father had been working full time and was cooperating with the Department regarding drug testing and participating in services, and he had recently submitted negative drug tests to the Department.

At a hearing on July 3, 2019, the juvenile court ordered that services be provided to father and adopted the Department’s other recommended findings and orders as to disposition. The court set a six-month review hearing in December 2019, which was later continued to January 15, 2020.

At a relative placement hearing on August 7, 2019, the court found the paternal cousin was not appropriate for placement at that time, and the court maintained the general placement order for the children. Mother reported that she was participating in the ordered services, had almost completed parenting and domestic violence classes, and had reenrolled herself in anger management. Father reported some issues with having to drug test twice weekly given his new job.

F

Six-Month Review Hearing

The Department filed a six-month permanency review report (§ 366.21, subd. (e)) on December 6, 2019, recommending that the juvenile court terminate services for mother and father, and that the court set a selection and implementation hearing under section 366.26 for a permanent plan of adoption. At that point, S.T. and V.T. had been in the same concurrent foster home since April 27, 2019, when they were removed from the parents’ custody.

According to the permanency review report, father was arrested for a domestic violence battery incident involving mother on November 19, 2019; he pleaded guilty to the charge on November 30, and was placed on three years formal probation. Upon his release, he checked himself into a faith based residential program, which could last up to one year.

Father was referred to a domestic violence offender program, but was discharged from the program after two weeks for being argumentative, evasive, hostile, and oppositional. Father was then enrolled in a second domestic violence program, but was removed from the group after a month due to ongoing defiant behavior and disruptions. The counselor agreed to meet with father individually, but after one session father withdrew from the individual sessions. He believed he would do better with an “ ‘older, white, woman’ ” counselor. At that point, father had completed a total of only five sessions.

Father was similarly discharged from group counseling after a single session. He was again disruptive, and the female group counselor recommended that father might do better in individualized counseling with a male counselor. He was authorized for individual counseling on November 13, 2019, but had failed to enroll for the services as of December 18, 2019.

Father failed to complete his alcohol or drug assessment for treatment authorization. He tested negative for drugs on three occasions and failed to test on four others. He had completed 10 out of 15 parenting classes.

The social worker asked mother about father’s domestic violence arrest, and she explained that she had been trying to help father do his services and had driven father to pick up paperwork for an assessment, which father refused to complete. They argued, and father refused to get out of her car, so she drove to a police station where father was arrested. She also reported that she was approximately four or five weeks pregnant with father’s child.

Mother had completed a 15-week domestic violence support group that included sessions of group counseling on topics such as emotional abuse, domestic violence and the effects on children, and healthy relationships. She also had completed 10 sessions of individual counseling. According to her therapist, it was often hard to keep mother on topic and receive straightforward answers. Mother would benefit from continued psychotherapy as she lacked accurate insight into possible personality characteristics that contributed to her difficulties and impacted her child protection skills. She was referred to counseling and had since attended three additional sessions with her therapist. Mother completed eight sessions of anger management and 16 sessions of parenting classes. Mother reported being homeless and living in hotels with father, and was awaiting housing assistance.

Mother was originally receiving two observed visits per week with both children and had progressed to three visits per week in the community by October 2019. However, she started a new job at the end of October 2019 and missed several visits, as the family service worker was unable to reach her. Mother did not contact the social worker until November 18, 2019, stating she had issues with a broken phone and was unable to pay her phone bill. A new visitation referral was made, and mother’s visits were reduced to two days per week given her new work schedule. Mother’s visits were generally good; she was appropriate with the children during visits and was attentive to both children, although she had some difficulty when V.T. got upset or darted off from her.

Father had supervised visits one time per week for two hours. He visited inconsistently and missed several visits without explanation. Father often had to be redirected during visits for speaking negatively about the Department and foster parents, and he had to be reminded to focus on the children. Father became frustrated during visits, used foul language, and threw toys at the ground when angry. The children, however, seemed to enjoy their time with father.

