In re J.R. ( 2022 )

Filed 8/22/22
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re J.R. et al., Persons Coming
Under the Juvenile Court Law.
HUMBOLDT COUNTY
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
A164334
Plaintiff and Respondent,
v. (Humboldt County
Super. Ct. Nos. JV2000075,
A.B.,
JV2000076 )
Defendant and Appellant.
A.B.’s (mother’s) two young sons, J.R. who is now nearly four years old
and B.R. who is now nearly three, were removed from her custody as a one-
and-a-half-year-old toddler (J.R.) and a six-month-old infant (B.R.). She
appeals orders entered about a year and a half later terminating her parental
rights, arguing the juvenile court erred in its consideration of the beneficial
relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). 1 She
contends the matter must be remanded for a new section 366.26 hearing
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
*
this opinion is certified for publication with the exception of part II of the
Discussion.
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise noted.
1
because the juvenile court relied on factors that are legally erroneous under
In re Caden C. (2021) 11 Cal.5th 614, a decision clarifying the exception’s
scope that was decided about six months before the section 366.26 hearing
took place in this case.
We affirm the orders terminating parental rights, but do not reach the
merits of the legal question mother raises because the record does not contain
evidence that would support application of the beneficial relationship
exception. We publish portions of this decision to clarify that when a juvenile
court applies the wrong legal standard in rejecting the beneficial relationship
exception, reversal is not warranted if the parent did not introduce evidence
that would permit a finding in their favor under the correct legal standard.
When a parent has not done so, any reliance by the juvenile court on
improper factors is harmless. In the unpublished portion of this opinion we
explain why mother failed to do so here.
BACKGROUND
The two young boys were removed from the custody of both of their
parents, who are married, by the Humboldt County Department of Health
and Human Services (agency) in May 2020, after a string of child abuse and
neglect referrals stemming from repeated bouts of domestic violence between
the couple, concerns over parental substance abuse and, in mother’s case,
mental health concerns. As noted, J.R. was then 19 months old and B.R. was
6 months old. They were placed into foster care together, later joined by a
newborn sister who was detained in a separate case (not at issue here) after
mother tested positive for drugs at her birth.
The juvenile court sustained allegations that the two young boys were
at substantial risk of both serious physical and emotional harm due to their
exposure to ongoing domestic violence in the home, father’s
2
methamphetamine abuse and mother’s self-reported depression that was
contributing to her inability to protect them (§ 300, subds. (b), (c)). During
the case, mother’s struggles with substance abuse also became an issue. The
parents received 12 months of reunification services, which were terminated
on August 12, 2021. Later, after mother entered a residential drug treatment
program, she filed a petition under section 388 asking the court to reinstate
her reunification services. The matter was calendared for an evidentiary
hearing at the same time as the section 366.26 hearing.
By the time the combined sections 366.26/388 evidentiary hearing took
place in December 2021, J.R. had just turned three years old and B.R. two,
and the little boys had been out of their parents’ custody for nearly 19
months. The evidence at the hearing consisted of several reports and other
pre-hearing filings, 2 and brief testimony by a social worker and mother. At
the conclusion of the hearing, the court denied mother’s section 388 petition
and terminated parental rights over both children.
2 Although it did not formally enter them into evidence, the juvenile
court said that it had considered: the section 366.26 report, an Adoption
Assessment Addendum to the section 366.26 report, a report prepared by the
Court Appointed Special Advocate (CASA), a response to the section 388
petition, mother’s pretrial statement, and an Addendum Report filed the
previous day.
The court did not state that it considered any earlier reports, such as
those prepared for status review hearings and for the detention, jurisdiction
and disposition hearings. Accordingly, those earlier reports are not part of
the evidentiary record of the section 366.26 hearing and we will not consider
them. (See In re L.A.-O. (2021) 73 Cal.App.5th 197, 202, 207-208.)
3
In rendering these rulings, it made extensive oral comments from the
bench that are the focus of mother’s appellate arguments but, for the reasons
below, are unnecessary to examine.
These timely appeals by mother followed.
DISCUSSION
I.
