In re A.H. CA3 ( 2022 )

Filed 5/23/22 In re A.H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
In re A.H., a Person Coming Under the Juvenile Court C094824
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STKJVDP20190000345)
Plaintiff and Respondent,
v.
M.H.,
Defendant and Appellant.
Mother appeals the juvenile court’s order terminating her parental rights and
freeing the minor A.H. for adoption. (Welf. & Inst. Code, § 366.26.)1 She contends the
juvenile court erred in: (1) failing to conduct the assessment required by In re Caden C.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
(2021) 11 Cal.5th 614 (Caden C.), and (2) failing to make any findings on the
applicability of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We
disagree for the reasons explained herein and will affirm the juvenile court’s orders.
I. BACKGROUND
Mother tested positive for alcohol and amphetamines at the premature birth of
A.H. in August 2019 and admitted to drinking alcohol and using diet pills during her
pregnancy, resulting in a referral to the San Joaquin County Human Services Agency
(Agency). A.H. suffered from multiple birth defects and was suspected to have fetal
alcohol syndrome and fetal alcohol effect.2 He was placed in a neonatal intensive care
unit, where mother visited him, but she was generally uncooperative with the Agency.
Nonetheless, mother denied Native American ancestry and completed an ICWA-020
form to that effect. L.H., who was separated from mother, denied that he was A.H.’s
father, told the Agency he had no Native American ancestry, and completed two ICWA-
020 forms to that effect.3 L.H. also signed a safety plan agreeing to seek a temporary
emergency order for full custody of A.H.’s five-year-old sibling. The Agency obtained a
protective custody order for A.H., and he stayed in the hospital for 42 days before going
directly into foster care.
On October 24, 2019, mother submitted on jurisdiction, and the juvenile court
found there was a factual basis for the submission and that the Agency’s allegations,
including that A.H. fell under section 300, subdivision (b) due to mother’s substance
abuse, were true.
The Agency’s December 2019 disposition report reflected that A.H. had been
diagnosed with muscular dystrophy, arthrogryposis, and required further assessment for
2 Testing confirmed A.H. suffered from muscular dystrophy and tested positive for
amphetamines at birth. He also suffered from wrist abnormalities.
3 These forms were filed with the court on September 6, 2019, and November 14, 2019.
2
fetal alcohol syndrome. Although only three months old, he was seeing a neurologist and
an orthopedic specialist. He was also scheduled to start physical therapy and had been
prescribed arm braces. Mother was in denial regarding the seriousness of A.H.’s health
problems, but visited with him two times weekly at her residential treatment program.
Mother submitted on the disposition report, but requested more visitation and to
breastfeed A.H. if approved by the doctor. The juvenile court found A.H. a dependent,
incorporated the Agency’s findings and orders, granted the Agency discretion to increase
visitation, and allowed breastfeeding providing mother stayed in her program and tested
negative.
The six-month status report (§ 366.21, subd. (e)) reflected in pertinent part that
mother had participated in services with varying degrees of success and that she had
resumed visitation with A.H. in virtual form in April 2021, calling three times a week for
virtual visits lasting between 30 minutes to one hour. Prior to the shutdown of in-person
visitation, mother participated in 13 of 26 scheduled visits.4 A.H. was developmentally
delayed, had seen a cardiac specialist and a pediatric surgeon, and was also seeing an
occupational therapist and a physical therapist. His diagnosed conditions included: fetal
alcohol syndrome, contractures of both wrists and hands, an atrial septal defect, stenosis
of the pulmonary artery, and muscular dystrophy. The Agency recommended the
continuation of reunification services, but also relayed that A.H. had been concurrently
determined to be adoptable, despite his potentially lifelong, chronic conditions. At the
July 14, 2020 hearing, the court continued reunification services, authorized discretion
for community visitation, and adopted the other recommendations of the Agency.
The Agency’s September 2020 status review report (§ 366.21, subd. (f)) reflected
that the home mother shared with her mother (A.P.) had passed inspection in August and
4 Mother was blameless for five of these cancellations, but no called/no showed for six
visits and was sick for another two.
3
that unsupervised community visits for three hours twice weekly had begun. A.H. was
adjusting well to his new placement and routine. Mother attended A.H.’s successful
surgery placing tubes in his ears.
At the September 22, 2020 hearing, mother submitted on the September 2020
status review report, and the juvenile court adopted the proposed findings and orders,
including that mother would continue to receive reunification services and that the
Agency had discretion to begin overnight visits. Notably, these findings also included
that A.H. was not an Indian child within the meaning of the ICWA.
