In re G.S. CA1/1 ( 2022 )

Filed 8/18/22 In re G.S. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re G.S., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN & FAMILY SERVICES
BUREAU,
A164018
Plaintiff and Respondent,
v. (Contra Costa
County
S.S.,
Super. Ct. No. J19-
Defendant and Appellant. 00740)
S.S. (mother)1 appeals from an order terminating her parental rights
under Welfare and Institutions Code section 366.26.2 Mother contends the
juvenile court erred in concluding the beneficial-parental relationship
exception to termination did not apply because it did not consider the
exception in conformance with the principles articulated in In re Caden C.
(2021) 11 Cal.5th 614 (Caden C.).
1 Father is not a party to this appeal.
All further statutory references are to the Welfare and Institutions
2
Code unless otherwise indicated.
1
We conclude the juvenile court did not err and affirm.
BACKGROUND
Proceedings Before Section 366.26 Hearing
The juvenile court took jurisdiction of then-one-year-old G.S. (minor)
and removed her from mother’s care, after mother admitted, and the court
sustained, allegations that minor was at a substantial risk of harm and
neglect in that “there have been multiple instances of domestic violence . . .
between the mother . . . and [father], in the presence of the children”3 and
that “mother has allowed [father] to continue to reside in the home, despite
[an] active restraining order, placing the children at substantial risk of
serious harm.”
At the disposition hearing, the court adopted the Contra Costa County
Children and Family Services Bureau’s (Bureau) recommendations of
continued services and visitation.
Over the next 18 months, the Bureau recommended terminating
services to mother. Despite mother’s lack of compliance with her case plan,
the juvenile court extended services due in part to extending services to
father and because of the lack of in-person visits due to the pandemic. At the
18-month hearing, the court stated, “despite previously making . . . generous
accommodations and . . . extending services to the 18 months, which has now
become . . . 22 months,” mother “failed to really comply with her plan,” and
“continued in one of the most destructive and toxic relationships with
[father].” After recounting the history of the proceedings, the court
terminated services and set the matter for a section 366.26 hearing.
3 Mother has three other minor children, minor’s half-siblings, none of
whom reside with her. Those children were removed from her care, and the
juvenile court ordered physical and legal custody to their non-offending
fathers.
2
Section 366.26 Hearing
In its 366.26 report, the Bureau recommended termination of parental
rights and making adoption the permanent plan for minor. The Bureau
provided a detailed account of visitation: At the start of visitation, in 2019
and early 2020, mother, minor, and minor’s half-siblings would do group
visits. Mother was “always affectionate with [the children],” though she
“paid special attention to [minor].” Mother took pictures of the children,
“always had a snack for [minor] and changed her diaper when needed.” At
the end of one visit in January 2020, minor “cried and did not want to say
goodbye to the mother.” Later when visits switched to video calls in March
2020, minor “lost interest quickly,” or would get “bored quickly and [leave]
camera range” and mother “mostly talked” to minor’s half-sibling.
The visits switched back to in-person in September 2020, and initially
minor “began to cry when the foster mother put her down, but she ran to hug
mother when she saw the mother.” The visits continued to be positive until
the time of the hearing. Mother brought snacks for minor, minor “ran to hug”
mother and her siblings, and they would all play games. The “visits ended
calmly.” The Bureau noted mother and minor “do have a significant
parent/child relationship, but it does not outweigh the benefits of legal
permanency for the child.”
At the section 366.26 hearing, the court heard from the social worker,
mother, and counsel.4
The social worker testified minor “takes the visits pretty well and she
goes to the visits happily and she comes back from the visits happily and
there’s not too much emotional upset before or after the visits.” In the past,
minor had called mother “ ‘mommy,’ ” but now called her “ ‘La Señora,’ ”
4 The court also heard from father.
3
which means “ ‘The woman,’ in Spanish.” The worker opined that while
mother did have a relationship with minor it did not “outweigh the
permanence of adoption.” Minor “is a very young child. She just turned 3
years old. She has spent just about the last two years of her life outside of
the mother’s care, and in the meantime, she has developed a very strong
parent/child relationship with her foster parents, and I do think there’s a lot
of value for her having stability in knowing where she is going to reside and
where she’s going to be raised.”
Mother testified she and minor “play on visitations but mostly we love
how we feel being together when we see each other.” Mother saw “immense
happiness in [minor]” when she came to visits. Minor said, “ ‘No,’ ” when
mother asked if “she wanted to leave.”