The Law
As noted, about six months before the section 366.26 hearing took
place, the Supreme Court decided In re Caden C. (2021) 11 Cal.5th 614(Caden C.), which addressed the purpose and scope of the beneficial
relationship exception (§ 366.26, subd. (c)(1)(B)(i)), a statutory doctrine that
allows the juvenile court, in appropriate circumstances, to deviate from the
presumptively preferred option of choosing adoption as a child’s permanent
plan after reunification has failed. In essence, the Court explained, when a
child cannot safely be returned to a parent’s custody, this exception preserves
the child’s right to maintain a relationship with the child’s parent “if severing
that relationship would, on balance, harm the child.” (Caden C., at p. 643.)
Extended discussion of the doctrine’s mechanics and elements is unnecessary.
(See generally In re J.D. (2021) 70 Cal.App.5th 833 (J.D.) [discussing the
exception as construed by Caden C.].) But one aspect bears mention: the
burden of proving this exception is on the parent, by a preponderance of the
evidence. (See Caden C., at p. 636; J.D., at pp. 854, 869.)
In her opening brief, mother raises a single issue. She maintains the
juvenile court considered an improper factor in assessing the second element
of this test, which requires a parent to show that “the child has a substantial,
positive, emotional attachment to the parent—the kind of attachment
implying that the child would benefit from continuing the relationship.”
4
(Caden C., supra, 11 Cal.5th at pp. 636, 640.) She asserts the case must be
remanded because “rather than assessing whether Mother and her sons had
a beneficial relationship as defined by Caden C., the juvenile court appears to
have considered whether there was a ‘parental-bond’ between Mother and her
children.” Thus, she maintains, the juvenile court applied the wrong legal
standard in evaluating the second element.
It is unnecessary to decide whether any error occurred (nor whether, as
urged by the agency, any such error was invited by mother herself during her
closing arguments) because mother was not prejudiced by any such error. 3
As we will explain, unlike in cases where this court and others have
remanded for errors of a nature claimed here to be similar, the record in this
case would not support a finding in mother’s favor on the parental benefit
exception even if her evidence were credited. We will address mother’s
argument on that factual point in the unpublished portion of our opinion.
We do not reverse dependency cases for harmless error. As our
Supreme Court has explained: “A child has a compelling right to a stable,
3 There also are significant issues as to whether any such error was
forfeited. As noted, the section 366.26 hearing took place six months after
Caden C. was decided, and yet mother did not cite that case, address it or
argue that the juvenile court should apply the legal standard it announced.
The parties and the court all had the benefit of the Supreme Court’s guidance
by then. If, as mother asserts, the juvenile court was being expressly urged
by the agency to apply the wrong legal standard, then it was incumbent upon
mother to say so to avert the very problem she now says occurred. Had she
done so, this appeal perhaps could have been avoided. (See generally
Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [applying “ ‘established’ ”
rule that “ ‘issues not raised in the trial court cannot be raised for the first
time on appeal’ ”].) We of course have discretion to decide pure issues of law
for the first time on appeal, but express no opinion as to whether doing so in
this instance would be appropriate.
5
permanent placement that allows a caretaker to make a full emotional
commitment to the child. [Citation.] Courts should strive to give the child
this stable, permanent placement, and this full emotional commitment, as
promptly as reasonably possible consistent with protecting the parties’ rights
and making a reasoned decision. The delay an appellate reversal causes
might be contrary to, rather than in, the child’s best interests. Thus, a
reviewing court should not mechanically set aside an adoption order because
of error . . . ; the error must be prejudicial under the proper standard before
reversal is appropriate.” (In re Celine R. (2003) 31 Cal.4th 45, 59 [addressing
error in failing to appoint separate counsel for children]; see also, e.g., In re
Shannon M. (2013) 221 Cal.App.4th 282, 302 [engaging in harmless error
analysis where juvenile court applied wrong legal standard]; Cal. Const.,
art. VI, § 13; Code Civ. Proc., § 475.)
When a trial court applies the wrong legal standard, a remand for
further proceedings is certainly appropriate if an appellate court announces a
new legal standard and it is unclear from the record whether the trial court
would have reached the same result had it not lacked appellate guidance.