The Agency’s March 2021 status review report (§ 366.22) recommended the
termination of reunification services. While mother initially made progress towards
reunification, she relapsed in November 2020, resulting in her termination from the drug
court program. Nonetheless, mother attended at least some of A.H.’s medical
appointments5 and was visiting with A.H. two times weekly for four hours each visit at
A.P.’s home. A.H.’s caregiver reported that he did well after visits. Further, mother had
moved out of A.P.’s home, which was pending approval for placement of A.H. A.P. had
“attended most if not all of [A.H.]’s medical appointments” during the seven months or
so that A.H. had been in his current placement.
At the March 16, 2021 hearing, the juvenile court awarded discretion to the
Agency (in consultation with A.H.’s doctor and attorney) to place A.H. with A.P., who
assured the court that she had attended all of the minor’s medical appointments and was
prepared to retire so that she could care for him full time. The termination of
reunification services was set for a contested hearing on April 19, 2021.
5 A.H.’s medical struggles continued as he was suffering from developmental delays,
feeding problems, and multiple congenital abnormalities for which he was seeing a
physical therapist, an occupational therapist, a neurologist, and a cardiologist, in addition
to his pediatrician.
4
Mother failed to appear at the contested hearing, and the juvenile court denied her
counsel’s request for a continuance. The court then adopted the proposed findings and
orders of the Agency. The court also reduced mother’s visits to once weekly, and the
matter was set for a termination of parental rights and selection and implementation of
permanency plan hearing on August 4, 2021, which mother ultimately contested. In the
interim, A.H. was placed with A.P. in May 2021.
The August 2021 selection and implementation report (§ 366.26) recommended
the termination of parental rights and release of A.H. for adoption. A.H.’s maternal
grandparents (A.P. and her husband) were committed to adopting him and keeping him
within the family, but were against a “post adoption agreement.” A.P. described A.H. as
“ ‘my little world’ ” and expressed her love for him and desire to protect him. Prior to his
placement in A.P.’s home, A.P. had accompanied mother to supervised visits early on in
the dependency case and later supervised visits with mother in A.P.’s own home.
The report further reflected that following the termination of reunification
services, mother was arrested on July 2, 2021, for felony possession of a controlled
substance while armed with a loaded handgun that was not registered to her and
possession of a controlled substance for sale. This corresponded with the last day A.P.
reported that mother visited A.H. Nonetheless, the report noted that mother was
appropriate with A.H. at visits, that A.H. enjoyed those visits, and that mother visited
consistently. Ultimately, the report concluded that visits with mother “are appropriate
and beneficial for [A.H.] however, [A.H.] is needing a full-time parent who is able to
attend to his needs and protect him. The mother’s continued challenges places him at risk
for harm and danger.”
At the contested section 366.26 hearing, the Agency presented the selection and
implementation report as evidence. Mother then testified to visiting A.H. for four hours
each Friday at her mother’s home. Mother reported that A.H was happy to see her and
that they engaged in various activities together such as her preparing his food and feeding
5
him, as well as her helping him to do exercises to get stronger given his difficulties.
Mother described their relationship as “beautiful” and relayed that she enjoyed making
him laugh. Mother felt they were bonded because she loved him, relaying: “I try to spend
as much time [with him] as I can. Given the opportunity, I would love to be the one to
give him his baby baths and take him to his appointments, nurture him.” Mother
disagreed with the Agency’s recommendation to terminate her parental rights, stating: “I
love my child, and I know I made a mistake. And I am working every day to be a better
person for myself and to be a better mom. And he’s just two. I would love to be in his
life.” None of the parties to the hearing cross-examined mother or offered any rebuttal
evidence.
Thereafter, the Agency requested the juvenile court follow the recommendation to
terminate parental rights and free A.H. for adoption, arguing mother had not met her
burden of establishing an exception thereto. Specifically, the Agency highlighted that,
“There’s been no information of any kind of bond between the mother and the minor that
would be extremely detrimental to that bond if parental rights were terminated.” A.H.’s
counsel agreed, highlighting that he had been out of the mother’s care since the start of
the case such that the type of bond that would be needed had not formed, and given these
circumstances, A.H.’s best interests would be served by termination and freeing him for
adoption. Mother opposed termination, arguing she was bonded with A.H., had
consistently and appropriately visited him, and that he enjoyed and benefitted from those
visits.