A risk assessment indicated that the risk of returning S.T. and V.T. to parents was “very high.” Although mother had completed many services in her case plan, she had failed to benefit from those services. She was unable to articulate what insight she gained from the services she participated in, or how she could apply the knowledge to protect herself and the children. Although mother denied that she and father were in a relationship, mother was two months pregnant with his child and they were constantly seen together. In the Department’s view, mother was not honest and remained in an unhealthy, abusive relationship with father that resulted in another violent episode as recently as November 15, 2019. Father was considered high risk, as he continued to demonstrate a “very toxic, angry and hostile persona that caused him to be terminated from not only one provider but a total of three providers during the reporting period.” Father had failed to make any substantive progress in his services and had consistently failed to visit with the children.

The permanency review report noted that two-year-old V.T. had some language delays, and he was receiving weekly speech therapy, which seemed to be helping. V.T. shared a significant bond with his caregivers and his parents. Eleven-month-old S.T. was meeting all developmental milestones, and appeared comfortable and attached to the caregivers. He followed the caregivers from room to room and got upset when he was not able to see them. Based on the children’s young ages and lack of significant medical or mental health concerns, the Department deemed the children adoptable. The current caregivers were willing to adopt S.T. and V.T. if reunification efforts failed.

At the six-month review hearing on February 5, 2020, the Department withdrew its recommendation to terminate services for both parents based on father’s representation that he was enrolling in a domestic violence batterer’s treatment program following his most recent November 2019 domestic violence conviction involving mother. The Department agreed to offer the parents six more months of services. The court ordered six months of additional reunification services and continued to detain the children in out-of-home foster care. The court set a 12-month review hearing on April 22, 2020.

G

Twelve-Month Review Hearing

The Department filed a 12-month permanency review report on June 8, 2020, recommending that mother continue to receive reunification services as her progress in her services had been good, but that father’s services be terminated as he had failed to make necessary progress. On May 8, 2020, mother was admitted into a confidential local safe house and was looking for housing but had no income. She was due to deliver her third child with father in July 2020, which made it difficult to find work.

Mother’s mental health assessment diagnosed her with adjustment disorder with mixed anxiety and depressed mood. She completed a six-week codependency educational group program, which she found helpful for enforcing boundaries with father. Mother was still on a waiting list for housing. Mother completed an additional 10 individual counseling sessions, demonstrating great improvement; she had taken accountability and responsibility for her role and behaviors that led to the children’s removal.

Due to COVID-19, mother’s twice weekly visits with the children were moved to virtual visits three times per week for 30 minutes. Mother was appropriate during visits and made efforts to engage the children during virtual visits, although it was hard given the children’s young ages.

Father was discharged from a residential program on March 25, 2020, based on COVID-19 restrictions, after falling ill and requesting to go the hospital. Thereafter, father moved into a sober living house where he was currently residing. He was employed and had recently bought a car that needed to be fixed up before he could drive it. He denied being in a relationship with mother. He had completed 12 sessions of domestic violence offender classes and was referred for individual counseling. Father missed two drug tests and contacts with his recovery specialist, and was noncompliant for the month of May 2020. Father had visited inconsistently with the children since he was discharged from his residential program in March 2020. Due to the pandemic, father’s visits were changed to virtual visits one time per week.

V.T.’s speech issues were improving with services, and he appeared attached to his caregivers and mother. S.T. was meeting all developmental milestones and was emotionally happy and healthy. The children had a healthy attachment to their caregivers, and they were meeting all of the children’s needs.

The risk of returning the children to mother was deemed moderate to high given her lack of support system, resources, or reliable housing. The risk was deemed very high as to father. At that time, the identified concurrent plan was reunification with mother or adoption by the foster parents where the children had resided since the inception of the case.

In an addendum filed June 24, 2020, the Department reported that mother had yet to secure stable housing. Father was continuing to participate in a domestic violence offender’s program as well as individual counseling. He had failed to provide adequate documentation to show he was working on the dates he missed drug testing and meeting with his recovery specialist in May 2020. Father also failed to drug test in June 2020.

Father requested a contested hearing, and the court set the matter for September 3, 2020.

In a second addendum report filed August 25, 2020, the Department reported that in July 2020, mother had acquired housing and given birth to her and father’s third child, D.T. Mother had continued to participate in individual counseling. Father continued to participate in a domestic violence offender program, a batter’s treatment program, anger management counseling, and individual counseling. Father was making progress in his services. Father continued to be noncompliant in alcohol and other drug (AOD) services in August 2020 and was no longer participating in the program.