(See In re Charlisse C. (2008) 45 Cal.4th 145, 166-167; see also Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798, 824; Ramirez v. Yosemite Water Co.,
Inc. (1999) 20 Cal.4th 785, 803; accord, Young v. Superior Court of Solano
County (2022) 79 Cal.App.5th 138, 169; Guerrero v. Hestrin (2020)
56 Cal.App.5th 172, 190.) After all, in such a situation the record might not
be fully developed (Charlisse C., at p. 167) and obvious considerations of
fairness are implicated as well (see Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 931 [remand appropriate “ ‘where justice
demands that course’ ”]). Plus, “appellate courts should be wary of finding
harmless error ‘[w]hen a counterfactual inquiry appears too difficult to
6
responsibly undertake, or a counterfactual conclusion relies on inferences
that really amount to guesswork.’ ” (In re Christopher L. (2022) 12 Cal.5th
1063, 1082.) Thus, consistent with this general framework, this court in J.D.,
supra, 70 Cal.App.5th 833 and other courts along with us have reversed
juvenile court rulings that were entered before Caden C. was decided for legal
error that Caden C. made apparent, when the evidence adduced at the
section 366.26 hearing could have supported application of the beneficial
relationship exception had the juvenile court had the benefit of that decision
when it ruled. 4 The requirement of prejudice was implicit in our decision in
J.D., but we now say so expressly.
But when, as in this case, the proper legal standard is already
established and a party has had a full and fair opportunity to present all of
their evidence on a contested issue, and yet in the end there is simply no
evidence that could support a favorable finding for them, then any legal error
4 See In re D.P. (2022) 76 Cal.App.5th 153, 167 (reversing and
remanding for error under Caden C. where there was “some evidentiary
support” for applying the exception); J.D., supra, 70 Cal.App.5th at pp. 841,
855, 862 (reversing and remanding for error under Caden C., where mother
“presented evidence to support a finding that [child] has a ‘substantial,
positive, emotional attachment’ to her sufficient to meet the second element”
and the evidence almost “compel[led] a determination that mother proved the
existence of a beneficial relationship as a matter of law”); In re D.M. (2021)
71 Cal.App.5th 261, 271 (given father’s testimony about his relationship with
children, error in considering improper factors not harmless because “[w]e
cannot know how the court would have exercised its discretion” under Caden
C.); In re B.D. (2021) 66 Cal.App.5th 1218, 1222, 1229, 1230-1231 (reversing
and remanding where “our review of the record suggests that the parents
presented evidence to support a finding that they had a beneficial
relationship with their children, should the juvenile court credit that
evidence”); see also In re Katherine J. (2022) 75 Cal.App.5th 303, 321
(“parent’s testimony [in In re B.D.] . . . , if credited, indicated a strong
attachment”).
7
in the court’s reasoning or basis for its decision quite obviously is harmless. 5
(See, e.g., Tanforan v. Tanforan (1916) 173 Cal. 270, 274 [error in forcing
plaintiff to abandon duress claim at trial held harmless because claim was
“wholly unsupported by the evidence”]; accord, Paterno v. State of
California (1999) 74 Cal.App.4th 68, 107 [error that precludes consideration
of a proper legal theory is “not categorically reversible”]; see also In re
Janee W. (2006) 140 Cal.App.4th 1444, 1452-1453 [affirming juvenile court
ruling despite application of wrong legal standard, because ruling was
supported by undisputed evidence under the proper standard]; In re
Alayah J. (2017) 9 Cal.App.5th 469, 482 [harmless error to defer
consideration of parent’s section 388 petition until after section 366.26
hearing because “the evidence showed, at best, changing rather than changed
circumstances”].) Simply put, a remand for factual finding is not appropriate
when there are no factual issues to resolve due to a failure of proof by the
party who has the burden of proof. (See, e.g., Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 414 [despite trial court error, case
must be remanded for trial court to decide if arbitration agreements were
void only “[t]o the extent . . . any plaintiff did produce legally sufficient
5 We respectfully disagree with two recent authorities to the extent
they may be construed as mandating reversal of a post-Caden C. order
terminating parental rights for legal error in the application of Caden C.
without considering if the record would have supported a favorable finding
had the proper legal standard been applied. (See In re M.G. (2022)
80 Cal.App.5th 836 [reversing order terminating parental rights entered one
week after Caden C. was published]; In re L.A.-O., supra, 73 Cal.App.5th at
pp. 208, 211-212 [doing same on similar timing, despite also concluding there
was “no evidence of a beneficial relationship at all” between children and
father and “[a]s to both parents, there was evidence that the visits actually
upset the children”].)
