In re A.M. CA2/8 ( 2022 )

Filed 8/4/22 In re A.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.M., a Person Coming B316350
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP02631A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.D. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant R.D.
Caitlin Christian, under appointment by the Court of
Appeal, for Defendant and Appellant S.M.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
A father and mother appeal the juvenile court’s order
terminating their parental rights over their young daughter. We
affirm. Undesignated statutory references are to the Welfare and
Institutions Code.
I
In April 2019, when the child was five months old, the Los
Angeles County Department of Children and Family Services
filed a petition alleging the child was at risk of harm in her
parents’ care due to their unresolved mental and emotional
problems. The mother had faced similar allegations in an earlier
dependency case and had lost parental rights to her older
daughter in 2011.
Someone in the child’s pediatrician’s office made the child
welfare referral. The office was concerned the child may have
serious medical conditions (including spina bifida and cerebral
palsy) but the mother was in denial, was not following up on
medical referrals, and was not feeding and caring for the child
properly.
The parents initially refused to bring the child to be
detained. Eventually, the Department placed the child with
foster mother T.N. after two other foster placements fell through.
The juvenile court ordered monitored visitation and
sustained the petition. The court later ordered reunification
services for the father but not the mother.
Visitation was generally twice a week. This changed
briefly to daily video and phone visits at the outset of the COVID-
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19 pandemic, but in-person visits resumed in early June 2020.
Generally, during these visits, the father was more affectionate
and attentive to the child than the mother, who appeared more
interested in photographing and recording the child and who
would bring items that were choking hazards. One report noted
the child responded to the father with cooing and smiled often.
Several reports noted the father deferred to and depended on the
mother during these visits.
In February 2020, an “Early Intervention Infant Teacher”
reported the relationship between the child and her parents was
“very loving” but concluded the parents lacked the skills and
competence to parent properly and were unreceptive to support
and even combative.
The child received Regional Center services, including
physical therapy and occupational therapy. She had multiple
developmental delays, including in the area of communication.
At 16 months, she had a developmental age of 9 months.
The mother and father completed psychological
evaluations. The evaluator concluded the mother had a psychotic
disorder. The father’s symptoms were consistent with bipolar
disorder, and he presented with cognitive delay and limited
insight. Before this evaluation, the father had been diagnosed
with schizophrenia and depression, and he had been hospitalized.
Both parents had a poor prognosis for independent and safe
parenting without mental health intervention.
The father attended therapy for a while but then stopped.
Both parents had refused to take medication. The parents also
declined neurological testing and blood tests to rule out certain
causes for their daughter’s developmental delays. They were in
denial regarding her delays.
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By October 2020, the Department was recommending
termination of the father’s reunification services. Although he
generally was compliant with his case plan, the Department was
concerned about his lack of insight, his lack of boundaries and
“co-dependency” with the mother, his lack of protective capacity,
and his inability to care for the child independently. The parents
did not intend to separate, and the father opposed separate visits.
The child’s counsel felt the father was choosing the mother over
the child. At a combined review hearing, the juvenile court found
it would be dangerous to return the child to parental custody and
terminated services.
The Department recommended adoption by the family that
had adopted the child’s older sister. This family lived in Nevada.
The recommendation upset the parents, and they urged adoption
by the foster mother so the child could remain close and they
could continue visiting her.
Ahead of the section 366.26 hearing, a social worker
reported the child was making strides developmentally and “tries
to speak all the time.” The Department also reported on multiple
occasions that, while the child was “well loved” by her parents,
she “does not show any significant attachment to her parents
outside of them being people she is brought to interact with”
twice a week or weekly.
The court continued the section 366.26 hearing while the
child transitioned to Nevada to live with the potential adoptive
family. A last minute information showed the transition had
been smooth; the child was integrating positively with this family
and had “quickly grown attached to her two adoptive big sisters.”
In November 2021, the juvenile court held the section
366.26 hearing to select and implement a permanent plan. The
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father testified briefly at the hearing. He described the frequency
and circumstances of his visits with his daughter and then
described what typically happened during these visits:
“We would try to play some soccer, learn about shapes, how
to put shapes away, kind of figure that—what type of toys that
we would have, that she didn’t really want to play with us, so we
would just kind of go over some Peppa Pig books, try to read her
some English phonics, and then try to play on the kids gym,
right, the slide and kind of watch her go up and around.
“And she enjoyed that very much. She was very good at it.
Yeah, we would also try to paint, construction paper or coloring
books. We would kind of hang out, play with her, understanding
how she likes to color, hopefully that she would be able to speak
about it, to let us know how she finds anything.
“We were learning for the beginning of English or letters,
and coloring books, what can she know about, photos, so she can
keep it in the line, or if not, she’s going to try her best to just
scribble. She found it very fun.”
The father talked about the occupational therapist’s work
with the child and answered some questions by the court and the
mother’s counsel. He said he needed the mother at the visits so
they could “kind of learn about each other” and bond with their
daughter.
The mother did not testify but appeared to say things to the
father during his testimony. The court warned she needed to
stop telling him what to say.
