Filed 2/25/22 In re K.L. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

The opinion in the above-entitled matter filed on February 1, 2022 is modified as follows:

On page 32, the Disposition is replaced with the following paragraph:

DISPOSITION

The order of the juvenile court denying Father’s section 388 petition is affirmed. The court’s order terminating parental rights is conditionally reversed. The cause is remanded to the juvenile court with instructions to conduct a hearing, at which the parties may present evidence and argument, for the purpose of the court’s consideration, under the appropriate criteria as clarified in Caden C. and this opinion, of whether Mother has met her burden to show that the parental-benefit exception applies. If, after such a hearing, the juvenile court finds that this exception applies, the court shall proceed in accordance with the law. If after such a hearing the court finds that the exception does not apply, the court shall reinstate its order terminating parental rights and proceed with appropriate permanency plan for the children.

This modification constitutes a change in the judgment.

Appellant K.P.’s petition for rehearing filed on February 10, 2022 is denied.

____________________________________________________________

ROTHSCHILD, P. J. BENDIX, J. CRANDALL, J.*

Filed 2/1/22 In re K.L. CA2/1 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Stephanie Padilla, Judge Pro Tempore. Reversed in part with instructions.

Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant K.P.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.L.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________

The instant appeals arise from dependency proceedings regarding K.L. and her half brother C.P. Their mother, K.P. (Mother), appeals from the termination of her parental rights over both children. She argues that the court abused its discretion in concluding the parental-benefit exception to adoption did not apply and in denying her a bonding study to assist her in proving the exception. She further contends the court inadequately responded to her repeated complaints that the Los Angeles County Department of Children and Family Services (DCFS) was failing to facilitate her visits with the children, and thereby prevented her from satisfying the requirements of the exception. We disagree with both contentions. The court did not err in denying her request for a bonding study, and the difficulties with visitation she experienced did not deprive Mother of the opportunity to establish the requisite beneficial relationship with her children. Nonetheless, we reverse because the juvenile court’s decision rejecting the parental-benefit exception was based on considerations the California Supreme Court subsequently clarified should not play a role in an analysis of that exception. (See In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)

K.L.’s Father, S.L. (Father), separately appeals from the termination of his parental rights over K.L., as well as from the denial of his Welfare and Institutions Code section 388[1] petition. Father’s petition was based on his not receiving notice of the disposition hearing, and sought to rewind the proceedings to the disposition phase so that Father could participate in the disposition hearing and receive reunification services. Father argues the lack of notice denied him procedural due process, and thus that the court should not have required him to show that granting his petition would be in K.L.’s best interest. We disagree.

The notice deficiency Father identified did not deprive him of due process. He had the opportunity to remedy the lack of original notice by filing a timely section 388 petition, but failed to raise the notice issue for over a year after learning of it. At that point, Father had received a meaningful opportunity to be heard in the proceedings. The court thus properly considered whether Father had made the changed circumstance and best interest showings required under section 388. We further conclude that the court did not abuse its discretion in concluding Father had not.

Father further argues that the termination of his parental rights violated his substantive due process interest in the care and custody of his daughter because the court did not make any finding of parental unfitness or detriment before terminating his parental rights. But the court did make a finding of detriment at the final section 366.26 hearing, and Father does not argue that the finding was not supported by substantial evidence. Nor could he, as the record contains substantial evidence to support the finding.

We remand this matter to the juvenile court to consider the parental-benefit exception under the appropriate criteria, as clarified by Caden C. For the reasons detailed in our Discussion, we also reverse the court’s order terminating both parents’ parental rights, even though we conclude the court did not err in terminating Father’s rights. We do so because, should the court determine the parental-benefit exception applies to Mother and that a plan of legal guardianship is appropriate for the children, the court should be able to consider whether only Mother or both Mother and Father should receive visitation rights regarding K.L. If, upon remand, the juvenile court finds that the parental-benefit exception does not apply, then it may reinstate its order terminating parental rights and determining the appropriate permanency plan for K.L.

In all other respects, we affirm.