The contested 12-month review hearing was continued to October 22, 2020, as the Department indicated it was changing its recommendation to continue services for mother to now recommending the court terminate services for mother and set the selection and implementation hearing. The Department filed a third addendum reporting that during an unannounced visit, mother acted strangely and said she was seeing an “ex” but would not identify the person; other evidence tended to show that mother and father had resumed their romantic relationship, and that he had been to her apartment. One of mother’s older children later contacted the family service worker and stated that father was living with mother again, and that she feared for the safety of her younger siblings. Mother had never mentioned that father was living with her during her individual counseling sessions and had failed to disclose that fact to the Department. Mother also apparently left her infant child, D.T., with an acquaintance whom she did not know well and went out drinking even though she was still breastfeeding D.T. The Department therefore determined that mother had not benefited from reunification services and recommended that the juvenile court terminate services for both her and father.

At a hearing on November 9, 2020, the Department and minors’ counsel recommended the court terminate services for both mother and father and set the selection and implementation hearing. Mother objected, denied living with or being in an ongoing relationship with father, and noted that she had completed all of her court-ordered services. Father likewise objected to the Department’s recommendation.

After considering the reports and addendum, the juvenile court continued S.T. and V.T. as dependents of the court, terminated services for both mother and father, and set a selection and implementation hearing on March 3, 2021. The court ordered visitation for the parents consistent with the children’s well-being, with the Department determining the time, place, and manner of visitation.

H

Motion To Modify Prior Court Order Regarding Father’s In-Person Visitation

The Department filed a section 388 petition to change court order (JV-180), requesting that the court suspend visitation with father because during a visit on December 1, 2020, father was verbally aggressive with the family service worker supervising the visit, and tried to punch him in the presence of S.T. and V.T. while father held D.T. in her car seat. The visit was terminated and security had to remove father from the premises. Father threatened that he would find out where the family service worker lived and hurt him. Since that day, father had conducted virtual visits with the children.

At a January 29, 2021 contested hearing on the petition to modify father’s visitation, the social worker testified that in addition to father’s aggressive and threatening behavior at the visit with his children on December 1, 2020, father had also become verbally and physically aggressive with his recovery specialist on January 13, 2021, after the recovery specialist told father his failure to provide a urinalysis sample would be considered an administrative dirty test. A cheek swab taken from father that same day later tested positive for methamphetamine and amphetamine. The social worker also recounted an incident in May 2019 where father was verbally aggressive with another assigned family service worker, causing a change in family service workers.

After the January 13, 2021 positive drug test, father told the social worker that he did not believe he was a drug addict, but he conceded that he had a problem with methamphetamine and that he continued to use the drug regularly. During cross-examination, the social worker agreed that the children seemed to enjoy father’s past visits, and that he had been affectionate and interactive during the visits.

Father testified on his own behalf, denying that he was aggressive with the family social worker during the December visit, and instead blaming the family social worker for getting into his face and yelling before he abruptly ended the visit. While father admitted that he told the family service worker to “stop acting like a tyrant,” he denied cursing. Father denied that he made a fist and acted like he was going to punch the family service worker; he also denied that he grabbed the family service worker’s hand when he tried to reach for D.T. in the car seat, cursed at the man, and told him he would beat him up.

With the parties’ consent, the court reviewed a video of the visitation incident that did not contain any audio. After reviewing the video, and considering the evidence presented and the arguments of counsel, the court found that father had no awareness and insight into his hostility and anger and how his improper communications with others in the presence of the children harmed them. The court found it would be detrimental to force the children to engage in in-person visits where further altercations were possible. The court granted the Department’s request to suspend father’s in-person visitation, but allowed virtual visits as frequent as was in the children’s best interest. Father appealed.

I

Selection And Implementation Hearing

A March 2020 selection and implementation report recommended that the juvenile court terminate the parental rights of mother and father. The Department considered that the permanency of adoption outweighed any possible detriment from terminating parental rights. While the Department acknowledged that the parents loved S.T. and V.T., it did not believe any exception to termination of parental rights and adoption as a permanent plan applied.