Counsel for mother, referencing Caden C., argued there was
“uncontroverted evidence that the mother has a significant bond, substantial
bond with this child. I think the detriment to the child for this relationship
to be broken is obvious now, and most compelling in the last visit they had
where [minor] was saying that she didn’t want to leave. She is only 3 so she
doesn’t have the vocabulary at this point, but it’s obvious that she is filled
with joy in seeing her mother and I think the detriment to breaking off that
relationship is clear, that it will be traumatic for her to break off this
relationship. And so I think the third prong is met.”
Counsel for the Bureau urged the court to find the parental exception
to termination did not apply. Counsel noted while the social worker stated
mother had “consistently” visited and had, “a significant relationship with
[minor],” it “does not outweigh adoption, or the permanence of adoption.”
Minor “looks to her foster parents for affection. She seeks them out. She’s
calling them ‘Mommy’ and ‘Poppy’.” Counsel urged the court to consider “the
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length of time that [minor] has been with these foster parents,” which had
“been the majority of her life.” Additionally, there was “no evidence [minor]
asks to see her parents . . . in between visits. There is no evidence that she
acts negatively when the visit ends. . . . There’s no indication that [minor]
has a greater need for this visitation between the parents as opposed to what
the permanence of adoption gives her.”
Minor’s counsel joined with the Bureau’s counsel adding, “This is an
outing that [minor] goes on. She gets in the car with [her case assistant], she
goes to the visit, she gets to play with someone who loves her and brings her
gifts and candy. I know she has a very good time during these visits, but
that’s not the point.” Counsel noted the visits never moved beyond
supervised visits, “[t]here are still safety risks and [minor] . . . deserves to not
be in the system any longer.”
The court began by stating the report was “thorough,” and discussed
“visitation almost from the inception of the case,” discussed how minor was
doing in her foster parents’ home and gave a “good overview of [minor] and
what her needs are.” The court acknowledged that mother loved minor but
stated that was “not really the question here,” rather the hearing was to
“determine the most permanent plan for [minor].” Minor was “3 years old
and 3 months,” she is a “happy social child” who “gravitates to her foster
parents when she is hungry, tired or hurt and seeks assistance from
them. . . . She refers to them . . . as ‘Babi’ and ‘Papi’. She has lived with
them for two years. These are her parental figures. She loves them.”
The court then found no exception applied, and addressed its reasons at
length:
“The mother has, for the most part, consistently visited with [minor].
The visits have shown that the mother has been nurturing to [minor],
5
that she has been loving towards [minor], that [minor] has engaged
with her in a very lovely way.
“This case has been going on now for over two years and the mother has
continued in her visitation. . . . [¶] The description of the visits are
clear. The mother has brought her clothing. I thought it was sweet
how she described the visits go from her perspective. She brought food.
During those hours of supervised visits they have enjoyed each other’s
company and I do think that they have a relationship. So under the
first two prongs visits have been consistent and they do have an
ongoing relationship.
“The issue is the quality and nature of that relationship and whether or
not it ultimately outweighs the benefit of permanence to [minor].
[¶] Adoption would provide complete stability and permanence for
[minor]. She is a 3-year-old child who has lived in this home for two
years. She has enjoyed a close relationship with people who she
perceives to be her parents. They meet her every need. While she has
enjoyed visits with her mother and they have been described, [the
social worker] testified that the benefit and stability of adoption would
be best for [minor], and I concur with that assessment. I also do not
believe it would be detrimental to [minor’s] best interest to terminate
parental rights, and I say that taking into account truly the mostly
very good relationship and visitation that [minor] enjoyed with her
mother.
“I truly wish that much earlier on in this case that [mother] had been
able to truly focus on her plan. I’m hearing she started something in
late October, but I truly wish much earlier on she had been able to
focus on her plan and to do the things that she needed to do in order to
be able to reunify with [minor]. But we had a very protracted contested
hearing related to the termination of services, and as—and I will not
repeat myself. Both parents were actually given a plethora of services
and time, and they continue to have their toxic relationship to abuse
substances and to continue and engage in domestic violence incidents,
much to the detriment of their ability to reunify with [minor].
“So with [minor] having been in this home for two years it is pretty
clear that that is her world. She looks to them as her parents. That is
the stability that the code prefers, and that is the nature of the quality
of that relationship that she shares with her resource care providers,
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her being comfortable in that home, being happy in that home and
stable in that home. I think it’s abundantly clear that it would be more
detrimental to not have that type of stability that she needs and
desires, and it would not be a service to [minor] to have her be in some
limbo when she could and will be adopted. [¶] I don’t want to seem
insensitive to the parents. I really listened very carefully to what both
of them had to say, but particularly [mother] and her testimony. I
genuinely do believe that the visits that they had were nice visits. I
also agree with [minor’s counsel] that the visits were very fun visits
and visits where the mother did take some parental roles in it and
nurtured her, but they were also visits that could be referred to as
friendly.”