8
evidence of fraud”]; see also id. at pp. 402, 426-427, 431 [plaintiffs who did
not present legally sufficient evidence concerning fraud claim not entitled to
remand]; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951,
973 [remand required to resolve factually disputed issues concerning fraud in
the inducement, “unless there is no evidentiary support for the [fraud]
claims”].)
Here, despite her assertions to the contrary, mother presented no
evidence that either of her young sons had a “substantial, positive emotional
attachment” to her within the meaning of Caden C., and so there are no
factual issues to resolve. In the remainder of this opinion, which we do not
publish, we explain why that is so. So a remand due to any legal error in the
juvenile court’s consideration of the beneficial relationship is not warranted,
and it also would be pointless.
II.
The Evidence
We agree with the agency that mother, who bore the burden of proving
this exception (see J.D., supra, 70 Cal.App.5th at pp. 854, 869), did not
introduce any evidence that either child had a substantial emotional
attachment to her. Mother’s opening brief does not even assert that she
introduced evidence sufficient to prove this element. She says so only in her
reply brief where, responding to the agency’s argument, she says that
visitation logs provided to the court in an addendum report, along with her
own testimony and that of the social worker, was “evidence that could have
supported a finding that [she] had a beneficial relationship with J.R. and
B.R.” We do not agree that this evidence suffices.
“A positive attachment between parent and child is necessarily one
that is not detrimental to the child but is nurturing and provides the child
9
with a sense of security and stability,” and “an emotional attachment is one
where the child views the parent as more than a mere friend or playmate and
[whose] interactions with the parent were not ambivalent, detached, or
indifferent.” (B.D., supra, 66 Cal.App.5th at p. 1230, italics added.) Here, as
we will explain, the evidence reflected that mother was appropriate with the
children, attended to their toddler needs during visits in various ways, and
played with them. But there was no evidence that either child had any kind
of emotional attachment to mother, much less a “substantial” emotional
attachment to her.
The visitation logs that were attached to one of the reports, which
covered the last two months of supervised visits (ten visits in all, from
September 30 to November 30, 2021), do not indicate the kind of “substantial,
positive, emotional attachment” that Caden C. described. (See J.D., supra,
70 Cal.App.5th at pp. 854-855). Those 21 pages of visitation records, which
we have independently reviewed, reflect that in about half of the visits the
children would “sometimes” eagerly interact with mother and in one visit
were noted as having been consistently responsive to her direction. But apart
from a single time when the little boys were noted to have held hands with
mother (once, as she was walking them into the visitation room), there is no
record of either child ever hugging or kissing mother, displaying affection in
other ways or even laughing during those visits. On the contrary, the logs
indicate that they didn’t do any of those things. The logs contain boxes with
descriptive behaviors for the visitation monitor to check off as appropriate (as
a supplement to the narrative descriptions), and at every single visit the
visitation monitor left blank the boxes indicating that the children “showed
affection during visit” or “laughed.” There also was no evidence of crying
when visits ended (the “cried” box was left unchecked at every visit too).
10
There is no evidence either child ever asked to go home with mother. The box
indicating whether the parents were “comforting and supporting” was left
unchecked in all but two of the ten visits. Indeed, there is a record of mother
hugging her children only once, during one visit when the log notes that she
“hugged [J.R.].”
Mother asserts, accurately, the visitation logs reflect she “gave positive
attention to the children” and the children “were consistently responsive and
involved with her,” “appeared comfortable” and “eagerly interacted” with her.
But mother cites no authority that such evidence would be sufficient to
sustain a finding that either child had a substantial, positive emotional
attachment to her, and we are aware of none. She does not explain how the
relationship depicted in the logs rises to the level of “more than a mere friend
or playmate.” (B.D., supra, 66 Cal.App.5th at p. 1230.) The nature of these
visits, and the children’s reactions to them, are qualitatively different than
the showings involved in the handful of decisions (including by this court)
that have found evidence sufficient for a remand in light of Caden C. (See
authorities cited at footnote 4, ante, page 7.)