FACTS AND PROCEEDINGS BELOW

The dependency proceedings leading to these appeals involve Mother’s two children, K.L. (now age nine) and C.P. (now age seven). C.P.’s father is not a party to this appeal.

Father was in and out of prison during most of K.L.’s childhood. His criminal history began in approximately 2003 and includes convictions for burglary, robbery, failure to obey the order of a juvenile court, shoplifting, providing false identification to peace officers, receiving stolen property, petty theft, assault with a firearm on a person, taking a vehicle without the owner’s consent, possession of burglary tools, and auto theft. His most recent incarceration began around mid-2016 and ended in March 2020.

A. Prior Dependency Proceedings

DCFS filed its first section 300 petition regarding the family in January 2013. The juvenile court sustained allegations in that petition on the basis of Mother’s mental health and alcohol issues, and removed K.L. from her custody.[2] In connection with these proceedings, Father was adjudged K.L.’s presumed father. K.L. was placed back with Mother in March 2014.

In June 2014, however, the court sustained another petition on behalf of K.L. based on Mother being asked to leave her residential treatment program due to a violent dispute that ultimately involved law enforcement, as well as domestic violence issues with a male companion (not Father). On January 15, 2015, the court terminated Mother’s reunification services, but in October of 2016, reinstated custody of K.L. to Mother. On June 2, 2016, the court terminated Father’s reunification services, which included drug testing, parenting classes, and individual counseling to “address case issues for criminal conduct and [a]nger [m]anagement.” The record does not indicate why his services were terminated.

In 2014, DCFS also initiated dependency proceedings regarding K.L.’s younger half sibling, C.P. Father does not appear to have been involved in these proceedings. On August 23, 2016, the court reinstated custody of C.P. to Mother and, in May 2018, terminated jurisdiction, leaving the children in Mother’s custody.

B. Petition and Jurisdictional Hearing in Instant Dependency Proceedings

On July 17, 2017, DCFS filed a petition on behalf of K.L. (then age five) and C.P. (then age three) that initiated the dependency proceedings underlying the instant appeals. The petition alleged Mother and her male companion, Marvin E., had a history of engaging in violent altercations in the children’s presence, including an incident in which Marvin E. struck Mother in the face while she was driving a vehicle in which Marvin E. and the children were passengers, Marvin E. exited the vehicle, and Mother hit him with her vehicle while the children were still passengers in it. The petition further alleged Mother had a history of substance abuse, which interfered with her ability to care for the children. The court found a prima facie case that the children came within section 300, ordered them removed from the parents, and ordered DCFS to locate Father to provide him notice of upcoming hearing dates.

The jurisdiction report noted that the court had previously found Father to be K.L.’s presumed father. It further reported that K.L. told social workers she did not know who Father was, and that Marvin E. was her father.

Mother told social workers Father was incarcerated “for an extended period.” DCFS performed a “parent locator search,” which does not search correctional facilities. DCFS also attempted to contact Father by phone and sent notices to an address on West 88th Street in Los Angeles. Based on these unsuccessful efforts, the jurisdictional report stated that “Father . . . has not made himself available for an interview.”

At a July 2017 hearing, the court noted that Father was incarcerated, and Mother indicated she did not know where. Mother’s counsel again informed the court that both fathers had been previously found to be presumed. The court nevertheless found Father to be “the alleged father for . . . [K.L.]” (Capitalization omitted.)

The jurisdictional hearing took place on August 29, 2017. Father did not receive notice of the proceedings and did not appear. The court dismissed the substance abuse related counts and sustained the petition as amended.

At the disposition phase of the hearing, the court ordered the children removed from both parents and ordered reunification services for Mother, but not for Father. Specifically, the court ordered Mother to complete a parenting program, an anger management program, and individual counseling. Further, the court ordered Mother to participate in six consecutive random drug tests. If any tests results were positive, or, if she missed any test dates, then Mother was to participate in substance abuse services including a full substance abuse treatment program with random testing, an aftercare program and a 12-step program. The children were placed in foster care.