The court found minor to be adoptable and terminated mother’s
parental rights.
DISCUSSION
“At the section 366.26 hearing, the question before the court is
decidedly not whether the parent may resume custody of the child.” (Caden
C., supra, 11 Cal.5th at p. 630.) Instead, the purpose of a section 366.26
hearing, is to select and implement a permanent plan for the child. (Ibid.)
“[T]he court must first determine by clear and convincing evidence whether
the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If so, and if the
court finds that there has been a previous determination that reunification
services be terminated, then the court shall terminate parental rights to
allow for adoption. [Citation.] But if the parent shows that termination
would be detrimental to the child for at least one specifically enumerated
reason, the court should decline to terminate parental rights and select
another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)–(vi), (4)(A).)”
(Caden C., supra, 11 Cal.5th at pp. 630–631.) One of those exceptions is the
parental-benefit exception. (Id. at p. 631.)
The proponent of the exception, as is mother here, must establish, by a
preponderance of the evidence three elements: “(1) regular visitation and
7
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 pp. 631, 637, italics omitted.)
“ ‘The first element [of the exception]—regular visitation and contact—
is straightforward. The question is just whether “parents visit consistently,”
taking into account “the extent permitted by court orders.” ’ ” (In re
Katherine J. (2022) 75 Cal.App.5th 303, 316 (Katherine J.), quoting Caden C.,
supra, 11 Cal.5th at p. 632.)
“The second element, in which the court must determine whether the
child would benefit from continuing the relationship with her parent, is more
complicated. ‘[T]he 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.” [Citation.]’ (Caden C., supra,
11 Cal.5th at p. 632.) ‘[C]ourts often consider how children feel about,
interact with, look to, or talk about their parents.’ (Ibid.) Caden C. instructs
us that ‘it is not necessary—even if it were possible—to calibrate a precise
“quantitative measurement of the specific amount of ‘comfort, nourishment or
physical care’ [the parent] provided during [his or] her weekly visits.”
[Citation.]’ (Ibid.) Expert opinions or bonding studies provided by
psychologists who have observed and/or reviewed the parent-child
relationship are often ‘an important source of information about the
psychological importance of the relationship for the child.’ (Id. at pp. 632–
633, fn. omitted.) Ultimately, the court’s role is to decide whether the child
has a ‘ “significant, positive, emotional relationship with [the parent.]” ’ (Id.
at p. 633.)” (Katherine J., supra, 75 Cal.App.5th at pp. 316–317.)
8
“The third and final element asks the court to ascertain whether
severing parental ties—and thus ‘terminating [the] parental’ relationship—
would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 633.)
‘What courts need to determine, therefore, is 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.’ (Ibid.)
Because any harm caused by loss of this relationship may be significantly
mitigated by the child’s adoption into a stable, loving home, the court must
then perform a delicate balancing act. The ‘subtle, case-specific inquiry [that]
the statute asks courts to perform [is]: does the benefit of placement in a new,
adoptive home outweigh “the harm [the child] would experience from the loss
of [a] significant, positive, emotional relationship with [the parent?]” ’ (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.)” (Kathrine J., supra, 75 Cal.App.5th at
p. 317, fn. & italics omitted.)
“In addition to these substantive clarifications, Caden C. also
establishes a hybrid standard of review for the beneficial relationship
exception. The first two elements, which require the juvenile court to ‘make a
series of factual determinations’ regarding visitation and the parent-child
relationship, ‘are properly reviewed for substantial evidence.’ (Caden C.,
supra, 11 Cal.5th at p. 640.) These determinations should ‘be upheld if . . .
supported by substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a different result
had it believed other evidence.’ (In re Dakota H. (2005) 132 Cal.App.4th 212,
228. . . .)” (Katherine J., supra, 75 Cal.App.5th at pp. 317–318.)
9
“But ‘the ultimate decision—whether termination of parental rights
would be detrimental to the child due to the child’s relationship with his
parent—is discretionary and properly reviewed for abuse of discretion.’