The father’s counsel argued the parental-benefit exception
to adoption applied and the father “stands in the role of a parent
to the best of his abilities.” The mother’s counsel argued the
mother too “has played a parental role.” In response, the child’s
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counsel argued, “I think Father’s testimony was very clear that
what they are to my client is basically a playmate” and that
“there were times where my client didn’t even want to play with
them.” This lawyer also emphasized the child’s young age and
the short time she had lived with her parents. Both the child’s
counsel and the Department noted the parents had not
progressed beyond monitored visitation and requested the court
terminate parental rights.
The juvenile court considered the entire contents of the
court file and specifically noted the section 366.26 report dated
March 4, 2021. It found the child to be adoptable. Regarding the
parental-benefit exception, the court found the parents had
maintained regular and consistent visitation and contact. But it
also found the parents “ha[d] not established a bond with the
child[,]” it would not be detrimental to the child to sever the
relationship, and the benefits of adoption outweighed any benefit
of their relationship. The court remarked that, to some extent,
the consistent visitation “has confirmed a parental role and
relationship. [¶] They at times have worked with the
occupational therapist, and the occupational therapist has been
there. In addition, the parents have participated in some
developmental activities of the child. [¶] But at the same time,
these visits have been a couple hours once or twice a week
monitored. And even with there being some developmental and
parental aspects to it, in large part, it has also really been a
playmate and that type of relationship.”
The court terminated parental rights and chose adoption as
the permanent plan.
The father appealed and asks us to remand the matter for
the juvenile court to “reconsider the evidence presented at the
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section 366.26 hearing under the correct legal standards” of In re
Caden C. (2021) 11 Cal.5th 614 (Caden C.). The mother also
appealed and joined in the father’s brief. She independently
contends if we reverse the order terminating the father’s parental
rights, we must reverse as to her rights too. We therefore
consider the father’s arguments.
II
The father argues the juvenile court erred in finding the
parental-benefit exception did not apply because it considered an
improper factor (whether the parents had a parental role), failed
to conduct a proper analysis focused on the family’s bond from
the child’s perspective, and based its decision on an inadequate
record. None of these contentions has merit.
A
We survey the law.
At the permanency planning hearing, the focus is on the
best interests of the child, and the default option is adoption.
(Caden C., supra, 11 Cal.5th at pp. 631–632.) Only in exceptional
circumstances, laid out in the statute, is it appropriate for the
juvenile court to select a different plan. (Id. at pp. 630–631.)
The parents invoked the parental-benefit exception, section
366.26, subd. (c)(1)(B)(i). This limited exception recognizes that,
despite the child being outside the parents’ custody, their bond
might be so strong that the harm to the child from severing it
outweighs the benefits of adoption. (See Caden C., supra, 11
Cal.5th at pp. 631, 633–634.) For this exception, parents must
establish: (1) they visited the child regularly; (2) there is a
“substantial, positive, emotional attachment” between them and
the child; and (3) terminating this attachment would be
detrimental to the child. (Id. at p. 636; see also id. at p. 631.)
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We review the juvenile court’s findings on the first two
prongs for substantial evidence. (Caden C., supra, 11 Cal.5th at
pp. 639–640.) The third prong requires determining whether any
harm the child would suffer from losing the parental bond would
outweigh the benefits of adoption. (Id. at p. 640.) The juvenile
court must undertake a careful inquiry to untangle the burdens
and benefits of the proposed action. (Id. at pp. 633–634.) We
review this determination for an abuse of discretion. (Id. at p.
640.) In sum, our review is deferential.
B
We reject the father’s claim the Department’s reporting
was inadequate.
The child was under three years old and could not make a
meaningful statement during the entire period of reporting due to
her age and communication delays. Nevertheless, the section
366.26 report (and others) appropriately described the parent-
child interactions and discussed “the amount of and nature of”
the parents’ contact with the child. (§ 366.22, subd. (c)(1)(B).)
The report incorporated information from earlier reports,
including the infant teacher’s February 2020 comment about the
parents’ “very loving” relationship with their child. It noted the
parents’ visitation had been consistent, twice a week at a local
park, and monitored by the child’s foster parent, a social worker,
and the infant teacher. The visits were about an hour each. The
report described the visits: how the parents would bring many
items, some of which were age-inappropriate, and the child would
show “limited to no interest” in most of the items; how the mother
would treat her daughter more like a doll than a child and was
focused on changing her outfits and taking photographs and
videos of her but was otherwise disengaged and disconnected
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from the child. The report contrasted the father, who “does make
more effort to play at their child’s level, but will periodically blow
up at the monitor to defend the mother’s behavior when the
mother is being corrected and/or redirected by the monitor and/or
instructor.” The father would try to play with the child and the
items she cared about and try to apply what he was taught,
including reading to the child and practicing exercises to improve
the child’s motor skills. But he also had difficulty understanding
the child’s behavior, heavily relied on the mother “deciding,
acting, and speaking for them,” and deferred to her wishes about
how to interact with the child. The report notes the parents
“genuinely enjoy seeing” the child and “do express appropriate
affection” with her, including kissing and holding her. But it also
states, with our emphasis: “The minor is willing to have her
parents around her during in-person monitored visits usually
twice a week at the public park, but has become more comfortable
to express to them through crying or fussing when she does not
want them doing something with her. The minor does not show
any significant attachment to her parents.”