The clerk mailed a copy of the court’s August 29, 2017 jurisdiction/disposition order to Father at the Santa Ana jail without indicating a booking number. Neither the record nor the briefing indicates why the court mailed notice to the Santa Ana jail, and nothing in the record suggests DCFS had performed an inmate locator search at this point. The record does not suggest that Father received this notice, nor does DCFS argue that he did.

C. Reunification Period

1. Notices to Father

The record contains no indication that, at any time during the reunification period, DCFS attempted to ascertain at which correctional facility Father was incarcerated and/or to confirm whether, as Mother had repeatedly indicated, he was in fact incarcerated. Instead, throughout the reunification period, DCFS mailed notices of the proceedings to Father at the West 88th Street address, where Father has lived “on and off for years.” Father later told a DCFS caseworker that he had “received certified mail notice” in 2018 while incarcerated in Adelanto, but the record does not reflect that DCFS sent any notices to Father at Adelanto in 2018 (or at any other time).

2. Mother’s Initial Progress in Services

At the six-month review hearing, the court found Mother had made significant progress, but was not in full compliance with the case plan, as the one drug test she had taken was positive for cocaine. She consistently and regularly visited the children. Finding there was a substantial probability that the children could be returned to Mother within the next six months, the court continued services to the 12-month review hearing.

At the 12-month review hearing on August 29, 2018, DCFS reported that Mother had visited consistently with the children, and that during visits, Mother was very involved and would engage both children on age-appropriate topics. DCFS further reported that Mother had missed numerous drug tests during the reporting period, tested positive for cocaine in a May 2018 test, and failed to enroll in a full‑time drug rehabilitation program as required by her case plan. The court found Mother was in partial compliance, that continued jurisdiction was necessary, and that the children should remain removed from Mother. The court continued reunification services for six more months.

3. The Court Terminates Mother’s Reunification Services and Sets a Section 366.26 Hearing

At the 18-month review hearing on April 10, 2019, Mother testified that she had completed anger management and substance abuse programs, and described what she had learned in these programs. DCFS presented evidence that Mother had tested positive for cocaine in August and December 2018, and had missed all drug tests since December 2018. Mother testified that she had used cocaine on one of these occasions because she was “a little overwhelmed” and “couldn’t cope” when a relative died. She testified that the second occasion “was like a hang[ ]out type of thing” but that “now [she] [did not] have time to hang out and all of that.” Mother also testified that she had not used any illicit substances since December 2018, that she was working full time, participating in another substance abuse program as well as counseling, and was committed to maintaining her sobriety so she could regain custody of her children. As to the missed drug tests, Mother explained that she had been unable to test due to her work schedule.

Although Mother was entitled by court order to three weekly visits, she complained that DCFS only facilitated one visit per week. Mother testified to having transportation difficulties in connection with visits, and that DCFS was having difficulty securing monitors. Mother had raised these issues with her social worker, but that they had not been resolved. Despite these difficulties, DCFS reported that Mother remained consistent in visiting the children, and the monitor never detected any indication that Mother was under the influence during visits. Mother’s visits with the children were “adequate,” and she interacted appropriately with the children. The DCFS report acknowledged difficulties with arranging monitors at times, and further reported that, on one occasion when it contacted Mother to arrange a second weekly visit with the children, Mother became angry over logistical issues and hung up the phone. Mother also failed to show up for a visit on March 19, 2019, and accused the children’s caregiver of trying to keep the children from her. The section 366.26 report further noted that K.L. wanted to live with Mother and asked when that would be possible again.

The court indicated that Mother’s “lack of insight” into her substance abuse issues, as evidenced by her excuses for her positive drug tests, inability to identify triggers for using, and numerous missed tests, was of “grave concern.” The court concluded that there was “no legal basis [for] extend[ing] reunification services” for Mother, given her lack of compliance and the length of time Mother had already been receiving services. The court terminated reunification services and set a section 366.26 hearing to determine a permanent plan for the children. The court found it would be in the children’s best interest, however, for Mother to continue to test and to visit the children, and ordered DCFS to provide testing referrals and to facilitate visitation. Although the court expressed “grave[ ] concern[ ] about the inability of [DCFS] . . . to follow court orders as to visitation,” it concluded that DCFS’s efforts did not “fall[ ] below the level of reasonable efforts.” The court instructed the deputy county counsel to speak to the social workers about facilitating visitation.