The court then ruled, stating: “When we get to this stage, the burden shifts to the
parent to show that one of the exceptions applies, and I really don’t have enough
evidence to find that application of an exception, nor has there been a showing that the
severance would be detrimental to the child. So the Court is in the position where it has
very little choice. [¶] I’m going to proceed with the recommendation. Court finds notice
has been given as required by law. The Court has read and considered the [section
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366].26 assessment report. Court previously made a finding denying or terminating
reunification services to the parents. Court finds by clear and convincing evidence that
it’s likely the child will be adopted. It is in the minor’s best interest to have parental
rights terminated. Termination of parental rights is not detrimental to the minor. [¶]
None of the exceptions pursuant to . . . [s]ection 366.26[, subdivision ](c)(1) exist,
therefore, the parental rights of the mother, [M.H.,] . . . are hereby terminated.”
Following this ruling, mother’s counsel requested continued visitation and/or a
goodbye visit, prompting the social worker to say, “The grandmother [A.P.] reports that
the visits are appropriate and beneficial to [A.H.], and she’s in agreement with ongoing
weekly visits with him at the current arrangements.” The court authorized continued
visits, but then noted once adoption is finalized it would be up to the “new parent.”
Mother timely appealed.
II. DISCUSSION
A. The Parental Benefit Exception
Mother challenges the juvenile court’s ruling that she had not presented sufficient
evidence to establish that the parental benefit exception to adoption applied to A.H.’s
case. She argues that because the court failed to conduct the assessment required by
Caden C., supra, 11 Cal.5th 614, the case must be reversed and remanded for further
proceedings. As we shall explain, mother has failed to establish the juvenile court erred.
1. Background
At a section 366.26 hearing, when the juvenile court finds by clear and convincing
evidence the child is adoptable, it is generally required to terminate parental rights and
order the child be placed for adoption unless a statutory exception applies. (§ 366.26,
subd. (c)(1).) One such exception is the beneficial parent-child relationship exception,
which 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
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the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) A parent claiming an exception to
adoption has the burden of proof to establish by a preponderance of evidence that the
exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
To establish the beneficial parent-child relationship exception, the parent must
show by a preponderance of the evidence three elements: “(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; see id. at p. 636.) In assessing whether termination would be
detrimental, the juvenile court “must decide whether the harm from severing the child’s
relationship with the parent outweighs the benefit to the child of placement in a new
adoptive home.” (Id. at p. 632.) When the parent meets this burden, the exception
applies such that it would not be in the child’s best interest to terminate parental rights,
and the court selects a permanent plan other than adoption. (Id. at pp. 636-637.)
The first element of the exception asks the “straightforward” question of whether
the parent visited consistently, considering the extent permitted by court orders. (Caden
C., supra, 11 Cal.5th at p. 632.) The focus is on the best interest of the child as opposed
to punishing or rewarding parents for good behavior in maintaining contact. (Ibid.)
The second element asks “whether ‘the child would benefit from continuing the
relationship.’ ” (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child relationship
“may be shaped by a slew of 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.’ ” (Ibid., quoting In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court’s focus should again be
on the child, and it “must remain mindful that rarely do ‘[p]arent-child relationships’
conform to an entirely consistent pattern.” (Caden C., supra, at p. 632.) “[T]he parent
must show that the child has a substantial, positive, emotional attachment to the parent—
8
the kind of attachment implying that the child would benefit from continuing the
relationship.” (Id. at p. 636.)
When considering the third element, courts must 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, 11
Cal.5th at p. 633.) The court is guided by the child’s best interest in a “specific way: it
decides whether the harm of severing the relationship outweighs ‘the security and the
sense of belonging a new family would confer.’ ” (Ibid.) “ ‘If severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
attachment such that,’ even considering the benefits of a new adoptive home, termination
would ‘harm[ ]’ the child, the court should not terminate parental rights.” (Ibid.) “When
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, termination would be ‘detrimental to the child
due to’ the child’s beneficial relationship with a parent.” (Id. at pp. 633-634.) “In many
cases, ‘the strength and quality of the natural parent/child relationship’ will substantially
determine how detrimental it would be to lose that relationship, which must be weighed
against the benefits of a new adoptive home.” (Id. at p. 634.)