The report found that S.T. and V.T. were specifically adoptable given their sibling connection and because neither child had significant medical, developmental, educational, emotional, or behavioral needs that warranted intensive follow-up services. Given their young ages, S.T. (two years old) and V.T. (three years old) were not asked about their wishes for permanency. However, the report noted that both children referred to their care providers as “mommy and daddy,” and sought care and comfort from them as needed. The children were also close with the care providers’ other foster and adoptive children. The care providers were willing to adopt S.T., V.T., as well as their little sister, D.T., who had been removed from the parents’ custody in November 2020 and placed in their home since that time.

The Department reported that mother had visited with the children twice a week for two hours (22 in-person visits and one virtually) since November 2020; she missed or canceled four visits. Because she missed consecutive visits on February 3 and February 7, 2021, the Department decreased her visits to once a week. The Department was concerned that mother sometimes included her older daughters, A.C. and E.C. (aged 10 and 16), in the visits, and that they ended up caring for S.T. and V.T. during the visits instead of mother. Father had visited virtually twice a week for 30 minutes following the incident with the family service worker in December 2020; visits were later decreased to once a week, and father had missed five visits since November 2020.

Father’s pretrial statement argued that he had maintained regular and consistent contact with the children to the extent he had been able to, and that his visitation was positive and evidenced the close connection he had with S.T. and V.T. He believed it was to the children’s benefit to continue their relationship with him.

Mother’s pretrial statement objected to a permanent plan of adoption, and instead requested that the court select legal guardianship as the permanent plan. Mother argued that the beneficial parental relationship exception applied because she had maintained regular and consistent contact with the children, her visits had been positive and evidenced her close connection with S.T. and V.T., that the children continued to see her as their parent, and that they would benefit from continuing their relationship with her.

A contested selection and implementation hearing took place on March 26, 2021. Mother called family service worker Chelsea Wilson to testify on her behalf. Wilson testified that she had supervised mother’s visits since December 2019. Wilson characterized mother’s visits as positive; mother was organized and clean, helped the children wash their hands and go to the restroom, brought healthy food for them to eat, provided activities like interactive puzzles, and disciplined V.T. in a positive manner when necessary. Wilson had some concerns that during visits mother relied too heavily on one of her older daughters to help care for the children, and at some point her older daughters stopped coming to the visits.

According to Wilson, the children recognized mother, but V.T. usually asked if they were going to visit father when transported for visits and simply seemed happy to go on a ride with the driver. S.T. did not mention father when being transported. One time, when the care provider’s sister was in town for the holidays, V.T. wanted to stay with the care providers and did not want to go his visit with mother. Wilson had heard the children refer to the foster father as “dad.”

There were hugs and kisses when the children arrived at visits with mother, and mother and the children were affectionate with one another during the visits as well as when the visits ended. At the end of a visit, mother walked the children out, loaded and buckled them in the car, prayed over them, and told them she would see them next time. The children were not upset when the visits ended, and they did not cry when they returned to the care givers’ home. Wilson acknowledged that mother did a good job of ending the visits appropriately to minimize the children’s uncomfortableness or emotions.

Mother testified on her own behalf. She currently visited with the children every Sunday for two hours, and her visits were planned and organized. She missed one visit due to her grandmother’s funeral.

For visits, she arrived on time, participated, and was engaged with the children. The children were generally excited to see her, and they called her “mommy.” She greeted them with kisses, and they were affectionate with one another. She described them as “very attached” to her. V.T. always wanted to sit next to her, and he would hug and kiss her. Mother said S.T. was “warming up to [her] and becoming more attached.” When S.T. saw V.T. hug and kiss mother, S.T. would hug and kiss her as well. Although the children were calm at the end of visits, she was sad to see them go.

Being separated from her children caused her a great deal of anxiety and stress. Her children meant a lot to her, and they knew her as their mother. She wanted to grow with them and be a good role model and parent for them. She wanted the juvenile court to return the boys to her. Mother denied that she inappropriately had one of her older daughters act in a parenting role for the children during visits.

Mother testified that she had last seen father in August or September 2020 when he used a key that he had forcefully stolen from her following the birth of their third child, D.T., in July 2020. Although she had an active restraining order against father since November 2019, mother testified that she did not call the police or have her locks changed. Her older daughters were there when father entered the apartment with the key, and they were surprised and upset to see him and asked why he was there.

Asked why she did not call the police, mother then remembered that she had called the police and was told to make a police report. Mother later acknowledged that father was present at her apartment in November 2020 when the Department removed D.T. from mother’s care. She claimed she tried to inform the social worker that father had a key to her apartment and had come over several times. Mother said that in the future she would call law enforcement in order to be more protective.