Father was not discussed at the hearing, except that DCFS noted he had “never appeared in this court. He was not receiving reunification services. I believe this portion is pretty well settled.”

D. Father Receives Notice of the Section 366.26 Hearing and It Is Continued

In an August 2019 report, DCFS indicated it had located Father at a federal penitentiary in Florida and, on May 22, 2019, had sent a certified mail notice of the section 366.26 hearing to him at that location. The court continued the section 366.26 hearing to December 6, 2019.

Around October 2, 2019, DCFS “attempted [again] to . . . notice[ ] [Father] through his [prison] counselor” at the Florida correctional facility, and the counselor reported that Father “refused to sign the [c]ourt notice.”

At the beginning of the section 366.26 hearing on December 6, 2019, Father called to request counsel. He did not participate in the hearing by phone, but counsel specially appeared on his behalf.[3] The court continued the hearing to April 24, 2020, and directed a court call be set up for Father at the next hearing. On December 26, 2019, Father’s counsel requested a copy of the juvenile file.

At all subsequent proceedings, Father was either represented by counsel,[4] or appeared personally (via telephone) with counsel.

E. Mother’s Section 388 Petition

Meanwhile, on December 5, 2019, Mother had filed a section 388 petition seeking the return of the children or, alternatively, an additional period of reunification. Mother’s petition alleged as the requisite changed circumstances that Mother had successfully completed her case plan requirements, including a substance abuse treatment program. The petition further alleged that granting her petition would be in the children’s best interests because there was a strong bond between her and her children, which she had maintained through consistent visits with them. Mother attached several certificates and letters to the petition, including a certificate indicating that on October 2, 2019 she had completed a 10-week substance abuse treatment program and a letter reporting that she was participating in individual counseling. Mother thereafter supplemented her petition with documentation that she had completed a six-month substance abuse treatment program on June 29, 2020, as well as another parenting program and an anger management program.

The court granted a hearing on Mother’s petition, but continued and advanced it due to the COVID-19 pandemic.

F. Mother Continues to Have Difficulty with Visitation and the Children Are Placed Outside of Los Angeles County

At hearings in 2019, 2020, and 2021, Mother raised continuing concerns regarding DCFS’s failure to fully facilitate her court-ordered visitation. The court acknowledged these concerns as valid and issued orders to assist Mother, but nonetheless concluded that DCFS was making reasonable efforts.

Specifically, in August 2019, Mother’s counsel complained that the children’s foster caregiver was not making the children available for more than one weekly visit, despite Mother’s requests for the three ordered by the court. The court admonished that the foster caregiver was legally required to cooperate with its visitation orders.

Soon thereafter, the children were placed in Riverside County with C.P.’s paternal aunt, M.T., who was interested in legal guardianship or adoption of both C.P. and K.L. (The court eventually identified adoption by M.T. as the permanent plan.)

At a December 2019 hearing, Mother’s counsel again complained about visitation opportunities, this time stemming from the children’s placement in Riverside County. Mother lived in Los Angeles, and the long distance from her home to Riverside, combined with the difficulty of relying on public transportation, curtailed her opportunity for more frequent visits. At Mother and the children’s counsel’s request, the court ordered visitation to occur at the halfway point between Los Angeles County and Riverside County.

Reports prepared in anticipation of the final section 366.26 hearing reported that, although Mother had been visiting the children regularly throughout the proceedings, her visits became less frequent after the children were place with M.T. in Riverside County. M.T. complained that Mother had been scheduled for five‑hour weekly visits, but “[M]other [was] not consistent with the visits and it [was] difficult to communicate with her as she [was] disrespectful towards [M.T.] because she wants [M.T.] to drive the children . . . to Los Angeles.” DCFS reported it was attempting to facilitate eight-hour visits on a weekend day, and that K.L. looked forward to visits with Mother.