We review a juvenile court’s ruling on the application of the beneficial parent-
child relationship exception using a “hybrid” standard. (Caden C., supra, 11 Cal.5th at
p. 641.) The substantial evidence standard applies to the first two elements of regular
visitation and existence of a beneficial relationship. (Id. at pp. 639-640.) As a reviewing
court, we do “ ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts’ ” and will uphold the juvenile court’s determinations even when
substantial evidence to the contrary also exists. (Id. at p. 640.) The juvenile court’s
decision as to the third element—whether termination of parental rights would be
detrimental to the child—is reviewed for an abuse of discretion. (Ibid.) “A court abuses
9
its discretion only when ‘ “ ‘the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (Id. at p. 641.)
2. Application
In the present case, the juvenile court ruled from the bench that mother had not
presented sufficient evidence to establish the “application of an exception, nor has there
been a showing that the severance would be detrimental to the child.” As such, it appears
the court found mother’s evidence of two, if not all three, of the required elements to
establish the parental benefit exception were lacking. (Caden C., supra, 11 Cal.5th at pp.
631, 636.) Mother contends the juvenile court erred by not outwardly engaging in the
analysis required by Caden C. and that a review of the evidence offered in support of the
parental benefit exception shows that she had met her burden to establish the exception.
We disagree.
At the outset, we highlight that Caden C. was decided May 27, 2021,
approximately three and a half months prior to the juvenile court’s section 366.26 ruling
in this case. (Caden C., supra, 11 Cal.5th 614.) Accordingly, we presume, in the
absence of any evidence to the contrary, that the court was aware of and complied with
the law, including Caden C. (See, e.g., People v. Jones (2017) 3 Cal.5th 583, 616 [“ ‘In
the absence of evidence to the contrary, we presume that the court “knows and applies the
correct statutory and case law” ’ ”].)6
Nor do we agree with mother’s suggestion that the juvenile court was required to
make individual findings related to the elements of the parental benefit exception. While
6 Because there is no indication in the record that the juvenile court’s analysis may have
run afoul of Caden C.’s guidance, mother’s reliance on In re D.M. (2021) 71 Cal.App.5th
261, In re B.D. (2021) 66 Cal.App.5th 1218, and In re D.P. (2022) 76 Cal.App.5th 153 is
unavailing. (See In re A.L. (2022) 73 Cal.App.5th 1131, 1160-1161, fn. 14 [no need to
remand for further consideration following Caden. C. where there was no indication court
considered factors deemed inappropriate thereby].)
10
this is required where the court finds the exception applicable (§ 366.26, subd. (c)(1)(D)),
mother has not provided authority requiring that the juvenile court make these findings
when denying the application of the parental benefit exception. (See In re A.L., supra, 73
Cal.App.5th at p. 1156 [rejecting assertion that prior to finding the exception
inapplicable, “specific findings relative to [the court’s] conclusions regarding any or all
of the three elements of the [parental-benefit] exception” were required].)
Finally, concerning the court’s insufficiency of evidence determination, we concur
with the juvenile court that mother had not offered sufficient evidence to establish the
applicability of the exception. On the first element, we note that there is evidence that
mother visited A.H., however, it is questionable whether that visitation should properly
be characterized as regular. Following disposition, mother had a period where she
missed eight of the 26 scheduled visits, and at the end of the case, it appears that mother
may have missed more of her then weekly visits because of her arrest on July 2, 2021.
Nonetheless, we acknowledge that the section 366.26 report characterized mother’s
visitation as “consistent,” and so there is some evidence from which the court could have
concluded mother regularly visited.7
Assuming arguendo that mother provided sufficient evidence to meet the first
element, it is not clear that mother established the kind of bond required for the second
element. There is ample evidence of mother’s bond with and commitment to A.H., as she
loved him very much and attended as many of A.H.’s medical appointments and
surgeries as possible. However, that is not the pertinent inquiry. Rather, the juvenile
7 Mother’s argument that she was “the most consistent parental figure in [A.H.]’s life”
ignores that she has never had custody of A.H. and thus has never cared for him and met
his daily needs. Moreover, any suggestion that A.P. was new to A.H. by virtue of the
relatively short length of his placement in her home is belied by the record, which shows
that A.P. supervised visitation with mother and attended all of A.H.’s medical
appointments in the seven plus months preceding his placement with A.P.
11
court was tasked with evaluating whether A.H. was bonded to mother to the extent
required for the exception to apply. (Caden C., supra, 11 Cal.5th at p. 632.)