Father testified on his own behalf. Since December 2020, he had had virtual visits with the children one time a week for 30 minutes. During the visits, he read them books and asked them about their day. The family service worker who supervised the visits told him he was doing a good job; she had never redirected him or expressed concerns about his parenting techniques during visits. S.T. and V.T. called him “da-da,” and they told him that they missed him and loved him; V.T. gave him “kisses” over the phone, and upon seeing this, S.T. would do the same. According to father, whatever V.T. did or played with, S.T. wanted to do. When he previously had in-person visits, the children were always happy to see him; he would buy them presents at the mall and take them to eat. V.T. would look sad at the end of visits. Father admitted that sometimes when V.T. would act out, he would threaten to end the visit and leave, and the children did not want him to leave.

Father was living in a residential program focused on maintaining sobriety. He finally recognized how much his drug abuse had ruined his life and the life of his family.

Despite his drug relapses, father believed that V.T. and S.T would benefit from continuing their relationship with him because he genuinely cared about them and was working on himself so he could be a better parent. When asked why he believed it would be positive for him to remain in the children’s lives, father testified that he did not want to abandon them and wanted to show them something different. If the court allowed him to remain in the children’s lives, he believed he could show them a completely different person than who he had been throughout the dependency proceedings.

Following the close of evidence, the Department argued that the children were likely to be adopted and were doing well in the foster home that they had been in since being removed in April 2019. The children referred to their foster parents as mommy and daddy, and referred to their foster siblings as brother and sister. It was not in the children’s best interest to, nor would they benefit from, continuing their relationship with mother and father. The Department argued that mother had not demonstrated an ability to exercise protective capacity for them, she had ongoing codependency issues with father, and there were both physical and verbal domestic violence issues that continued throughout the case.

As to father, the Department argued that he had severe anger management, domestic violence, and substance abuse issues. Due to the children’s young ages (two and three years old), the Department did not believe it was in their best interest to delay or affect a permanent plan of adoption in the hope that father may one day benefit from services.

Mother objected to the proposed finding that the children were specifically adoptable given various developmental delays and the need to keep them together, and also objected to terminating her parental rights and adoption as the permanent plan. Mother argued the beneficial parental relationship exception applied because she had maintained regular visitation, had a strong, natural parent-child relationship with the children, and that severing her parental rights would deprive the children of a substantial positive emotional attachment.

Father also objected to the Department’s recommendations and argued that the beneficial parental relationship exception applied given the strength and positive nature of his relationship with the children, which they would continue to benefit from if his parental rights were not terminated. According to father, because he had made progress during the case, he could serve as a positive role model for S.T. and V.T. Despite the children’s young ages, he had been able to establish and build a meaningful relationship with them through positive visits.

The court took judicial notice of the prior findings and orders within the juvenile court file and found by clear and convincing evidence that the children were likely to be adopted; they had been stable in their foster placement for almost two years and the foster parents were well aware of the children’s particular needs, and they had met those needs and were willing to adopt. While the juvenile court found that the parents had established regular visitation and contact with the children, the court did not believe the parents established that the benefit of maintaining the parent-child relationship outweighed the benefits of adoption, taking into account the age of the children, the length of time that the children had spent with the parents, the effective interaction between the parents and the children, and the specific needs of each child. The court emphasized that the children were very young, as were the parents, and that the children referred to their foster parents as their mother and father and recognized them in that role. The parents still had supervised visits given the choices and decisions they had made regarding their efforts or lack of efforts to comply with services. The court did not believe it was in the children’s best interest to continue witnessing father’s aggressive outbursts during visits.

In the juvenile court’s view, the parents were asking the court to have the children wait even longer than the two years they had already waited in foster care and to implement a lesser permanent plan “so that the parents can do the things that they should have done in the last two years.” Even though the parents’ visits were often positive, the court found that, from the children’s perspective, there was no evidence that their relationship with the parents was so beneficial that it amounted to the sort of relationship that should result in foregoing the stability and permanency offered by adoption.

The court adopted the Department’s recommendations and findings, terminated parental rights, and freed the children for adoption. Mother and father each timely appealed the court’s section 366.26 orders.