By January 2021, Mother’s visits had become sporadic. She visited via FaceTime and phone instead, and at times appeared under the influence of alcohol. During one FaceTime visit, K.L. reported feeling afraid when she saw Marvin E., the male companion who had been involved in the domestic violence incident underlying the initial section 300 petition, in the background at Mother’s home. DCFS reported making several attempts to contact Mother to develop a written schedule, but that Mother had not made herself available, and that Mother had not followed up on seeking a new monitor.

F. Father Is Released from Prison and Begins Regular Contact with K.L.

Father was released from prison in March 2020 and contacted K.L. by phone, who stated she was happy to speak with him and that she missed him, despite having told a social worker at the outset of the proceedings that she did not know Father. K.L. reported that she liked speaking with Father on the phone, but did not want to go live with him in Las Vegas because it was “too far” from what she considered her home with C.P. and M.T., whom she called “auntie.” K.L. was especially distraught at the idea of being separated from C.P. K.L. indicated that if she could not live with Mother, she wanted to remain with M.T. and her brother.

Around July 2020, Father visited K.L. in person for the first time after his release, and M.T. reported the visit “was great.” Father also called her daily from Las Vegas, where he reported he was working on his welding certification, drug testing weekly and participating in counseling. His in-person visits were inconsistent, which he attributed to the distance and financial challenges. He reported that “every time he is in [California] he visits, brings gifts and takes [K.L.] out to eat.”

On November 13, 2020, the social worker asked Father if he was aware of the previous order and the termination of reunification services. In response, Father said that he would follow up with a parenting course and submit updates. Father “discussed wanting custody” with DCFS, and indicated he was “100% involved.” According to M.T., Father “was in the picture before going to jail and was adamant about getting [K.L.] bef[o]re.” Father told DCFS he had attempted to be in K.L.’s life since her birth, but that his involvement had been limited, in part because Mother had sabotaged these efforts, and in part because he had been in and out of prison for most of her childhood. He further asserted that he had a “connection” with K.L. and that he had been in regular phone contact with her throughout his most recent incarceration.

G. Father’s Section 388 Petition

On January 11, 2021, Father filed a section 388 petition, seeking to vacate all dispositional findings and orders and hold a new disposition hearing, because Father had not received notice thereof and DCFS had failed to perform a reasonable due diligence inquiry to determine where he could be served notice. The petition further requested the court to correctly find that Father was a presumed father, and that he receive reunification services. The petition alleged these requests were in K.L.’s best interest because Father was no longer incarcerated, spoke to K.L. daily over the phone, and wanted to have a relationship with K.L. It further alleged that the notice deficiencies had denied Father due process, and that it was generally in K.L.’s best interest that Father be involved in the dispositional hearing.

H. Hearing on Section 388 Petitions

The court held combined section 388 and section 366.26 hearings over the course of several days in May 2021, starting on May 10 and ending on May 26. Through “Webex” or telephone, both parents and/or their attorneys appeared in court.

The court heard Mother’s section 388 petition first. Mother testified about her employment, housing and her participation in services. She also testified about her communication and visitation problems, blaming the social workers and M.T. Mother’s counsel argued that the children were still bonded to Mother, and they wanted to return home. Although the children’s counsel opposed granting Mother’s petition, K.L.’s attorney confirmed that K.L. had always wanted to return home to Mother.

In a last minute information dated May 24, 2021 and submitted in the midst of the hearings on Mother’s petition, DCFS reported that Mother had tested positive for cocaine on May 4, 2021 and May 11, 2021. Mother denied using the drug and said she was “heavy on energy drinks.” The last minute information also reported that there were continuing difficulties in DCFS’s efforts to provide Mother with visitation after M.T. indicated she could not transport the children to visits at the time a monitor was available, as doing so would require her to drive immediately after her night shift and thus without any sleep. DCFS again attempted to arrange visitation for Mother but encountered transportation and availability issues with Mother’s monitor and M.T.