Here, A.H., who was approximately two years old, had never been in mother’s
care and went straight from the hospital into foster care.8 Nonetheless, we acknowledge
that A.H. appeared to enjoy visiting with mother, would laugh with her, and that A.H.’s
caregivers had indicated to the Agency that A.H. enjoyed his visits with mother, that the
visits were beneficial to A.H., and that he did well following these visits.9 However,
because there was no bonding study conducted in this case, and given A.H.’s tender age,
it is difficult to determine the strength and depth of his bond to mother. (See Caden C.,
supra, 11 Cal.5th at pp. 632-633, fn. 4 [noting the benefit of expert testimony to inform
the bonding inquiry]; id. at p. 636 [requiring “the parent must show that the child has a
substantial, positive, emotional attachment to the parent” (italics added)].)
We do not agree with mother that A.H.’s doing well following visits necessarily
means he was happy because of and “gained emotional stability from their visits.” It
simply shows he was not harmed by them. Nor does mother’s testimony on this element
aid her. When asked by her attorney why they were bonded, mother failed to actually
discuss A.H.’s bond to her, and rather, focused on her love for him and what she would
like to do for him.
8 This fact alone distinguishes this matter from In re E.T. (2018) 31 Cal.App.5th 68wherein the mother had cared for her twins for nearly half of their lives, including a
period of reunification with maintenance services. (Id. at pp. 73-75 [twins had lived with
mother 22 months and the prospective adoptive parents 24 months].)
9 Mother makes much of the social worker’s statement following the termination of
mother’s parental rights that A.P. had reported A.H.’s visits with mother were appropriate
and beneficial. However, this information is duplicative of the section 366.26 report,
wherein the social worker generally acknowledged that mother’s visits were “appropriate
and beneficial.” Accordingly, the juvenile court already had this information before it
when it made its determination on the inapplicability of the parental benefit exception.
12
We acknowledge that the parent-child relationship in this context need not
conform to a particular pattern (Caden C., supra, 11 Cal.5th at p. 632); however, it was
incumbent upon mother to establish that her relationship with A.H. rose above that of a
friendly visitor in the child’s eyes. (See In re B.D., supra, 66 Cal.App.5th at p. 1230 [“an
emotional attachment is one where the child views the parent as more than a mere friend
or playmate”].) Accordingly, while there was some evidence A.H. was bonded to
mother, she has not established that the court erred in its implicit conclusion that the
evidence was insufficient to establish the sort of bond required to meet the second
element of the exception.
Moreover, even if we accepted that mother had established the second element,
mother’s appeal ultimately fails because the record is utterly devoid of any information
showing that the bond between mother and A.H. was so strong that it would outweigh the
“ ‘the security and the sense of belonging a new family would confer.’ ” (Caden C.,
supra, 11 Cal.5th at p. 633.) Mother presented no evidence concerning the loss that
would be suffered by A.H. should mother’s parental rights be terminated and their visits
cease.10 Accordingly, there is no evidence from which the court could have concluded
that the loss of A.H.’s relationship with mother outweighed the benefits of adoption to
this then two-year-old child by his adoring grandparents who were prepared to provide
him stability and permanency, despite his many health needs. As such, mother has not
demonstrated the trial court erred in determining she had presented insufficient evidence
to establish the parental benefit exception to adoption.
10 When asked whether she agreed with the Agency’s recommendation to terminate her
parental rights, mother explained that she “strongly disagree[d],” stating: “I love my
child, and I know I made a mistake. And I am working every day to be a better person
for myself and to be a better mom. And he’s just two. I would love to be in his life.”
13
B. Compliance with the ICWA
Mother complains the juvenile court erred in failing to make any findings on the
applicability of the ICWA. In response, the Agency contends the juvenile court’s failure
to make these findings was harmless. We disagree with both parties.
The juvenile court incorporated the Agency’s proposed ICWA finding at the
September 22, 2020 hearing. These findings stated: “The child is not an Indian child
within the meaning of the Indian Child Welfare Act, and that notice of the proceedings
has been given as required by law. Proof of such notice has been filed with the court.”
The juvenile court is presumed to have made this decision anew at the selection and
implementation permanency planning hearing. (In re Isaiah W. (2016) 1 Cal.5th 1, 6, 9,
14-15.) Accordingly, mother has not shown the juvenile court failed to comply with the
ICWA.
III. DISPOSITION
The orders of the juvenile court are affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
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