The social worker’s testimony corroborated that mother was
“appropriate” with the children during visits and they “seemed comfortable”
with her, based upon the fact that they engaged in conversation with her.
Mother’s testimony at the hearing about the boys’ relationship to her
was extremely brief. She testified J.R. would greet her at visits by saying
“Mommy,” would “sometimes” kick his feet in his car seat in excitement to see
her and “sometimes” was “a little hesitant” to leave when visits ended. She
also testified B.R. calls her “Mom” and does not put up any resistance when
visits end.
11
The record of the section 366.26 hearing as a whole would not permit a
finding in mother’s favor. Three-year-old J.R. had been in foster care for
nearly half of his life and two-year-old B.R. for most of his life. (Cf. In re
Eli B. (2022) 73 Cal.App.5th 1061, 1074 [considering, inter alia, two-year-old
child’s age and portion of life spent in parental custody in holding second
element not satisfied].) At most, all of the foregoing evidence shows that
mother occupied the role of a “ ‘friendly visitor or friendly nonparent
relative’ ” to these two very young children. (In re Helen W. (2007)
150 Cal.App.4th 71, 81.) Despite mother’s evident love for her two boys,
evidence that the toddlers enjoyed their visits with her is simply not enough
for a parent to prove the kind of qualitative attachment that the parental
benefit exception requires. (See, e.g., In re Helen W., 150 Cal.App.4th at p. 81
[affirming order terminating parent rights despite evidence mother fed and
changed children during visits, was called “Mom,” where children were young
and spent most of their lives out of mother’s custody]; In re Jason J. (2009)
175 Cal.App.4th 922, 938 [affirming order terminating parental rights
despite evidence that father was “affectionate and appropriate” with son, son
was comfortable with father and called him “Daddy,” because there was “no
evidence” that boy “has the type of emotional attachment to [father] that
would cause him to be greatly harmed if parental rights were terminated”];
In re Autumn H. (1994) 27 Cal.App.4th 567, 571, 572-573, 575-576 [affirming
order terminating parental rights concerning child detained at age one who
spent three-quarters of her life in foster care, despite evidence of friendly
visits between parent and child].)
Finally, mother raises a number of new issues in her reply brief. She
argues: the juvenile court did not analyze the second element at all (contrary
to her argument in the opening brief and page 14 of the reply brief itself that
12
the court did so but incorrectly), it relied on another improper consideration
under Caden C. which was mother’s lack of progress in resolving the issues
that led to the dependency, and the agency’s reports provided insufficient
information about the children’s relationship to her, which she says is not an
“object[ion] to the sufficiency of those reports, but rather, [a] claim[] that
those reports could not have provided the juvenile court with the necessary
information for it to evaluate” the applicability of the second element. We
decline to consider these arguments because they have been forfeited. 6 (See
Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins.
Exchange (2022) 77 Cal.App.5th 971, 997 [improper to raise new argument in
reply brief].) Further, even if we considered them on the merits they would
fail for the same reason just discussed: on this record, any such errors were
harmless.
DISPOSITION
The judgments terminating parental rights are affirmed.
6 With regard to the social worker’s reports, we also note that mother
asserted in passing in a single sentence of her opening brief, without any
analysis or citation to the record, and not captioned under a required
separate argument heading, that “the social worker’s reports failed to
evaluate” the second element of the beneficial relationship exception. That
completely undeveloped point is not a proper appellate argument, and is
properly disregarded too. (See Shiheiber v. JPMorgan Chase Bank,
N.A. (July 26, 2022, No. A160188) 2022 WL 2951916, at pp. *4, *11.)
Further, as noted, mother asserts in her reply brief that all she meant was
not that the reports are deficient but that they could not have supplied an
evidentiary basis for the court’s ruling.
13
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
In re J.R. (A164334)
14
Trial Court: Humboldt County Superior Court
Trial Judge: Hon. Doris L. Shockley
Counsel:
Erin W. Keefe, under appointment by the Court of Appeal, for Defendant and
Appellant.
Scott A. Miles, Interim County Counsel, Anne H. Nguyen, Deputy County
Counsel, for Plaintiff and Respondent.
15