The case plan update incorporated into the section 366.26
report notes the child was less comfortable with the parents than
with her foster parent. Regarding the mother, this update covers
much of the same ground as the section 366.26 report. It notes
the mother opposed the Regional Center’s instructions and made
the child uncomfortable with all the dress up. Regarding the
father, the update says he “does enjoy his visits with [the child]
though he is frustrated that his visits have never been liberalized
to unmonitored and has been verbally aggressive in defending
the mother when the mother is being corrected, redirected, or
given instruction. He is willing to get [to the child’s] level and
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play with the things the child does show interest in.” “Father
consistently visits with [the child], but continues to defer
parenting to the mother who is more likely to place the minor at
risk of harm from swallowing small beads to losing balance and
falling down and injuring herself while seated. He tries more of
what he is shown to stimulate his daughter’s development and
interest when compared to the mother.” He “remains unwilling
to separate himself from the mother to demonstrate his
protective capacity.”
This reporting satisfied the statute. (See § 366.22, subd.
(c)(1).)
We end this section by noting neither parent complained of
inadequate reporting before this appeal. (See In re M.M. (July
12, 2022, B315997) __ Cal.App.5th __, __ [2022 WL 2679301 at
*3] [mother forfeited challenge to adequacy of adoption
assessment where she never objected on this basis at the juvenile
court]; In re Mary C. (2020) 48 Cal.App.5th 793, 801 [parents
forfeited claim of deficient report by failing to assert it in the
juvenile court].) And while the father testified, neither parent
submitted additional evidence or requested a bonding study. In
the juvenile court, then, the parents apparently believed the
Department’s reports were sufficient.
C
The parents had an insubstantial bond with the child.
At the time of the section 366.26 hearing, the child had just
turned three. She had spent most of her life in foster care and
only the first five or so months of her life with her parents. The
child received Regional Center services and was largely
nonverbal as of the hearing. She could not “make a meaningful
statement” about her feelings for her parents. The section 366.26
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report shows the child would tolerate her parents during their
monitored visits and would play with them, but she was at times
uninterested and any attachment they had by this point was not
“significant.” (See Caden C., supra, 11 Cal.5th at p. 632 [listing
factors for the second prong of the parental-benefit exception]; see
also In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316 [no
beneficial parental relationship where mother’s supervised
interactions with child, although frequent and loving, “amounted
to little more than playdates for him with a loving adult” and
there was no evidence the child looked forward to visits,
benefitted from them, or had difficulty separating from his
mother].)
This case is unlike In re J.D. (2021) 70 Cal.App.5th 833,
855–858 (J.D.), cited by the father, where there was considerable
evidence the mother and her child had a substantial and positive
emotional attachment. The father’s other main case, In re B.D.
(2021) 66 Cal.App.5th 1218, 1229 & fn. 4 (B.D.) is similarly
distinguishable. (Id. at p. 1229 [“our review of the record
suggests that the parents presented evidence to support a finding
that they had a beneficial relationship with their children”].)
D
The record also shows the trial court did not abuse its
discretion in balancing the harms and benefits of adoption.
Indeed, the record does not show the child would be harmed by
the loss of the largely playmate relationship she had with her
parents. On the other hand, the child was joining her half sister
in a loving adoptive home with adoptive parents who were
motivated to care for her and to provide the services she needed,
and the reports of the child’s life there were positive. The
juvenile court’s decision on this third prong certainly was not
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arbitrary, capricious, or absurd. (See Caden C., supra, 11 Cal.5th
at p. 641.)
E
We reject the father’s claim the trial court considered
impermissible factors in ruling on the parental-benefit exception.
The father says the trial court impermissibly considered
whether the parents’ role was parental. The reporter’s transcript
shows the trial court simply was responding to the parties’
arguments about the parents and their relationship with their
child. Whether this relationship was one akin to playmates is
relevant in assessing the strength of their bond and whether
severing it would harm the child. (See J.D., supra, 70
Cal.App.5th. at pp. 864–865 [a relationship involving a
substantial, positive, emotional attachment is “surely more
significant than that of a ‘mere friend or playmate’ ”]; 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”].)
Caden C. does not prohibit such considerations. (See J.D.,
supra, 70 Cal.App.5th at p. 864 [“Caden C. did not address
whether, to satisfy the second element, the nature of a parent’s
relationship must be ‘parental’ ”].)
Context makes clear the juvenile court was responding to
the parties. The court sought to determine the existence and
nature of any bond between the parents and the child, as well as
any impact of losing this relationship. The court applied the law
thoughtfully and correctly.
The court was not required to make a statement of its
findings or reasons. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156,
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1161.) The father’s frequent criticism of the court’s brevity is
unfounded.
DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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