The court denied Mother’s petition based largely on her most recent positive drug tests. The court concluded this not only prevented Mother from making the requisite showing to support her petition, but also called into question her credibility.

Immediately after the court’s denial of the section 388 petition, Mother requested that the court order a bonding study, but the court denied the request.

At the same hearing, the court ruled on Father’s section 388 petition. Father did not testify or offer additional evidence at the hearing. Although the court granted Father presumed father status, it denied the petition on the basis that, “whether or not notice may have way back in 2017 been incorrect, since then it’s been cured. He’s—it’s not in the best interest to go all the way back to disposition as to [K.L.], and it is a two-prong test.”

I. Parents’ Parental Rights Are Terminated at the Conclusion of the Section 366.26 Hearing

At the section 366.26 hearing on May 26, 2021, DCFS submitted the same documentary evidence as was admitted at the section 388 hearings. The parents did not submit additional evidence. Counsel for Mother and counsel for Father objected to the termination of parental rights, and counsel for Mother argued Mother satisfied the parental-benefit exception to adoption. Counsel for Mother further argued that DCFS’s “failure to facilitate visits, and . . . the current caretaker’s . . . refusal to cooperate with Mother’s visits . . . [¶] . . . deprived [Mother] of her opportunity to even meet the standard for [the parental‑relationship] exception to adoptive placement.”

The court found that the parents had not maintained regular visitation or established a bond with K.L. or C.P., the children were adoptable, and no exception to adoption applied. The court chose adoption as the most permanent plan for the children and terminated Mother’s and Father’s parental rights. The court acknowledged Mother’s difficulties with visitation, but ultimately found her argument unpersuasive. Specifically, in rejecting Mother’s arguments regarding visitation difficulties and the parent‑child relationship exception, the court stated:[5] “Reasonable efforts [by DCFS] is not an appropriate analysis at this time. That was during the three years that Mother had an opportunity to reunite . . . perhaps it might be a persuasive argument except . . . [d]ays ago Mother tested positive for cocaine at 1,850 nanograms. And on May 11, it went down to 764 nanograms. The court couldn’t think about returning home with those situations, with those test results . . . . So the choice is today do I wait for Mother’s who’s had three years, or do I concur with minor’s counsel, indicate these children are entitled to permanence? Well, the law is very clear on which one I should do. . . . There is no exception to adoption. I don’t see that they have a parental role. Mother and Father don’t have a parental role; therefore, with the very difficult decision—and the court understands it may be painful for these children—the court terminates . . . parental rights.” Before doing so, the court also found “t would be detrimental to return these children back to the care, custody, [or] control of the parents.”

A. Mother’s Appeal[i]

Mother challenges the court’s order freeing the children for adoption and terminating her parental rights. Mother also challenges the court’s refusal to order a bonding study to support her claim that the parental-benefit exception to adoption applied. She does not challenge the denial of her section 388 petition.

1. The Court Relied on Improper Criteria in Analyzing the Parental-Benefit Exception

During a section 366.26 hearing, the court must choose one of three permanent plans: adoption, guardianship or long-term foster care, with adoption being the preferred plan. (See § 366.26, subd. (b); In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The juvenile court must chose adoption as the permanent plan and terminate parental rights unless one of several specifically enumerated exceptions applies, including the so-called parental‑benefit exception. That exception applies when “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subds. (c)(1)(B) & (c)(1)(B)(i).) The elements a parent must prove by a preponderance of the evidence in order to establish the parental-benefit exception are thus: “(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.” (Caden C., supra, 11 Cal.5th at p. 631, italics omitted.) If the exception applies, parental rights may not be terminated, the court instead adopts a plan of guardianship or long-term foster care (§ 366.26, subd. (c)(4)(A) & (B)), and orders visitation with the parents “unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).)