(Caden C., supra, 11 Cal.5th at p. 640.) Accordingly, we will not disturb the
juvenile court’s decision unless it ‘ “ ‘exceed[s] the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.’ ” ’ (In re
Stephanie M. (1994) 7 Cal.4th 295, 318. . . .)” (Katherine J., supra,
75 Cal.App.5th at p. 318.)
There is no serious dispute that the trial court concluded mother
carried her burden as to the first two elements.5
As to the final element—whether terminating the parental relationship
would be detrimental to the minor—mother maintains the juvenile court
abused its discretion because it “failed to properly consider how [minor]
would be affected by losing her parental relationship with mother and what
life would be like for her in an adoptive home with mother no longer in her
life,” and instead improperly “consider[ed] the degree of mother’s parental
roles,” “mother’s continued difficulties with substance abuse and domestic
5 The Bureau does not directly dispute that the court found in favor of
mother as to the second element. It nevertheless asserts the evidence before
the court “did not demonstrate that [minor] had a significant attachment”
with mother, pointing to evidence that while minor enjoyed her visits with
mother, their interactions over a nearly two-year period never progressed
beyond limited, supervised visits, and their relationship did not go “beyond
what a child might have with a teacher or a family friend.” We agree with
mother that the fairest reading of the record is that the court did find that
she carried her burden as to the second element. The court stated, for
example, “under the first two prongs visits have been consistent and they do
have an ongoing relationship.” In any case, we need not address the issue
further since, as we shall explain, we conclude the court did not err in ruling
mother did not carry her burden as to the third element.
10
violence,” and “the prospective adoptive parents’ role as parental figures in
[minor’s] life.” (Italics omitted.)
Mother relies on a number of post-Caden C. cases—In re L.A.-O. (2022)
73 Cal.App.5th 197 (L.A.-O.), In re D.M. (2021) 71 Cal.App.5th 261 (D.M.), In
re J.D. (2021) 70 Cal.App.5th 833 (J.D.), and In re B.D. (2021) 66 Cal.App.5th
1218 (B.D.).
However, none of these cases assist mother here, as the courts in those
cases focused on the second element of the Caden C. analysis and we have
agreed with mother that the juvenile court found she carried her burden on
this element. In each of these cases, the juvenile courts found insufficient
relationships between the parents and minors, and made termination rulings
prior to Caden C. (L.A.-O., supra, 73 Cal.App.5th at p. 205 [parents “ ‘have
not acted in a parental role in a long time’ ”]; D.M., supra, 71 Cal.App.5th at
p. 268 [father “ ‘[h]as not risen to the level of a parent’ ”]; J.D., supra,
70 Cal.App.5th at p. 851 [court “found their relationship did not ‘amount to
[a] parental bond’ ”]; B.D., supra, 66 Cal.App.5th at p. 1224 [court
“determined that they did not fulfill a parental role”].) The appellate courts
variously concluded the records were insufficient to discern whether the
juvenile courts had considered factors Caden C. held were not pertinent to
the second element, or affirmatively demonstrated the juvenile courts had
done so. (L.A.-O., at pp. 211–212 [juvenile court’s “ruling was terse” and it
was unclear from court’s terminology whether it considered improper
criteria]; D.M., at p. 271 [juvenile court considered “factors which Caden C.
has explained are inappropriate”]; J.D., at p. 865 [“court appears to have
applied the wrong legal standard under Caden C. in evaluating the second
element”]; B.D., at pp. 1228–1229 [court relied “on improper factors”].)
11
In B.D., the court also expressed concern that the juvenile court’s
reliance on improper “ ‘parental role’ ” factors in finding an insufficient
parent-child relationship may have impacted the court’s balancing of the
“harm of severing the natural parent-child relationship to the benefits of a
new adoptive home in the crucial third step of the analysis.” (B.D., supra,
66 Cal.App.5th at p. 1230.) But, again, there is no such concern here, as the
juvenile court found mother established a parent-child relationship. Nor did
the court, in considering the third element improperly compare mother’s
“parental” relationship with that of the prospective adoptive parents. Rather,
the court, after hearing the parties’ arguments specifically addressing Caden
C., and after considering the nature of the relationship between mother and
minor, ruled it was “abundantly clear that it would be more detrimental [to
minor] to not have that type of stability that she needs and desires.”
Mother also focuses on the court’s single use of the words “parental
role” in stating, “I also agree with [minor’s counsel] that the visits were very
fun visits and visits where the mother did take some parental roles in it and
nurtured her, but they were also visits that could be referred to as friendly.”
Although mother does not maintain this word choice constitutes reversible
error per se, she does assert the “phrase ‘parental role’ is not appropriate and
ought not to have been used here.”
To begin with, as mother acknowledges, the more recent decision of In
re A.L. (2022) 73 Cal.App.5th 1131, demonstrates otherwise. There, the
appellate court explained that “contrary to father’s position, in assessing
potential detriment, it was proper for the juvenile court to consider whether,
and the extent to which, the caregivers and father occupied parental roles
with the minor. In fact, the Supreme Court acknowledged that ‘[i]n many
cases, “the strength and quality of the natural parent/child relationship” will
12
substantially determine how detrimental it would be to lose that relationship,
which must be weighed against the benefits of a new adoptive home.’ (Caden
C., supra, 11 Cal.5th at p. 634.) Thus, the strength and quality of the
parent’s relationship with the child, including whether that parent has a
parental role, is a relevant consideration to the court’s detriment finding.”