DISCUSSION

I

Beneficial Parental Relationship Exception To Adoption

Mother contends the juvenile court failed to engage in the “subtle and case-specific weighing process” of the children’s relationship with her as required by In re Caden C. (2021) 11 Cal.5th 614 when determining the beneficial parental relationship exception did not apply. Had the juvenile court applied the correct legal standards as enunciated in Caden C., which was issued two months after the section 366.26 hearing in this case, mother contends the court would have found that she established the exception. Father joins mother’s argument.

At the section 366.26 selection and implementation hearing, 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, original italics.) The court should decline terminating parental rights only if the parents can establish termination would be detrimental to the child under one of the statutory exceptions. (In re Caden C., supra, 11 Cal.5th at p. 631 [“ ‘[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption’ ”].) “In other words, when a parent establishes that one of the exceptions applies, adoption or termination is not ‘in the best interest of the child.’ ” (Ibid.)

The beneficial parental relationship exception applies when: “The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and conduct with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) There are three discrete elements a parent must show by a preponderance of the evidence to establish the exception: “(1) [R]egular 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 (original italics); id. at pp. 636-637.)

Our Supreme Court recently analyzed this exception in depth in Caden C., published after the juvenile court’s section 366.26 ruling here. The Supreme Court found the first element “straightforward,” requiring that the “ ‘parents visit consistently,’ taking into account ‘the extent permitted by court orders.’ ” (In re Caden C., supra, 11 Cal.5th at p. 632.) The second element 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.” (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.) Finally, for the third element, “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.” (Id. 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 terminating parental rights would be detrimental to the child, the court is not comparing the parent’s and custodial caregiver’s attributes. (In re 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 determinative, otherwise the exception would never apply. (In re Caden C., at p. 637 [because a section 366.26 hearing is held when a parent has not been successful in addressing the problems leading to dependency, the exception can “only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency”].) While 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.), 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.)

Performing this analysis, as mother argues, is a “subtle enterprise.” (In re Caden C., supra, 11 Cal.5th at p. 634; id. at p. 635.) Sometimes, “a relationship involves tangled benefits and burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship” (id. at p. 634), and a bonding study or other relevant expert testimony may be helpful in determining the importance of the parental relationship for the child. (Id. at p. 633, fn. 4.)

The Supreme Court also determined the applicable standard of review for the beneficial parental 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), and the third element, given it is a hybrid of factual determinations and discretionary balancing, is “properly reviewed for abuse of discretion.” (Id. at p. 640.) “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.’ ” (Id. at p. 641, original italics.)

In this case, the juvenile court found, and the parties agree, that the parents established the first element of regular visitation and contact. Substantial evidence supports this finding. As documented in the social worker’s reports and mother’s testimony, mother regularly visited S.T. and V.T., considering the extent the visits were permitted.

After finding regular contact, the juvenile court then considered whether “the benefit to the child of maintaining the parent-child relationship outweigh[ed] the benefits of adoption.” In doing so, however, it appears the juvenile court may have considered factors deemed improper under Caden C.

While the juvenile court considered the length of time the children had been out of their parents’ care, which was relevant under Caden C. to the second element of whether the child would benefit from continuing the relationship (In re Caden C., supra, 11 Cal.5th at p. 632), the juvenile court also focused on “the parents very young ages.” But the parents’ respective ages say little about the quality of their relationship with the children and whether the children would benefit from continuing the relationship. Even a very young parent may have a substantial emotional attachment with his or her child.

In finding the exception did not apply, the juvenile court also relied heavily on the parents’ past issues leading to dependency and their inability to address them following services. The court emphasized that “[b]oth of the parents in this case are still engaging in supervised visitation because of the choices and decisions that they have made in regard to their efforts and steps to comply with services,” and that the parents were asking the court to implement a lesser plan than adoption so they could “do the things that they should have done in the last two years.” The Department’s counsel similarly remarked in closing argument at the section 366.26 hearing that mother had ongoing codependency issues with father, and that there were both physical and verbal domestic violence issues that continued throughout the case. In other words, that mother’s participation in services had failed to rectify the problems that brought the children before the juvenile court.

As Caden C. clarified, however, these considerations are relevant only as far as they negatively impact the parental relationship with the child. (In re Caden C., supra, 11 Cal.5th at p. 638.) While the juvenile court attempted to link father’s continued struggles with negative impacts on the children, the court made no effort to link mother’s struggles with any negative effects on S.T. and V.T.