The third element of the parental-benefit exception is satisfied “[w]hen the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss.” (Caden C., supra, 11 Cal.5th at pp. 633–634.) Thus, Mother bore the burden of establishing not only that the children have “a substantial, positive, emotional attachment to [her]— the kind of attachment implying that the child[ren] would benefit from continuing the relationship” (id. at p. 636), but also that the relationship is so beneficial to the children that, “even considering the benefits of a new adoptive home, termination [of the relationship] would ‘harm[ ]’ the child.” (Id. at p. 633, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) In balancing these competing considerations, courts take into account numerous factors, including: (1) the age of the child; (2) the portion of the child’s life spent in parental custody; (3) the positive or negative effects of interaction between parent and child; and (4) the child’s particular needs. (Autumn H., supra, at pp. 575−576.) In considering the third element, “courts need to determine . . . 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.” (Caden C., supra, at p. 633.)

The California Supreme Court in Caden C. recently clarified that certain factors related to the suitability of a parent to be a custodial parent are “improper considerations in deciding whether termination of parental rights would be detrimental to a child.” (In re D.M. (2021) 71 Cal.App.5th 261, 269 (D.M.), italics omitted.) A court should not compare a “parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s)” in assessing net detriment under the exception (Caden C., supra, 11 Cal.5th at p. 634), because “[t]he exception preserves the child’s right to the relationship even when the child cannot safely live with that parent. What it does not allow is a judgment about the parent’s problems to deprive a child of the chance to continue a substantial, positive relationship with the parent.” (Id. at p. 643.) For similar reasons, a parent’s “continued struggles” with the issues that led to dependency do not automatically bar the parental‑benefit exception (id. at p. 637), although they may still be “ ‘relevant . . .’ because [they] may be probative of whether interaction between parent and child has a negative effect on the child.” (D.M., supra, 71 Cal.App.5th at p. 270, quoting Caden C., supra, at p. 637.)

Mother contends that the court reversibly erred because it analyzed Mother’s claim using such improper factors. Mother points out that, in rejecting her arguments regarding the exception, the court repeatedly stated it could not return the children to Mother. We agree that the court’s stated reasoning demonstrates that the court determined the applicability of the exception based in part on its assessment of Mother’s ability to be a custodial parent, and thus that “it considered factors which Caden C. has explained are inappropriate in determining whether the parental‑benefit exception applies.” (D.M., supra, 71 Cal.App.5th at p. 271; id. at p. 270 [court applied incorrect analysis when it concluded exception did not apply because the father failed to attend “dental or medical appointments” and “[h]as not risen to the level of a parent”]; see Caden C., supra, 11 Cal.5th at pp. 632–633.) In the context of its comments about returning the children to Mother, the court also pointed to Mother’s recent positive drug tests. The record is not clear whether the court properly “examine[d] how [Mother’s] continued substance abuse impacted the nature of the parent-child relationship” as required by Caden C., as opposed to considering whether these continuing substance issues impeded Mother’s ability to care for her children. (In re B.D. (2021) 66 Cal.App.5th 1218, 1228; id. at p. 1226 [court applied incorrect analysis by noting parent “ ‘must show that they occupy a parental role,’ ” which “ ‘typically arises from day-to-day interactions’ ” and relying on parents’ untreated substance abuse without examining how the substance abuse impacted the parent-child relationship]; see Caden C., supra, 11 Cal.5th at p. 638.)

Although we generally review a court’s ruling, not its reasoning, a “disposition that rests on an error of law constitutes an abuse of discretion.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159; see Caden C., supra, 11 Cal.5th at pp. 639−640 [court’s findings as to the third element of the parental-benefit exception and overall applicability of the exception reviewed for an abuse of discretion].) Nor can we say that such error was harmless, because “[w]e cannot know how the court would have exercised its discretion if it had the benefit of the Caden C. analysis” (D.M., supra, 71 Cal.App.5th at p. 271), which was published the day after the section 366.26 hearing concluded. Therefore, we must reverse the termination of Mother’s parental rights and remand for the limited purpose of permitting the juvenile court the opportunity to consider, in the first instance, Mother’s parental-benefit exception request under the appropriate legal framework. (See ibid.; In re L.S. (2014) 230 Cal.App.4th 1183, 1194 [reversing denial of section 388 petition based on erroneous understanding of burden of proof].)