(A.L., at p. 1157.)
While mother asserts A.L. represents a “split in authority,” we do not
agree. Rather, other cases illustrate that a juvenile court’s reliance on a
parent’s lack of any “parental role,” without more, is problematic. For
example, the appellate court in Kathrine J. stated, “problems arise when
juvenile courts use the phrase ‘parental role’ without explaining which
meaning(s) they impart to it.” (Katherine J., supra, 75 Cal.App.5th at p. 319.)
Nevertheless, the court affirmed the juvenile court’s ruling that the father
had not carried his burden as to the beneficial relationship exception, despite
the lower court’s statement that the father “ ‘has not occupied a significant
parental role’ ” with the minor. (Id. at p. 315.) The juvenile court had gone
on to “explain[] what it meant by this”—“that father’s unresolved issues with
substance abuse and violence had consistently destabilized [the minor’s] life
for years, fatally compromising father’s attempts to maintain a strong,
positive emotional attachment with her.” (Id. at p. 320.) In the instant case,
of course, the juvenile court found mother had carried her burden to establish
a positive relationship with minor. Moreover, the court more than
adequately elaborated on the nature and quality of mother’s relationship
with minor, illuminating its reference to mother taking “some parental roles”
as to minor.
Nor did the juvenile court improperly rely on mother’s “continued
struggles with the issues that led to dependency.” (See Caden C., supra,
13
11 Cal.5th at p. 637.) Mother contends her “history with substance abuse
and domestic violence, even if not fully resolved, may not be used as a basis
for determining the fate of the parental relationship by assigning blame,
making moral judgments about fitness of the parent, or rewarding or
punishing a parent.” Mother is correct in this regard. But that is not what
the juvenile court did here. To the contrary, it is clear the court’s brief
comment on mother’s continued struggles evidenced empathy and
understanding, and merely pointed out the unfortunate reality that minor
had spent more than half her life outside of mother’s care. (See Katherine J.,
supra, 75 Cal.App.5th at pp. 319–320 [juvenile court properly observed that
the father’s “unresolved issues with substance abuse and violence” had
“fatally compromise[ed]” his effort to maintain a strong relationship with the
minor].)
Finally, the juvenile court did not improperly focus on “the bond and
parental role of the prospective adoptive parents” and thus fail “to properly
consider the ultimate question of whether termination of parental rights
would be detrimental to [minor] due to her relationship with mother.” To the
contrary, the record demonstrates that the juvenile court correctly
understood its task was to evaluate whether terminating mother’s parental
rights “would be detrimental” to minor. The court specifically stated, “I . . .
do not believe it would be detrimental to [minor’s] best interest to terminate
parental rights, and I say that taking into account truly the mostly very good
relationship and visitation that [minor] enjoyed with mother.” It further
stated, it “would be more detrimental” to minor “not to have that type of
stability that she needs and desires.” Thus, the court understood the third
element requires “a delicate balancing” act and it was called on to determine
whether “the benefit of placement in a new, adoptive home outweigh[s] ‘the
14
harm [the child] would experience from the loss of [a]significant, positive,
emotional relationship with [the parent].’ ” (Caden C., supra, 11 Cal.5th at
pp. 633, 640.)
In referring to the prospective adoptive parents, the juvenile court
stated minor had been in their home for two years, it “was pretty clear that
that is her world,” that she looked to them “as her parents,” and that minor
was “happy . . . and stable in that home,” and the benefit of permanence for
minor outweighed any benefit derived from the “friendly” and “fun” visits
with mother. Consideration of the benefit to minor from continuing her
relationship to mother and the benefit of staying in her foster parents’ care is
precisely what the third element requires. And, although Caden C. warned
this analysis “is decidedly not a contest of who would be the better custodial
caregiver” since a child cannot be returned to the parent’s custody at a
section 366.26 hearing (Caden C., supra, 11 Cal.5h at p. 634), the court here
did not compare mother’s parenting abilities to those of the foster parents.
In sum, the trial court did not abuse its discretion in ruling mother
failed to carry her burden to establish a beneficial-parental relationship
exception to termination of parental rights.
DISPOSITION
The order terminating mother’s parental rights to G.S. is AFFIRMED.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Wiss, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A164018, In Re GS
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