The juvenile court’s decision may also have relied on the children’s bond with the caregivers without assessing their relative bond with mother. The section 366.26 report stated that both children referred to their care providers as “mommy and daddy,” and sought care and comfort from them as needed. The court similarly noted that the children referred to their foster parents as their mother and father and recognized them in that role. The Department makes similar assertions in its brief in this appeal. But other evidence showed the children were generally excited to see mother during visits that they referred to her as “mommy,” and that they shared a significant bond. Mother testified the children were affectionate with her, greeting her with kisses, and that they were “very attached” to her.

A child can have an attachment to both his or her caregiver and his or her parents; it is not necessary that the child be primarily bonded with the parent for the exception to apply. (In re J.D. (2021) 70 Cal.App.5th 833, 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”].) As In re J.D. recognized, “a child’s emotional attachments are not a zero-sum game.” (Ibid.) Thus, the fact that the children shared a bond with the foster parents does not mean that they did not have a meaningful attachment to mother, as the court’s comment seems to imply.

We cannot fully assess the prevalence or impact these improper considerations may have had on the juvenile court’s ruling. (In re J.D., supra, 70 Cal.App.5th at p. 854 [“[W]e conclude that the juvenile court’s ruling cannot be affirmed on this record, because we cannot be certain the juvenile court did not consider factors disapproved of in Caden C.”].) As the juvenile court did not have the benefit of Caden C. when making its ruling, we shall remand the matter for a new section 366.26 hearing so the juvenile court may make its determination in light of Caden C. in the first instance. (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 guidance provided in [Caden C.]”]; In re J.D., 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”].) Because we are reversing the order terminating mother’s parental rights, which precludes S.T.’s and V.T.’s adoption at this time, we shall also reverse the order terminating father’s parental rights. (In re Mary G. (2007) 151 Cal.App.4th 184, 208; Cal. Rules of Court, rule 5.725(a)(1).)

II

Section 388 Order Changing Father’s Visitation

In a cursory fashion, father purports to appeal from the juvenile court’s order granting the Department’s section 388 petition to suspend his in-person visits with the children and require virtual visits instead. However, father then asserts that his “challenge is only his joinder to mother’s opening brief,” and he does not provide any argument or cite any authority to support his appeal from the juvenile court’s virtual visitation order.

“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court of Los Angeles (1970) 2 Cal.3d 557, 564.) To the extent father has failed to provide argument or reasoned analysis challenging the juvenile court’s order granting the Department’s section 388 petition, he has forfeited the issue on appeal. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [when a point is asserted without argument and authority for the proposition, an appellate court may deem it to be without foundation and need not discuss it].) We presume the juvenile court’s order granting the section 388 petition regarding father’s visitation was correct, and we do not address the issue further.

DISPOSITION

The juvenile court’s order granting the Department’s section 388 petition to modify father’s visitation is affirmed, but the orders terminating mother’s and father’s 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 In re Caden C., supra, 11 Cal.5th at page 614, and the views expressed in this opinion.

/s/
Robie, J.

We concur:

/s/
Hull, Acting P. J.

/s/
Earl, J.

[1] We consolidated case Nos. C093636 (father’s appeal) and C093923 (mother’s appeal) for purposes of briefing, oral argument, and decision only. To the extent beneficial, mother and father each join in the other’s appellate briefs.

[2] Further undesignated section references are to the Welfare and Institutions Code.

[3] Both A.C. and E.C. reported witnessing mother and father engaging in domestic violence and physical fights; they worried about their younger half-siblings S.T. and V.T. because they also observed mother and father constantly fighting.

[4] A.C. and E.C. are not the subject of the present appeal.

[5] The domestic violence calls to police occurred on February 24, March 6, April 7, May 18, August 31, and November 3, 2018, and January 1, February 12, and twice on March 21, 2019.

[6] Father was not cooperative and became verbally aggressive with the social worker while trying to execute the protective custody warrant.

[7] A third addendum report likewise recommended providing father with services even though the Department believed Welfare and Institutions Code section 361.5, subdivision (b)(13) technically applied given father’s prior conviction for violating Vehicle Code section 23153, subdivision (b).