2. Neither the Alleged Inadequacy of Visitation Opportunities Nor the Denial of a Bonding Study Prevented Mother from Establishing the Parental‑Benefit Exception

Although we express no opinion as to whether, upon remand, the court should conclude Mother has made the necessary showing to satisfy the parental-benefit exception, to the extent it concludes she has not, we anticipate that Mother may raise the same arguments she does in this appeal regarding her difficulties with visitation and the court’s denial of a bonding study. Therefore, in the interest of judicial efficiency, we consider both issues and conclude that they would not require reversal.

As to the visitation issue, we note that the difficulties Mother encountered did not prevent her from having visitation with her children entirely. This is a meaningful point of distinction between this case and the key cases on which Mother relies. (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [court ordered visitation “ ‘as can be arranged,’ ” resulting in no visitation for parent]; In re David D. (1994) 28 Cal.App.4th 941, 954 [“subsequent actions of the court precluded any visitation opportunities”].) Moreover, the vast majority of the visitation difficulties Mother identifies did not start until after the over two-year reunification period concluded. “nder the dependency scheme described by the [California] Supreme Court . . . [A parent] [is] required to muster her evidence [of the parental-benefit exception] before the termination of reunification services. The kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception . . . does not arise in the short period between the termination of services and the section 366.26 hearing.” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196 (Richard C.); Autumn H., supra, 27 Cal.App.4th at p. 575 [“[a]t the time the court [terminates reunification services], the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent”].) This is consistent with the focus of the proceedings in the post-reunification period shifting away from preserving and repairing the parent-child relationship and toward “the child’s interest in permanency and stability.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339−1340 (Lorenzo C.); see id. at p. 1339 [“the preservation of a [child’s] family ties . . . is of critical importance only” before reunification services are terminated].) Of course, during the time between the termination of services and the termination of her parental rights, Mother continued to have a substantive due process interest in visitation with her children, and the court was obligated “to permit [her] . . . to visit the child[ren] pending the [section 366.26] hearing unless it [found] that visitation would be detrimental to the child[ren].” (§ 366.21, subd. (h).) But neither the court nor DCFS was obligated to assure such visitation occurred, and visits during this period are not intended to nurture and/or repair the parent-child relationship in the way visits during the reunification period are. (See Richard C., supra, 68 Cal.App.4th at p. 1196.)

[u]NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

CRANDALL, J.*

* Judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

[2] Mother appealed the dispositional order in that case, which was affirmed on October 24, 2013, in case No. B247333.

[3] The record does not indicate why counsel was specially appearing for Father at this and several subsequent hearings. Presumably, this was the result of the court’s initial finding that Father had only alleged Father status, a finding it later corrected. (See fn. 4, post.)

[4] Until February 2021, counsel specially appeared for Father at proceedings. On February 26, 2021—after Father challenged the court’s erroneous finding that he was an alleged, rather than a presumed, father, and DCFS did not object to Father receiving presumed father status—the court appointed counsel for Father.

[5] Because Mother’s arguments on appeal rely heavily on the juvenile court’s approach to analyzing Mother’s arguments, we describe the court’s reasoning in detail.

[6] This time frame assumes Father did not actually receive notices of the dependency proceedings in 2018, as he initially told DCFS he had.

[7] Ansley, supra, 185 Cal.App.3d 477, on which Father relies, is distinguishable in this respect. In that case, the parent was not provided notice of the dependency proceedings until after his parental rights had been terminated. Thus, the parent was entirely denied an opportunity to be heard in the proceedings.

[8] Father did indicate in a statement to DCFS that he called K.L. from prison, but this unsworn statement is also contradicted by K.L.’s statements about her relationship with Father. In reviewing for substantial evidence, we resolve all conflicts in the evidence in favor of affirming. M.T. vaguely indicated Father “was in the picture before going to jail and was adamant about getting [K.L.] bef[o]re.” But this does not speak to Father’s efforts to provide or maintain a relationship with K.L. since at least mid‑2016 when he was most recently incarcerated.

* Judge of the San Luis Obispo Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.